NSW Public Health Amendment (Review) Bill 2017 (updated NSW No Jab No Play laws)
This Bill abolished the right to conscientiously object to vaccination for the purpose of enrolment in News South Wales early education and childcare services and it is the most severe attack on the rights of non and partially vaccinated children to access an early education to date.
From 1 January 2018:
- children who are unvaccinated due to their parent’s conscientious objection will no longer be able to be enrolled in child care
- it will be an offence (with a penalty of 50 penalty units) for a principal to fail to comply with the child care vaccination enrolment requirements
- it will be an offence (with a penalty of 50 penalty units) for a person to forge or falsify a vaccination certificate.
Children who are enrolled prior to 1 January 2018 will not be affected by the changed requirements, that is, if enrolling a child in 2017 to commence child care in 2018 parents may continue to submit any one of the four existing forms (see Forms here).
Which children are exempt from the new requirements?
The following are permanently exempt from the new requirements:
- children who are enrolled in formal schooling (for example, attending before and after school care both on school campuses or externally)
- services providing education and care to children primarily on an ad hoc, temporary or casual basis (for example, crèches in shopping centres and gyms).
The following classes of children are temporarily exempt from the new requirements and the documentation must be provided within 12 weeks from the date of enrolment in the child care facility:
- those who are subject to a guardianship order under section 79A of the Children and Young Persons (Care and Protection) Act 1998
- those who have been placed in out-of-home care
- those who are being cared for by an adult who is not the child’s parent due to exceptional circumstances such as illness or incapacity
- those who have been evacuated following a state of emergency (for example, a declared natural disaster)
- Aboriginal or Torres Strait Islander children.
Medical exemption breakthrough!
A family has been able to get a medical exemption letter from their appropriately qualified GP upheld by the Administrative Appeals Tribunal without needing to use a Medicare medical exemption form This enabled them to be able to reinstate their childcare payments/rebates and FTB A lump sum supplementary payment.
The main 2 points that the Administrative Appeals Tribunal has helpfully confirmed are that:
(1) the GP is NOT required to use the AIR’s “IM011” form to certify a medical contraindication (which results in a ME), and
(2) the GP is NOT restricted to what the Australian Immunisation Handbook states are “valid” medical contraindications, because the GP importantly retains clinical autonomy.
The legislation was already clear about these points but the Department of Human Services has up to now been blatantly disregarding it, assuming an illusory power to add its own restrictions.
So what this means is that you need an appropriately qualified general practitioner to write a letter that states that they have examined your child and their medical history and considered the Immunisation Handbook contraindications guidelines and have come to the decision that vaccinating is medically contraindicated for your child. You then qualify for a medical exemption and can still access your childcare payments/rebates and FTB A lump sum supplementary payment. Here is the AAT ruling re ‘No Jab, No Pay’, 15 Feb 2017 (redactions applied) for you to show your GP and for your own reading. This great result is important because it leaves the decision of whether a medical exemption is appropriate back in the hands of the GP and NOT in the hands of the Department of Human Services (which includes Centrelink, Australian Immunisation Register, Medicare etc)
Who is an appropriately qualified general practitioner?
They were considered by the tribunal as being:
- a recognised Fellow of the Royal Australian College of General Practitioners, and/or
- registered as a general practitioner under the Vocational Register of General Practitioners, and/or
- a medical practitioner who meets Australian College of Rural and Remote Medicine fellowship standards.
You can look up your GP to see if they are eligible (please see compliance notes,section 2 on page 2 of the GP letter) to provide a medical exemption letter here.
This is letter was drawn up by the wonderful Bronwyn Hancock, for your GP to fill out to satisfy the medical exemption for your medically contraindicated child.Certification-of-medical-contraindication-by-GP-No-Jab-No-PayAlternative-to-AIRs-IM011-form(1)
Just get your GP to send it in to the Australian Immunisation Register and they will let Centrelink know that your child now meets all of the immunisation requirements. Please let me know how you go!
1) The “No Jab, No Pay” vs “No Jab, No Play” Federal legislation
• “No Jab, No PAY”
This is Commonwealth legislation which affects families nationwide, but only to receipt of some social security benefits from the Commonwealth Government (via Centrelink). It does not stop enrolment or attendance in childcare directly. Apart from the Child Care Rebate and all Child Care Benefits (including Grandparent Child Care Benefit, Special Child Care Benefit or Jobs, Education and Training Child Care Fee Assistance), the only affected benefit is the Family Tax Benefit A end-of-year annual supplement (presently $726 per child). The other FTB Part A and Part B benefits are NOT affected. For 2016 only, you will receive half of your FTB A supplement payment as the legislation did not come in to effect until 1 January 2016. So if you were eligible for the supplement payment on the 31 December 2015 then you are eligible for $363 per child this year only. The FTB supplement payments are being phased out for everyone regardless of vaccination status by 2018.
• “No Jab, No PLAY” Victoria
This is the state legislation that has been passed this year in Victoria, so it only applies in Victoria and relates only to access to child care and kindergarten in Victoria after 1 January 2016.
Victorian 16 week grace period for enrolment in to childcare:
If you live in Victoria and may be affected after 1 January 2016 by the Victorian legislation, enrolment of your child (confirmed in writing) before 1 January 2016 will protect you from being impacted by this legislation. There is also a grace period of 16 weeks for vulnerable children;
Children eligible to be enrolled under the grace period include:
- children identified as Aboriginal or Torres Strait Islander
- children who hold a health care card, or whose parents hold a health care card, a pensioner concession card, a Veterans Affairs Gold or White card
- children who are refugees or asylum seekers
- children who are known to child protection (that is, children who have been the subject of a report under the Children Youth and Families Act 2005, or who are on a protection order under the Act, or whose families are receiving support from a registered community service, including through a referral to CHILDFIRST or through Services Connect)
- children who are living in emergency or crisis accommodation, accommodation supported by the Department of Health and Human Services, or is of no fixed address due to family violence or the risks of family violence or due to homelessness
- children evacuated from their place of residence due to an emergency such as a flood or bushfire
- children in emergency care within the meaning of section 3(1) of the Children, Youth and Families Act 2005
- children in the care of an adult who are not the child’s parent due to exceptional circumstances such as illness or incapacity
- children from a multiple birth of triplets or more
- any other circumstance specified in guidelines made by the Secretary to the Department of Health and Human Services.
The legislation does NOT allow for the children’s enrolment to be cancelled after the grace period ends, it only specifies that the childcare centre continue to provide support and information to the family.
“No Jab No Play” Queensland
Similar legislation has also been passed this year in Queensland but it only allows child care centres to be able to deny child care access if they choose to based on vaccination staus(in Queensland). Enrolment of your child in child care in Queensland before 1 January 2016 will not provide any protection against any impact of this legislation.
For those of you who are able to qualify for a medical exemption you can find the form here.
What can you do if your child is refused enrolment in to childcare?
For those parents whose children are banned from being enrolled in childcare based on their child’s vaccination status, you can also make a human rights complaint based on the fact that the state legislation breaches the federal Disability Discrimination Act 1992.
Strange as it may seem, our children are recognised as having a disability because of their lack of vaccination so you can make a complaint to the Human Rights Commission. Here is a link that outlines how to place a complaint
UPDATE: A great new blog that spells out your rights under the Disability Discrimination Act 1992, here is something that discriminated parents can do to fight back themselves.
Note however, in relation to all of these situations, the information in paragraph 4 below.
Which vaccines are linked to the benefits
The benefits to which “No Jab, No Pay” relates are not linked to the National Immunisation Program (NIP) schedule.
The benefits are instead linked to schedules that are set independently by the Minister.
The benefits-linked schedules include fewer vaccines than are on the NIP, especially in the case of older children, as seen in the schedules set out in these two legislative instruments:
• Child Care Benefit (Vaccination Schedules) (Education) Determination 2015
• Family Assistance (Vaccination Schedules) (DSS) Determination 2015
They do not include any of the vaccines that are on the NIP schedule for over 5 years of age (e.g. they do not include the HPV vaccine).
They also do not include all of the vaccines that are on the NIP schedule for under 5 years of age (e.g. they do not include any doses of the rotavirus vaccine, nor the hepatitis b vaccine birth dose, which is on the NIP for infants under 7 days old).
“Valid consent” restriction upon Immunisation Providers
Immunisation Providers (IPs) will continue to be prohibited at law from vaccinating without voluntary and informed consent.
Voluntary consent requirement
The Immunisation Provider (IP) will continue to have a legal duty of care, in relation to each vaccine before it is administered:
• to make a reasonable attempt to ensure that the parent’s consent is given “voluntarily in the absence of undue pressure, coercion or manipulation” (as explained in Section 2.1.3 Valid Consent of the Australian Immunisation Handbook)
Without voluntary consent, an IP cannot legally vaccinate the child and doing so may result in the IP being held liable for civil assault and any resultant injury, loss or damage.
Law versus guidelines, and how that affects responsibility and liability
If the parent requests a GP/IP to assess their child in relation to:
• whether a medical exemption is appropriate (i.e. one or more vaccinations are “not in the best interests of the child’s health”), and/or
• determining the appropriate catch-up schedule (i.e. which, if any, vaccine doses are appropriate to include and when), the GP/IP ought to be informed or reminded of the following, before submitting to strictly follow the wording in any guide or form:
The Australian Immunisation Handbook is only a general guide
The “No Jab, No Pay” and related legislation directs the Immunisation Provider (IP) and/or general practitioner to the Australian Immunisation Handbook 10th edition (“the Handbook”) for guidance in relation to assessment for medical exemptions or catch-up schedules.
However, and contrary to the restrictive and definitive appearance of the medical exemption form, the Australian Government states in disclaimers that the Handbook “reflects the views of the authors and not necessarily the views of the Australian Government” and is only “a general guide”. It warns that “it is possible that errors have been missed” in relation to “dosage recommendations”, which “are continually being revised and new adverse events recognized.” The Handbook itself is also not definitive in a number of areas.
Because it has been “identified that the assessment of medical contraindication can be complex” (as stated in the Explanatory Notes to the “No Jab, No Pay” Bill), an amendment made to the relevant legislation is that “a general practitioner, not a recognised immunisation provider, would now be required to make the certification in relation to medical contraindication”.
The legislation does not refer to any medical exemption form, the only condition it imposes in relation to assessment of medical contraindications is that: “The child meets the immunisation requirements if a general practitioner has certified in writing that the immunisation of the child would be medically contraindicated under the specifications set out in the Australian Immunisation Handbook.” (new Subsection 6(3)(a) of the Act)
The Senate also passed a Notice of Motion on 23 November 2015 recognising “that it is of critical importance that general practitioners remain able to use their clinical judgement in assessing children who are eligible for medical exemption”.
Liability will still likely rest with IP/GP or parent
The Australian Government, having taken such steps to ensure that the responsibility for such decisions will be carried by entities other than itself – primarily general practitioners (for medical exemptions), Immunisation Providers (for catch-up schedules) and/or parents, continues to “not accept any liability for any injury, loss or damage incurred by use of or reliance on the information” in the Handbook.
For further information, please contact us and we will try our best to help you.
This information was compiled by Bronwyn Hancock.
There is a follow up post that you can find here: