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Changes in circumstances of the operation of member schools

Responsible persons

The Education Act 1990 (NSW) (the Act) defines a 'responsible person' as:

  1. the proprietor of the school and, if the proprietor is a corporation, each director or person concerned in the management of the school, or
  2. a member of the governing body of the school, or
  3. the principal of the school.

Where the proprietor of a school is a corporation, persons concerned in the management of the school may include trustees.

Where the approved authority for a system of non-government schools formed under the Act has management responsibilities for member schools, 'responsible persons' are also those persons and/or bodies within that system who can direct the principal in relation to aspects of governance and management of the school upon which the Minister's approval of the system pursuant to Part 7 Division 2 of the Act was based.

The Act requires that any person defined as a 'responsible person' under the Act (and any other person or body exercising similar functions in relation to the management and operation of the school) be a fit and proper person or body and be able to carry out their responsibilities in relation to the operation of the school. Specifically, the Act requires that NESA be notified if a person defined as a 'responsible person' under the Act:

  • is convicted of an offence that is punishable by imprisonment for twelve (12) months or more

or

  • becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvency debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit

or

  • if the person is a corporation and is the subject of a winding up order or has had a controller or administrator appointed.

NESA is also to be notified by the approved authority for a system of non-government schools if the proprietor, a ‘responsible person’ or governing body of a member school determines that a ‘responsible person’ or governing body of the school is not fit and proper.

In the above circumstances the Act requires that the approved authority for a system of non-government schools notify NESA and at least one other 'responsible person' of the circumstances surrounding the conviction, bankruptcy, insolvency, winding up order or appointment of the controller or administrator as soon as practicable after it occurs. Notifications in relation to these matters are subject to the NESA Privacy Management Plan. There is no notification requirement for the above if the person concerned ceases to be a 'responsible person'.

The Act also requires NESA be notified if a 'responsible person' becomes a mentally incapacitated person and becomes:

  • a patient at an institution because of that incapacity

or

  • a protected person under the Protected Estates Act 1983.

Notifications in relation to these matters are subject to the NESA Privacy Management Plan. There is no notification requirement for the above if the person concerned takes leave from the position or ceases to hold the position.

School moves or is sold

The Act requires that the Minister be notified if the school moves or is sold. To comply with this requirement the approved authority for a system of non-government schools is to notify tNESA. Specifically:

  1. if a member school or part of a school proposes to move to new premises, written notice is to be given by the system authority to NESA at least three (3) months before relocation. This particularly relates to moving premises and buildings connected with the teaching of courses of study, the amenities for teachers and students participating in those courses of study and boarding facilities provided for students by the school
  2. if the legal entity that owns a registered non-government school is sold, written notice of the sale is to be given by the purchaser to NESA within seven (7) days of the completion of the sale.

For the purposes of this section of the Act, relocation or new premises means any site where the street address of that site is different to, or in addition to, the street address at which the school is currently registered on the Certificate of Registration.

Returns to NESA

The Act also makes provision for the approved authority for a system of non-government schools to provide returns to NESA. Specifically, the approved authority must provide returns to NESA concerning the requirements for registration in relation to the school in a form, and at the times, approved by NESA for that purpose. NESA requires notification in relation to changes to certain aspects of the operation of member schools in relation to registration. The approved form may require that the matters included in any such return are certified.

Evidence of compliance

The approved authority for a registration system must describe the processes the authority has in place by which:

  • the proprietor of member schools and, if the proprietor is a corporation, each director, trustee or person concerned in the management of the member school or schools
  • for approved authorities with management responsibilities for member schools, those persons and/or bodies within such a system who can direct the principal (or equivalent) in relation to aspects of governance and management of the school upon which the Minister's approval of the system pursuant to Part 7 Division 2 of the Act was based
  • each member of the governing body of member schools, and
  • the principal (or equivalent) of each member school

are informed of their responsibilities under the Act, any regulations under the Act and NESA requirements, including any duties of disclosure or notification.

The approved authority for a registration system must have in place a process for informing NESA as soon as practicable following a change in relation to:

  • the name of the representative of the authority for the registration system
  • the names and addresses of the member schools included as part of the approved system of non-government schools with specific reference to member schools that are new to the system and/or schools that have withdrawn from the system.

The approved authority for a registration system must provide, and document its process for providing, a return to NESA if, following an investigation by a relevant agency or authority, any member school or the approved authority, where the approved authority has management responsibilities for member schools, is formally notified in writing by that agency or authority of an alleged breach by the member school or approved authority of any the following legislation:

  • Ombudsman Act 1974
  • Child protection (Working with Children) Act 2012
  • Teacher Accreditation Act 2004
  • Disability Discrimination Act 1992
  • Work Health and Safety Act 2011
  • Environmental Planning and Assessment Act 1979
  • Food Act 2003
  • Explosives Act 2003
  • Building Code of Australia.

Such notification must be provided to NESA within fourteen (14) working days of the formal notification of an alleged breach.

The approved authority for a registration system must provide, and document its process for providing, a return to NESA  when changes occur to the member schools in relation to:

  • management and operation of member schools
    • where a notification in relation to a 'responsible person' is required (see 'Responsible persons' above)
    • where there is an appointment of a new principal (or equivalent) NESA must be notified within one (1) month of such change(s) occurring. Where the approved authority has management responsibilities for member schools, notification could be made by the approved authority in an annual return to NESA at the beginning of each school year. Where, due to unforeseen circumstances, throughout a year a variation occurs to the information contained in an annual return from a registration system, for example a new principal is appointed, the approved authority must notify NESA within one (1) month of such change occurring:
      • where the school has been sold, written notice is to be given by the purchaser to NESA within seven (7) days of completion of the sale
      • where the school's proprietor changes for any other reason, written notice is to be given by the new proprietor to NESA within seven (7) days of the change
      • where the school intends to change its name, written notice is to be given one (1) month prior to such change taking effect
      • where the school closes or ceases to operate, (see section 2.5.9 of this manual) written notice is to be given within one (1) month of the change
  • staffing of a member school
    •  where there is a turnover of half or more of the teaching staff during any twelve (12) month period, NESA must be notified at the commencement of the next new term.
  • curriculum
    • where a member school intends to deliver all or a significant part of students' courses of study by means of distance education, NESA must be notified at least nine (9) months prior to the implementation of such a change to seek approval for the change. This excludes situations where a member school that does not normally deliver courses by means of distance education provides units of work/activities for a student who has been granted leave by the principal
  • premises and buildings - where a member school intends to:
    • add another campus, written notice must be given to NESA by the approved authority at least three (3) months prior to the implementation of such a change
    • move to a new site, written notice must be given to NESA by the approved authority three (3) months prior to the relocation
    • relocate the boarding facilities on the member school site or move the facilities to a new site, written notice must be given to NESA by the approved authority three (3) months prior to the relocation
    • close or cease operating a campus, written notice must be given to NESA by the approved authority within one (1) month of such a change.
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