NESA Schl Gvernance Cmpliance Requirements supprting the NSW Educatin Act 1990 NSW Educatin Standards Authrity (NESA) Registratin Systems and Member Nn-gvernment Schls (NSW) Manual (Refer t Schl Gvernance Sectin 5.9 Management and peratin f the schl) Registratin Systems and Member Nn-gvernment Schls NSW Educatin Standards Registered and Accredited Individual Nn-gvernment Schls (NSW) Manual (Refer t Schl Gvernance Sectin 3.9 Management and peratin f the schl) Registered and Accredited Individual Nn-gvernment Schls NSW Educatin Standards Official Ntice: 2017 Amendments t Nn-gvernment Schl Registratin Manuals NSW Educatin Standards Certificatin f financial viability :: RANGS State NSW Educatin Act 1990 (last mdified 1 January 2017) EDUCATION ACT 1990 NSW Educatin Act 1990 Sectin 47 EDUCATION ACT 1990 - SECT 47 Registratin requirements fr nn-gvernment schls NSW Educatin Act 1990 Sectin 83C EDUCATION ACT 1990 - SECT 83C Financial assistance nt t be prvided t schls that perate fr prfit NSW Educatin Act 1990 Sectin 83L EDUCATION ACT 1990 - SECT 83L Nt-fr-prfit guidelines NSW Nt-fr-prfit Guidelines fr nn-gvernment schls Nt-fr-Prfit Guidelines CECNSW cntact is Margaret O Cnnr, Accuntability and Cmpliance, (margaret.cnnr@cecnsw.cathlic.edu.au / 9287 1547) 4 May 2017
NESA NSW Educatinal Standards Authrity s Schl Gvernance Cmpliance Requirements The January 2017 changes t NESA (frmerly BOSTES) registratin manuals include tw gvernance measures: Respnsible Persns must be a fit and prper persn rather than f gd character and a registered nn-gvernment schl must be financially viable. In additin t the gvernance measures NESA advises that the quality f teaching and learning will be assessed at the time f registratin (refer sectin 7.3 system schls and sectin 5.3 individual schls). NESA Manual/Act Gvernance Requirement Cmpliance Element Related 5.9 Schl Systems 3.9 Independent Schls /S47 NESA Management and peratin f the schl 10 NESA gvernance requirements 1. Register all Respnsible Persns wh must be a fit and prper persn 2. Prvide Prper Gvernance thrugh delegatin, supervisin and cde f cnduct 3. Recrd and adhere t plicies and prcedures 4. Register and avid Cnflicts f Interest 5. Operate n a Nt-fr-Prfit basis and register Related Party Transactins 6. Recrd and prvide nging prfessinal learning and gvernance training t Respnsible Persns 7. Recrd and prvide inductin and gvernance training t all new Respnsible Persns 8. Register annual independent audits f financial statements t Australian Accunting/Auditing Standards 9. Ntify BOSTES f change f character f Respnsible Persns, if schl mved r sld, f alleged breaches f law r bankruptcy. 10. A registered nn-gvernment schl must be financially viable. 5.9.1 and 3.9.1 Wh is a Respnsible Persn? A Respnsible Persn fr a schl is: The prprietr f the schl, and if a crpratin then each directr r persn cncerned in the management f the schl Each member f the gverning bdy/bard f the schl 2
The principal f the schl 5.9.2 and 3.9.2 / S 56 and S 59 What is meant by a fit and prper Each Respnsible Persn and the gverning bdy f the schl must persn r gverning bdy? be a fit and prper persn and shuld avid the fllwing: having debts t any State/Territry gvernment r the Cmmnwealth being bankrupt, inslvent, subject t curt rders r external administratin; r a recrd f unsatisfactry financial management being cnvicted, r charged with, any ffence in relatin t children, dishnesty r vilence engaging in a deliberate pattern f cnduct f immral r unethical behaviur. 5 Year time frame f registratin During the past five years, the actins f a Respnsible Persn r a prpsed Respnsible Persn cannt cntribute twards the refusal r cancellatin f a schl registratin Nt-fr-Prfit status Nte: NESA manuals d nt specifically address the Nt-Fr-Prfit status f sme nn-gvernment schls. NESA manuals are applicable t bth nt-fr-prfit and fr prfit nn-gvernment schls. The NSW Educatin Act 83C and the ACNC Act Divisin 45 address the ntfr-prfit requirement fr registered schl charities. 5.9.3.1 and 3.9.3.1 A registered nn-gvernment schl must have plicies and prcedures in place fr the prper gvernance f the schl Fr the vast majrity f schls nt perating fr prfit, the requirements f the Australian Charities and Nt-fr-prfits Cmmissin (ACNC) apply. ACNC sets ut five (5) gvernance standards fr the peratin f all Australian registered charities including Cathlic schls and systems f schls: Registered charities must be nt-fr-prfit and wrk twards their charitable purpse Registered charities must be accuntable t their members and allw cncerns t be raised Registered charities must nt cmmit a serius ffence (such as fraud) under any Australian law Respnsible Persns must be suitable and nt disqualified under Crpratins Law 2001 r by ACNC Duties f Respnsible Persns are understd and carried ut accrding t ACNC Standards. Schl plicies and prcedures include: a schl charter/cnstitutin setting ut the gvernance structure and rles and respnsibilities f each Respnsible Persn See ACNC Act 2012 and NSW Ed Act 1990 S83(c) fr Ntfr-prfit status and definitins 3
5.9.3.2 and 3.9.3.2 Each Respnsible Persn must avid Cnflicts f Interest with the schl, their rle and decisins f the gverning bdy 5.9.3.3 and 3.9.3.3 / S 83C Related Party Transactins by the schl are examples f Cnflicts f Interest and must be managed respnsibly and transparently a delegatins schedule identifying the respective authrity f each rle in the gvernance structure; and prcedures fr withdrawal f a delegatin f authrity frm a Respnsible Persn a dcument f the supervisry and reprting arrangements fr each Respnsible Persn including the schl executive and gverning bdy/bard recrds f gvernance decisins including minutes f frmal meetings f the gverning bdy; t be kept 7 years minimum a dcument f the schl s legal cmpliance framewrk referencing relevant legislatin. This dcument is an example. a dcument f the schl s risk management framewrk and prcedures fr reviewing and mitigating risks t nn-cmpliance a register f the schl s Respnsible Persns; recrding within 28 days f when a persn cmmenced and ceased a rle; register t be kept 7 years minimum Schl plicies and prcedures fr dealing with Cnflicts f Interest: a plicy statement defining Cnflict f Interest in the schl cntext and measures t avid and mitigate a prcedure/register f annual declaratin by each Respnsible Persn f actual, perceived r ptential Cnflicts f Interest a prcedure and minutes f declaratins f Cnflicts f Interest in relatin t specific agenda items in frmal meetings Respnsible Persns must act t mitigate a Cnflict f Interest e.g. by absenting neself frm assciated decisin-making r advising retaining recrds f Cnflicts f Interest registers and minutes fr 7 years minimum A Related Party Transactin (RPT) is where a Respnsible Persn, acting n behalf f the nn-gvernment schl, prvides a financial r tangible benefit t a Related Party such as him/herself, spuse r relatives, friends, clse assciates r related rganisatins. The RPT may include a cash r in-kind payment in cnnectin t the supply f prperty, gds r services t r by the schl. A schl must have plicies and prcedures fr RPT: See NSW Educatin Act 83C and NSW NFP Guidelines fr mre detail n Related Parties 4
keep a register f all RPT where each Respnsible Persn disclses each RPT and recrds the degree f materiality. keep RPT register and recrds fr 7 years minimum. arrange an annual external audit f the RPT register. 5.9.3.4 and 3.9.3.4 / S47 Prfessinal Learning fr Respnsible Persns ntify NESA when a cntract with an external auditr f RPT is terminated befre the expiry date and the reasns fr early terminatin. Prper Gvernance requires the schl t ensure that all Respnsible Persns have relevant qualificatins, skills and experience fr gverning the schl. A schl must have plicies and prcedures fr prfessinal learning: keep a register f prfessinal learning fr all Respnsible Persns including pre-existing qualificatins and prfessinal experience. Keep prfessinal learning register fr 7 years minimum. Ensure each Respnsible Persn cmpletes the 12 hurs f mandatry gvernance training in each 3 year perid (r 4 hurs per year). Gvernance prfessinal learning must include a schl cntext and be delivered by a NESA apprved training prvider. Onging prfessinal learning must be relevant t the develpment f the Respnsible Persn in relatin t their rle e.g. educatin, leadership, finance, cmpliance, risk management. 5.9.3.5 and 3.9.3.5 Inductin Prcess fr new Respnsible Persns Includes mandatry gvernance training Prper Gvernance requires that all new Respnsible Persns taking up a respnsible psitin in the schl shuld be fully infrmed f the 5
situatin at the schl and receive prmpt schl-based inductin including mandatry gvernance training. Respnsible Persns in Acting Psitins shuld undertake 4 hurs f gvernance training when the Acting Psitin is lnger than 3 mnths 5.9.3.6 and 3.9.3.6 External independent attestatin audit f annual financial statements NSWDE requires State Per Capita funds t be audited by an ASIC registered accuntant/auditr A schl must have plicies and prcedures fr inductin: keep a register f schl-based inductin fr all Respnsible Persns including mandatry gvernance training within 3 mnths f taking up the respnsible psitin Keep inductin register fr 7 years minimum including: Qualificatins and experience relevant t the rle Details f cmpletin f gvernance training Acknwledgement f receipt f dcuments. Ensure each new Respnsible Persn receives cpies f dcuments listed in 5.9.3.1 that is: Schl charter, gvernance structure, rles f Respnsible Persns, delegatins schedule, supervisry arrangements, reprting requirements, cde f cnduct f Respnsible Persns, legal cmpliance framewrk, risk management framewrk, Mst recent audited financial statements f the schl Recent minutes f meetings/decisins f Respnsible Persns Prper gvernance requires the schl s annual financial accunts t be audited and certified by an external independent auditr. The schl prprietr must prvide evidence that the annual audit and certificate: Are cmpleted by a qualified accuntant recgnised by CPA Australia, Institute f Chartered Accuntants r Institute f Public Accuntants Cmply with Cmmnwealth and NSW Gvernment requirements (Australian Accunting/Auditing Standards) Nt cmpleted by a persn/bdy with whm the schl has anther business relatinship in additin t audit services Crpratins Law 2001 6
Nt cmpleted by a persn/bdy with whm any Respnsible Persn f the schl has a Cnflict f Interest 5.9.4 and 3.9.4/S47 Financial Viability New requirement in 2017 5.9.5 and 3.9.5 /S63A NESA must be ntified f certain matters Keep annual audit register and recrds fr 7 years minimum. Ntify NESA when a cntract with an external auditr is terminated befre the expiry date and the reasns fr early terminatin. A registered nn-gvernment schl must be financially viable The prprietr f a systemic nn-gvernment schl is required t maintain evidence t demnstrate the current financial viability f the schl at the time f making an applicatin fr initial r renewed registratin. The evidence f financial viability is prescribed by NESA and is t be in the frm f a certificatin r warrant by the registratin system r anther bdy r persn apprved by NESA fr that purpse. The prprietr f a systemic nn-gvernment schl is required t maintain evidence relating t the member schls f the registratin system f either a: Certificatin f Financial Viability frm the registratin system authrity r anther NESA apprved bdy r persn assessed against the NESA Financial Viability Framewrk, r a Financial Viability Warrant frm the registratin system authrity r anther NESA apprved bdy r persn prviding assurance f financial viability. The NESA Certificatin f Financial Viability, Financial Viability Framewrk and the Financial Viability Warrant are published n the NESA registratin website Certificatin f financial viability :: RANGS NESA, and at least ne ther Respnsible Persn f the schl, must be ntified as sn as practicable when a Respnsible Persn f the schl: Is cnvicted f an ffence punishable by imprisnment f 12 mnths r mre Becmes bankrupt r inslvent r takes illicit benefit 7
If the persn is a crpratin and is subject t winding up r a cntrller r administratr has been appinted Becmes mentally incapacitated As a patient at an institutin fr that incapacity As a prtected persn under the NSW Trustee and Guardian Act 2009 The schl prprietr and/r the principal must ntify NESA when the schl is mved r sld. 3 mnths prir relcatin 7 days prir cmpletin f sale The Apprved Authrity fr a system f nn-gvernment schls must prvide NESA with infrmatin cncerning the registratin f each schl, in a frm, and at the times, apprved by NESA fr that purpse. State NSW Educatin Act 1990 (amended) Sectin 47, Sectin 83C and the NSW Nt-fr-prfit Guidelines (Sept 2015) NSW Educatin Act Gvernance Requirement Cmpliance Element Related Sectin 47 Part 7, S47 Registratin requirements fr nn-gvernment schls S47 Minister sets ut the cnditins fr registratin f schls in rder t receive recurrent funding T be a registered nn-gvernment schl in NSW: (a) schl must be a crpratin r anther legal entity apprved by the Minister (b) each Respnsible Persn fr the schl must be f gd character (b1) plicies and prcedures (p&p) fr prper gvernance f the schl are in place (c) any refusal/cancellatin f registratin in the past 5 years is nt attributable t the actins/intentins f the schl s Respnsible Persns 8
(d) teaching staff fr the schl have the necessary experience and qualificatins (having regard t accreditatin under the Teacher Accreditatin Act 2004) (e) educatinal facilities are adequate fr the curses f study prvided at the schl (f) schl premises and buildings are satisfactry (g) a safe and supprtive envirnment is prvided fr students: (i) schl p&p prvide fr the welfare f students, and (ii) persns wh are emplyed at the schl are emplyed in accrdance with Part 2 f the Child Prtectin (Wrking with Children) Act 2012, and (iii) schl p&p ensure cmpliance with Part 3A f the Ombudsman Act 1974 and the Child Prtectin (Wrking with Children) Act 2012, and (iv) student enrlment and attendance registers are maintained. (h) schl plicies relating t discipline f students attending the schl are based n principles f prcedural fairness, and d nt permit crpral punishment f students (i) if the schl prvides barding facilities, whether itself r by cntractual arrangement-the schl p&p ensure the safety and welfare f barders (j) cmpliance with the requirements set ut in Part 3 relating t prviding the minimum curriculum fr each level f schling, be it Primary Fundatin t Year 6, Secndary Years 7-10 r fr candidates f the Higher schl Certificate, Years 11-12. (k) schl p&p are apprpriate t ensure the persnal and scial develpment f students undertaking distance educatin, fr all r part f their curses f study (l) schl p&p ensure its participatin in annual reprting (f a kind determined by the Minister): (i) t publicly disclse the educatinal and financial perfrmance measures and plicies f the schl, and (ii) t prvide data t the Minister that is relevant t the 9
Sectin 83C / NFP Financial assistance nt t be prvided t schls that perate fr prfit Minister's annual reprt t Parliament n the effectiveness f schling in the State. ) (1) The Minister must nt prvide financial assistance t r fr the benefit f a schl that perates fr prfit. ) (2) A schl perates fr prfit if the Minister is satisfied that: (a) any part f its prprietr s schl assets r schl incme is used fr any purpse ther than fr the peratin f the schl, r (b) any payment is made by the schl t a related entity r ther persn r bdy: (i) fr prperty, gds r services at mre than reasnable market value, r (ii) fr prperty, gds r services that are nt required fr the peratin f the schl, r (iii) fr prperty, gds r services that is in any ther way unreasnable in the circumstances having regard t the fact that financial assistance is prvided t r fr the benefit f the schl by the Minister, r (c) any payment is made by the schl t a persn in cnnectin with the persn s activities as a member f the gverning bdy f the schl unless it is in reimbursement fr a payment made by the persn in cnnectin with the peratin f the schl. ) (3) The regulatins may specify whether r nt a schl perates fr prfit because f any particular use f assets r incme, any particular payment in relatin t the schl r any ther matter. ) (4) The Minister is nt bliged t terminate the prvisin f financial assistance if, fllwing an investigatin under this Divisin, the Minister is satisfied that: (a) terminatin f financial assistance is nt justified because f the minr nature f the relevant cnduct, r (b) mre apprpriate actin can be taken under sectin 83E. 10