No Jab No Pay

Conditions on Child Care Subsidy and Family Tax Benefits

This page was last updated on 01 July 2018

Effective from 1 January 2016 except as otherwise noted

What is ‘No Jab No Pay’?

In November 2015, the federal parliament passed Social Services Legislation Amendment (No Jab, No Pay) Act 2015, abolishing the right to conscientiously object to vaccination for the purpose of eligibility to certain benefits provided under A New Tax System (Family Assistance) Act 1999 (Cth) (the Act).  The law took effect on 01 January 2016.


 

Will I still be able to enrol my child in childcare or early education services?

‘No Jab No Pay’ is a federal law applicable in all states and territories, however, the law does not prohibit enrolment in child care; it affects only eligibility to certain subsidies and benefits.  State laws determine enrolment criteria, so, whether or not you can still enrol your unvaccinated child in childcare or early education services (and as such become conditionally eligible for childcare subsidies) will depend on where you live.

Since 2015, three states, Queensland, Victoria, and New South Wales have enacted laws which affect the enrolment of unvaccinated children in childcare and early education services to varying degrees. To determine if your child is eligible for enrolment in childcare or early education services under state-based laws, please refer to the guides linked immediately below.

No Jab No Play (Qld)
No Jab No Play (NSW)
No Jab No Play (Vic)
Other states and territories


 

Which benefits are subject to the vaccination requirement?

Child Care Subsidy and a small percentage of Family Tax Benefit A are subject to a vaccination requirement.  See table and notes below.

Benefit / Subsidy Vaccination Requirement
Family Tax Benefit A * Yes *
Family Tax Benefit A Supplement ** No **
Family Tax Benefit B No
Family Tax Benefit B Supplement No
Child Care Subsidy Yes

 

* From 01 July 2018, the parents of those children not meeting either the vaccination requirement or 4 year old health check requirement, or both requirements, will have their Family Tax Benefit A reduced by approximately $28 per fortnight per child.

** From 01 July 2018, the Family Tax Benefit A Supplement will no longer be subject to a vaccination requirement, but is subject to a means test (currently approximately $80,000 per annum), so not all families of unvaccinated children will be eligible.  The Family Tax Benefit A supplement will be paid after the end of the 2018/2019 financial year.

Also see the AVN blog Family Tax Benefits – Vaccination Requirements from 01 July 2018.


 

Which age groups are subject to the vaccination requirement?

All children, from 0 to 19 years of age, are now subject to the vaccination requirement, however, as noted in the following section, only vaccines recommended for children aged 0 to 4 years are included in the vaccination requirement.


 

Which vaccines are included in the vaccination requirement?

The number and type of vaccines that a non-exempt child is required to receive in order to satisfy the vaccination requirement depends on the year of birth of the child, and in general, includes most, but not all vaccines recommended for children aged 0 to 4 years under the National Immunisation Program.

Importantly, the vaccination requirement does not include such vaccines as HPV and dTpa boosters recommended for older children under the School Vaccination Program. The required vaccines, based on a child’s year of birth, are listed in the two legislative instrument linked below.

Child Care Subsidy
Family Assistance (Immunisation and Vaccination) (Education) Determination 2018

Family Tax Benefit A
Family Assistance (Immunisation Principles and Vaccination Schedules) (DSS) Determination 2018


 

What are the permitted exemptions to the vaccination requirement?

As ‘No Jab No Pay’ abolished the right to conscientiously object to vaccination there are very few ways by which a child will be exempted from the vaccination requirement.  However, a favourable decision by the Administrative Appeals Tribunal (AAT) in early 2017 may make it easier for some parents to obtain a medical exemption for their children, and have it accepted by the Australian Immunisation Register.  See exemption category 1 below.

In addition, the decision-making principles, made under section 6 (7) of the Act, were amended on 09 August 2017, with effect from 10 August 2017, to include an additional category of exemption for children who react with aggression when faced with a medical procedure.  See exemption category 2 below. Permitted exemption categories are listed in the table below, referenced to relevant sections of the Act.

Exemption Category Reference
Medical contraindication to vaccination s 6(3)(a)
Secretary (of the Commonwealth Department of Human Services) determines in writing that the child meets the immunisation requirement Example: A child with a disruptive behavioural disorder or developmental disorder who reacts with aggression or defiant behaviour when faced with a medical procedure. s 6(6) & 6(7)
Natural immunity s 6(3)(b)
Undergoing an approved catch-up schedule s 3 & 4(1)(b)
Participant in vaccine study s 6(3)(c)
Temporary unavailability of vaccine s 6(4)
Child vaccinated overseas  (Not really an exemption) s 6(5)


 

Medical contraindication to vaccination

Section 6 (3) (a) of the Act provides that a child meets the vaccination requirement if:

[A] general practitioner, a paediatrician, a public health physician, an infectious diseases physician or a clinical immunologist has certified in writing that the immunisation of the child would be medically contraindicated under the specifications set out in the Australian Immunisation Handbook.

On 15 February 2017, the Administrative Appeals Tribunal (AAT) upheld an appeal against a Centrelink decision to cancel the payment of childcare subsidies to a parent who had claimed a medical exemption for their child.  The full, unpublished decision, which has been redacted for privacy reasons, is available here. The decision addressed two important questions:

(1) Is the certifying doctor restricted to the narrow range of contraindications to vaccination outlined in the Australian Immunisation Handbook?

No

(2) Is the certifying doctor required to certify medical contraindication only by way of the Australian Immunisation Register Immunisation Medical Exemption form IM011?

No

Which doctors are permitted to certify a medical contraindication to vaccination?

  • General Practitioner who is a recognised Fellow of the Royal Australian College of General Practitioners (RACGP)
  • General Practitioner who is registered as a general practitioner under the Vocational Register of General Practitioners
  • Medical Practitioner who meets Australian College of Rural and Remote Medicine fellowship standards

The Australian Immunisation Register Act and Family Assistance Act were amended, with effect from 17 August 2017, to provide that the following classes of specialist doctors may also directly certify medical contraindication to vaccination.  Prior to this amendment, specialists who had determined that vaccination was medically contraindicated, were expected to refer the client back to a qualified GP, who would then make the certification.

  • Paediatrician
  • Public Health Physician
  • Infectious Diseases Physician
  • Clinical Immunologist

Reference: s 3 and s 6 (3) (a) of the Act

What is the doctor required to certify?

Based on the wording of the legislation, a relevant doctor must certify in writing that “immunisation of the child would be medically contraindicated under the specifications set out in the Australian Immunisation Handbook”.

In the view of the AAT, if a general practitioner certifies by letter that they have considered information in the Handbook and have found that immunisation is medically contraindicated for a particular child under the specifications in the Handbook, the requirement in paragraph 6 (3)(a) of the Act is met.

Although the question of whether a doctor is required to disclose the specific reasons why vaccination is contraindicated was not considered by the AAT, it is our view, informed by legal advice, that there is nothing in the wording of the legislation which would require a doctor to disclose this information in the certificate.

Reference: s 6 (3) (a) of the Act and para. 30 AAT decision

Is the certifying doctor restricted to the narrow range of contraindications to vaccination outlined in the Australian Immunisation Handbook?

No. The AAT found that a doctor was required to consider, but was not bound by, information in the Handbook, on the basis that the Handbook is only a general guide to appropriate practice, which recognises the importance of a clinician’s judgement in each individual case.  The tribunal also noted that requiring certification by a general practitioner, rather than a recognised immunisation provider, such as a nurse, is an acknowledgement of the medical complexity of the issues under consideration when finding immunisation is medically contraindicated for a particular child. Reference: para. 21 and para. 28 AAT decision

Is the certifying doctor restricted to certifying medical contraindication only by way of the Australian Immunisation Register Immunisation Medical Exemption form IM011?

No. The decision in the Administrative Appeals Tribunal (AAT) in February 2017 confirmed that there can be no requirement to use the standard Immunisation Medical Exemption (IM011) form created by the federal Department of Human Services.

The AAT, in noting the administrative advantages of using the Immunisation medical exemption form, found that making its use the only way in which a medical exemption can be notified constrains a GP’s capacity to fully explain the detail of their reasons for finding such a medical contraindication and goes beyond the requirements of the legislation.

The doctor may choose to certify a medical contraindication by way of: (1) Australian Immunisation Register Immunisation Medical Exemption form IM011or (2) Notice of Certification of Immunisation Medical Contraindication; or (3) another individualised letter or form. The Notice of Certification of Immunisation Medical Contraindication at number (2) above, was kindly prepared by  Bronwyn Hancock from Vaccination Information Service, and satisfies the evidentiary requirement for a medical contraindication exemption under s 6 (3) (a) of the Act, in light of the AAT decision.. Also see page 8 of the AAT decision which contains an example of a type of individualised letter which should also be accepted as fulfilling the evidentiary requirement for a medical contraindication under the Act.

Medical contraindication exemption forms or letters should be submitted directly to the Australian Immunisation Register by your GP or specialist, but can also be submitted to Centrelink.  If you having trouble getting your child’s medical exemption approved, please contact us, and we will endeavour to assist you in navigating the process.  Please write ‘Exemption (federal)’ in the subject line so we can direct your query to the most appropriate volunteer.

Reference: para. 29 AAT decision 


 

Secretary (of the Commonwealth Department of Human Services) determines in writing that the child meets the immunisation requirement

Section 6 (6) of the Act provides that the Secretary may make a determination that a child meets the vaccination requirement in accordance with the decision-making principles (Principles) made under section 6 (7) of the Act. The Principles were amended on 09 August 2017, with effect from 10 August 2017, to include an additional category of exemption from the vaccination requirement (section 13), which may assist parents of children with significant developmental or behavioural disorders who react with aggression when faced with a medical procedure, to obtain an exemption from the vaccination requirement.

Section 13  Unacceptable risk of harm to child or another person The requirements of this section are met if: (a)  a listed medical practitioner has certified in writing, in a form and manner, if any, required by the Secretary, that, for the reasons set out in the certificate, immunisation of the child would result in an unacceptable risk of physical harm to the child or a person administering a vaccination to the child; and (b)  the Commonwealth Chief Medical Officer has certified in writing that he or she agrees with the listed medical practitioner. Example:     A child with a disruptive behavioural disorder or developmental disorder who reacts with aggression or defiant behaviour when faced with a medical procedure.

Which classes of doctors are permitted to certify that vaccination of the child would result in an unacceptable risk of physical harm to the child or a person administering a vaccination to the child under section 13 of the Principles?

The Principles defines a “listed medical practitioner” as:“ a medical practitioner whose name has been given to the Commonwealth Chief Medical Officer by the Chief Health Officer of a State or Territory for the purpose of giving certificates under section 13.”

The Explanatory Statement (ES) for this amendment provides some interpretation guidance.

The Chief Health Officer in each state and territory must nominate in writing to the Commonwealth Chief Medical Officer the ‘listed medical practitioner/s’ for their state. Chief Health Officers can also request the removal of a listed medical practitioner/s if they are no longer required to perform the role. The Department of Health consulted health departments in each State and Territory who agreed to ensure there will only be a small number of highly qualified ‘listed medical practitioners’ able to assess patients and refer their details to the Chief Medical Officer for consideration under this Determination.  Listed medical practitioners are expected to be clinicians with specialist expertise in immunisation, for example those working in specialist immunisation clinics. Jurisdictions have agreed that a very limited and highly qualified group of individuals would be nominated.  The Commonwealth Department of Health will keep a list of listed medical practitioners. This practitioner list is now a defined term in Section 4 of the Amendment Principles.

Reference: s4 Principles and p 3 ES

What is the doctor required to certify under section 13 of the Principles?

Based on the wording of section 13, a relevant doctor must certify in writing, that, for the reasons set out in the certificate, ”immunisation of the child would result in an unacceptable risk of physical harm to the child or a person administering a vaccination to the child”. Reference: s13 Principles

By what means is the certifying doctor required to make a certification under section 13 of the Principles?

Based on the wording of section 13, a relevant doctor must certify “in a form and manner, if any, required by the Secretary, the reasons set out in the certificate”.

A decision by the AAT in early 2017 recognised the importance of a clinician’s judgement and the medical complexity of the issues under consideration when finding immunisation is medically contraindicated for a particular child. Although the AAT decision pertained to medical contraindications under section 6 (3) (a) of the Act, it is likely the reasoning in the decision is also valid with respect to certification of this type of contraindication/exemption.  Consequently, an individualised letter should meet the requirements under the Principles.

Reference: s13 Principles and AAT decision

How do I apply for this type of exemption?

Parents who wish to access this type of exemption should make an appointment with a GP as a starting point.  A referral to a specialist vaccination clinic is likely to be required.

Also see the heading ‘Medical contraindication to vaccination’ (under s6 (3) (a) of the Act) further up this page,  to see if your child is eligible for an exemption under that section.

If you having trouble getting your child’s medical exemption approved, please contact us, and we will endeavour to assist you in navigating the process.  Please write ‘Exemption (federal)’ in the subject line so we can direct your query to the most appropriate volunteer.


 

Natural immunity

Section 6 (3) (b) of the Act provides that a child meets the vaccination requirement if:

[A] general practitioner, a paediatrician, a public health physician, an infectious diseases physician or a clinical immunologist has certified in writing that the child does not require immunisation because the child has contracted a disease or diseases and as a result has developed a natural immunity”.

See Medical contraindication to vaccination for a list of the classes of doctors which may certify that a child has natural immunity to a disease/s. The availability of an exemption for natural immunity is unlikely to assist many though, because a child would need to have so-called natural immunity to all of the diseases listed in the prescribed schedule of vaccines, or to all diseases for which a multivalent vaccine is alleged to provide immunity.  Monovalent vaccines for individual diseases are not available for National Immunisation Program vaccines.  See the section entitled Which vaccines are included in the vaccination requirement?.

In addition, the government has chosen to make individual vaccines impossible to access, so that even natural immunity will not enable an exemption from the vaccination requirement unless the child has natural immunity to all of the diseases that a combined schedule vaccine targets.  For example, the individual Measles, Mumps and Rubella (MMR) vaccines are not available in Australia. The doctor may choose to certify natural immunity either by way of the Australian Immunisation Register Immunisation Medical Exemption form IM011, or by individualised letter. The form or letter should be submitted directly to the Australian Immunisation Register by your GP or specialist.


 

Undergoing an approved catch-up schedule

A guide to catch-up vaccination is provided in section 2.1.5 of the Australian Immunisation Handbook 10th Edition.  An online catch-up calculator for NIP vaccines is hosted by South Australia Health and is available to assist in determining appropriate catch-up schedules for children ≤7 years of age across Australia. However, please note that the safety and effectiveness of the catch-up schedule has not been established. See Medical contraindication to vaccination for a list of the classes of doctors which may certify that a child is undergoing a catch-up schedule. The doctor may choose to certify that a child is on a catch-up schedule either by way of the Australian Immunisation Register Immunisation Immunisation History Form IM013, or by individualised letter. The form or letter should be submitted directly to the Australian Immunisation Register by your GP or specialist.

Disclaimer

All information contained herein was, to the author’s knowledge, correct at the time of writing, but please note, this information is not intended to constitute legal advice about eligibility for government subsidies or benefits.  Parents should verify all information with Centrelink.