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  5. Fit and proper person or body
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Fit and proper person or body

Each person defined under the Act as a ‘responsible person’, and any other person or body exercising similar functions in relation to the school as those of a ‘responsible person’, is a fit and proper person or body.

Section 47(b) of the Education Act requires each ‘responsible person’ for a non-government school to be a fit and proper person or body.

The Education Act defines a ‘responsible person’ as:

  • the proprietor of the school and, if the proprietor is a corporation, each director or person concerned in the management of the school, or

  • a member of the governing body of the school, or

  • the principal of the school.

This means that all of the above categories are considered to be ‘responsible persons’ under the Education Act.

The proprietor of a non-government school must ensure that each responsible person or body for the school is fit and proper. This includes the proprietor ensuring that the school’s ‘responsible persons’ and governing bodies have experience and expertise in administering a school and providing education at a school. The proprietor should consider whether the school’s governing body has governance arrangements in place to receive independent and professional advice about the way in which it complies with its obligations under the Education Act.

The proprietor must have policies and procedures for being assured that ‘responsible persons’ and the governing body of the school are fit and proper and continue to be fit and proper whilst holding the role of a ‘responsible person’ or governing body for the school. At a minimum, the proprietor must require each ‘responsible person’ for the school to sign a fit and proper statutory declaration prior to commencing as a ‘responsible person’ for the school and on at least an annual basis while the person continues to be a responsible person for the school.

In assessing whether the ‘responsible persons’ and governing body of a non-government school are fit and proper, NESA  will consider whether or not each ‘responsible person’ for the school has:

  • debts to any Australian state or territory Government or the Commonwealth Government

  • a record of satisfactory financial management, taking into account whether the ‘responsible person’ or body has been bankrupt, insolvent, subject to court orders or associated with an organisation placed under external administration

  • been convicted of, or charged with, an offence, including an offence in relation to children, dishonesty or violence

  • engaged in a deliberate pattern of immoral or unethical behaviour.

NESA will have regard to the nature and seriousness, frequency and recency of the above conduct.

The fact that a person may at some time have been convicted of an offence does not necessarily mean that they should not be regarded as being fit and proper. For example, the conviction may have been trivial or very distant in time, and may have been followed by years of exemplary conduct. Consequently, where a person has been convicted of an offence, it will be necessary to consider the nature of the offence, how long ago it was that the conviction was recorded, and the person’s conduct since the time of the conviction.

Where a person or governing body has been bankrupted insolvent, subject to court orders or associated with an organisation placed under external administration, the circumstances and distance in time of the bankruptcy or actions must be considered.

Whether a person or governing body has engaged in a deliberate pattern of immoral or unethical behaviour involves more complex considerations. Breaches of federal or state laws that fall short of constituting criminal offences may be trivial and unintentional. On that basis, they may not provide evidence of a person or governing body not being fit and proper. However, there will be occasions when non-criminal breaches of law may indicate the presence of moral turpitude such as where there is evidence of:

  • a pattern of non-criminal offences without sufficient remorse or a reasonable attempt at rectifying subsequent conduct;

  • the frequent and deliberate setting up of multiple corporate ventures which then fail may justify drawing the inference that those responsible are engaged in sharp practice.

These matters are not definitive but are used as an insight into the fitness and propriety of the responsible person or governing body. In the event that any of the above matters are established, NESA will also have regard to any explanations for that state of affairs including a determination regarding the nature and seriousness of the matter and the frequency of the conduct.

Evidence of compliance

The proprietor of a non-government school must have and implement documented policies and procedures in relation to the requirement for the school’s ‘responsible persons’ and governing body to be fit and proper with specific reference to:

  • maintaining information to demonstrate that the school’s ‘responsible persons’ and governing body have the experience and expertise to administer a school that provides an education for school students
  • each ‘responsible person’ for the school signing a fit and proper statutory declaration prior to commencing as a ‘responsible person’ for the school and at least on an annual basis while the person continues to be a ‘responsible person’ for the school
  • the statutory declaration is to include a response as to whether or not the responsible person has
    - ever been convicted of an offence against a law of an Australian state or territory or the Commonwealth of Australia
    - ever become bankrupt, insolvent or placed under external administration
    - been convicted of, or charged with, an offence, including an offence in relation to children, dishonesty or violence
    - ever been determined not to be a fit and proper person as prescribed under any law of an Australian state or territory or Australian Commonwealth
    - ever engaged in a deliberate pattern of immoral or unethical behaviour
    - been a responsible person for a non-government school or proposed non-government school where registration was refused or cancelled
  • maintaining a copy of each ‘responsible persons’ declarations for a period of seven (7) years after ceasing to be a ‘responsible person’ for the school
  • responding to information suggesting that a ‘responsible person’ for the school may not be fit and proper in order to ensure that the school’s ‘responsible persons’ and governing body are fit and proper at all times

notifying NESA  as soon as practicable if the school’s proprietor or a ‘responsible person’ or governing body of the school determines that a ‘responsible person’ or governing body of the school is not fit and proper.

 

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