New South Wales – How the No Jab No Play law passed

Public Health Amendment (Review) Bill 2017

This Bill abolished the right to conscientiously object to vaccination for the purpose of enrolment in News South Wales early education and childcare services.

Public Health Amendment (Vaccination of Children Attending Child Care Facilities) Bill 2017

On 06 April 2017, Walt Secord, the Shadow Minister for Health (ALP), introduced to the Legislative Council, a Bill to amend the New South Wales Public Health Act.

The object of this Bill is to amend the Public Health Act 2010 to prevent unvaccinated children being enrolled at child care facilities if the only reason that they are unvaccinated is a parent’s conscientious beliefs.

This was a private member’s Bill which was not passed as it was superseded by a government Bill. See Public Health Amendment (Review) Bill 2017 above.

Public Health Act Review 2016

During 2016, the New South Wales government undertook a Review of its Public Health Act, which included, among other things, a review of the conscientious objection exemption for the purpose of enrolment in early childhood education services in that state.

The Report on the Statutory Review of the NSW Public Health Act 2010 was tabled in parliament during November 2016 and included a number of recommendations relevant to the issue of so-called vaccine-preventable disease and vaccination. Most importantly for our purposes, it was recommended that the conscientious objection provision be retained.

Recommendation 31: The Public Health Act should not be amended to remove the conscientious objector exemption to enrolment in a childcare facility. (page 49)

Public Health Amendment (Vaccination of Children Attending Child Care Facilities) Bill 2013

During 2013, the conscientious objection provision was inserted into the NSW Public Health Act, despite a particularly aggressive, but ultimately unsuccessful, ‘No Jab No Play’ campaign orchestrated by Murdoch-owned media to have all unvaccinated children banned from early childhood education services in NSW.

Following legal advice and debate about the proposed 2013 amendment, the parliament took the decision to provide for exemptions for conscientious objection to vaccination on philosophical and religious grounds due to concerns that a vaccination requirement, without exemptions, would be in breach of the DDA, and necessarily expose childcare services to complaints of unlawful discrimination.

I am advised that on the issue of protection, section 48 of the Commonwealth Disability Discrimination Act dealing with discrimination against those with infectious disease will face problems as paragraph (b) states that “discrimination reasonably necessary to protect public health” will be determined by the level of risk. Clearly, a child with a vaccine-preventable disease poses a risk to other children. However, an unvaccinated child poses the risk in the future. The risk is that a court will not find a refusal to enrol an unvaccinated child is reasonably necessary to protect public health. This amendment will leave childcare centres open to challenges from parents who claim discrimination against their child. Exemptions under a Commonwealth or State law apply only to actions taken in direct compliance with the prescribed law. The New South Wales Public Health Act is not a prescribed law under the Commonwealth Disability Discrimination Act. (page 62)

Current Legislation

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