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No Jab No Play (NSW)

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Conditions on enrolment in early childhood education/childcare services in New South Wales

This page was last updated on 25 February 2018

What is No Jab No Play?

In September 2017, the New South Wales parliament amended the Public Health Act 2010 (NSW) (the Act), abolishing the right to conscientiously object to vaccination for the purpose of enrolment in early childhood education and care services in that state.

The law took effect on 01 January 2018.


 

What is the effect of the law?

The law, in general, prohibits the enrolment of unvaccinated children in early childhood education and care services in New South Wales unless they have a medical exemption (which includes a contraindication or evidence of natural immunity), or are undergoing a catch-up schedule.

Exemptions from the vaccination requirement are also available to certain vulnerable and disadvantaged groups, and children of Aboriginal and Torres Strait Island descent.  An exhaustive list of these is provided in the section below called Other exemptions (12 week grace period) – certain disadvantaged & vulnerable groups & children of Aboriginal &/or Torres Strait Island descent.

The law also places obligations on childcare services to periodically request (but not require) updated vaccination history statements or medical certificates with respect to children already enrolled.  See section below called What are periodic requests for updated vaccination status statements?


 

Does the vaccination requirement apply to both new and existing enrolments?

The vaccination requirement, in general, applies only to new enrolments confirmed on or after 01 January 2018.

The law also places obligations on childcare services to periodically request updated vaccination history statements or medical certificates with respect to children already enrolled. See section below called What are periodic requests for updated vaccination status statements?


 

Which documentation is acceptable for enrolment?

The New South Wales Ministry of Health advises that from 1 January 2018, parents must provide a copy of one or more of only three documents in order to enrol in an early childhood education or childcare service in NSW:

However, based on provisions in the law with respect to medical exemptions, other forms and letters are also acceptable, and in certain circumstances necessary.

See detailed information about medical exemptions and the documentation permitted/required under the NSW law at the following links.


 

What are periodic requests for updated vaccination status statements?

Under section 87 subsection (4) of the Act and section 43 subsection (2) of the Public Health Regulations, the principal of a child care facility must periodically request that a parent of a child already enrolled, provide an updated vaccination history statement or medical certificate, whenever the child concerned reaches an age designated by the Secretary for a specified vaccine preventable disease, at which age, it is appropriate for a child to be immunised or further immunised against that disease.for that child.

However, the above-mentioned provisions merely places an obligation on the childcare service to request (not require) an updated vaccination history statement or medical certificate.  There is no corresponding obligation on a parent to provide an updated vaccination history statement or medical certificate, or any sanctions for failing to do so.

Consequently, if a parent fails to provide an updated vaccination history statement or medical certificate for their child, the childcare service is not authorised to exclude that child under the legislation.

Unvaccinated children (including those with medical exemptions) may be temporarily excluded in the event of an outbreak of so-called vaccine-preventable disease.


 

Which types of early childhood education and care services does the law apply to?

Thes law applies to early childhood education and care services in New South Wales providing:

  • Long day care
  • Pre-school (including Distance Education)
  • Family Day Care
  • Occasional care

The law does not apply to:

  • enrolment in Kindergarten, Primary or Secondary school*
  • children attending an outside school hours care service (after school care, before school care, vacation care)
  • enrolments of school children in long day care, family day care or occasional care
  • casual, ad-hoc care services (for example, crèches at gyms and shopping centres)
  • playgroups

* When enrolling a child in Kindergarten, Primary or Secondary School, parents may be requested or required to provide a vaccination status / history statement showing which, if any, vaccines their child has received.  Importantly, such a request / requirement is not a requirement for your child to be vaccinated.  This is a documentation request / requirement, not a vaccination requirement.

For further information about your obligations with respect to vaccination status documentation when enrolling your child in Kindergarten, Primary or Secondary School, see No Jab No School – Not True.


 

Which vaccines are included in the vaccination requirement?

To be considered up-to-date for the purpose of enrolment under the New South Wales law, a child must be vaccinated in accordance with the New South Wales Immunisation Schedule for ages 0 to 4 years, unless the child is exempt from the vaccination requirement.


 

What are the permitted exemptions to the vaccination requirement?

The law, in general, provides limited exemptions to the vaccination requirement.  Importantly, it does not provide for the right to conscientiously object to vaccination.

A medical exemption (which includes a contraindication or evidence of natural immunity), or a child is undergoing a catch-up schedule, are the only exemptions available for everyone.

Exemptions from the vaccination requirement are also available to certain vulnerable and disadvantaged groups, and children of Aboriginal and Torres Strait Island descent.  An exhaustive list of these is provided in the section below called Other exemptions (12 week grace period) – certain disadvantaged & vulnerable groups & children of Aboriginal &/or Torres Strait Island descent.


 

Medical Exemptions (contraindication and natural immunity)

A child is exempt from the vaccination requirement when an authorised practitioner (which includes both doctors and accredited vaccination nurses) has certified that a child should have an exemption for one or more vaccines due to a medical contraindication to vaccination.

Although not specified in the Act, natural immunity would also constitute a medical contraindication to vaccination.  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.

A detailed guide about obtaining a medical exemption for your child is provided in the following sections.


 

Who is permitted to certify a medical contraindication to vaccination?

(1) All Medical practitioners.*

Reference: Section 85 (1) of the Act.

(2)  Registered nurses, and midwives, who are employed in connection with a vaccination program in a health service or place of work and who have successfully completed prescribed accreditation courses.*

Reference: Section 85 (1)  of the Act and Section 42A of the Public Health Regulations.

* Please note that the classes of practitioners permitted to certify medical contraindication to vaccination for the purpose of eligibility to childcare subsidies and family payments under the federal No Jab No Pay law, are more limited than under the NSW law.  If you wish to qualify for childcare subsidies (in addition to your child qualifying for enrolment), a medical exemption will need to be certified by a medical practitioner who is a member of a class specified in the federal legislation.  These are listed below.

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

For further information about exemptions under the federal law see What are the permitted exemptions to the vaccination requirement under No Jab No Pay?


 

What is the authorised practitioner required to certify?

An authorised practitioner must certify “that a specified child should have an exemption for one or more vaccines for specified vaccine preventable diseases due to a medical contraindication to vaccination”.

The law does not impose an obligation on an authorised practitioner to disclose in the certificate, the reasons for the medical contraindication.

Reference: Section 87 (9) of the Act.


 

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

No.

The Act provides that a child is exempt from the vaccination requirement “due to a medical contraindication to vaccination”.  ‘Medical contraindication’ is not defined in the Act, so the broad meaning of that term applies.

Importantly, there is no reference in the legislation to the specifications of the Australian Immunisation Handbook in the legislation.  The scope of medical contraindications to vaccination is rightly left to the clinical judgement of the authorised practitioner, in consultation with parents.

Reference: Section 87 (9) of the Act.


 

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

No.

(1) If the authorised practitioner is in one of the classes of medical practitioners authorised by the federal No Jab No Pay legislation to certify medical contraindication to vaccination under that law, those being:

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

s/he may choose to certify a medical contraindication by way of:

(a) Australian Immunisation Register Immunisation Medical Exemption form IM011; or

(b) Notice of Certification of Immunisation Medical Contraindication; or

(c) Individualised letter.

Please note that the certificates at (1) (a), (b), and (c) above, will both qualify your child for enrolment in early childhood education and care services in NSW, and qualify you for childcare subsidies under the federal No Jab No Pay law.  The ‘Notice of Certification of Immunisation Medical Contraindication’ at (1) (b) above was kindly prepared by Bronwyn Hancock from Vaccination Information Service and meets the requirements of both the NSW and federal legislation.

(2) For all other classes of authorised practitioner provided under the NSW law, those being:

  • GPs and medical practitioners other than those listed at number (1) immediately above
  • accredited vaccination nurses

s/he should certify a medical contraindication by way of:

(a) Notice of Certification of Immunisation Medical Contraindication for the purpose of section 87 (1) of the Public Health Act 2010 (NSW); or

(b) an individualised letter.

These classes of authorised practitioners must not, and are not authorised to, use the federal Australian Immunisation Register Immunisation Medical Exemption form IM011.

Please note that the certificates at (2) (a) and (b) above, will qualify your child for enrolment in early childhood education and care services in NSW, but will not qualify you for childcare subsidies under the federal No Jab No Pay law, because such certificates are specific to the provisions of the NSW law.


 

Where should I submit the Medical Exemption certificates?

(1) If the medical contraindication to vaccination was certified by a member of a class of medical practitioners authorised by the federal No Jab No Pay legislation, those being:

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

then the Australian Immunisation Register Immunisation Medical Exemption form IM011, or Notice of Certification of Immunisation Medical Contraindication, or individualised letter, should be submitted to both the Australian Immunisation Register (for the purpose of eligibility to childcare subsidies under the federal No Jab No Pay law), and to the principal of a NSW childcare service (for the purpose of enrolment).

(2) If the medical contraindication to vaccination was certified by one of the other classes of authorised practitioner provided under the NSW law, those being:

  • GPs and medical practitioners other than those listed in section (1) immediately above
  • accredited vaccination nurses

the Notice of Certification of Immunisation Medical Contraindication for the purpose of section 87 (1) of the Public Health Act 2010 (NSW) or individualised letter, should only be submitted to the principal of a NSW childcare service (for the purpose of enrolment), and not to the Australian Immunisation Register, because such certificates are specific to the provisions of the NSW law.


 

Having trouble getting your child’s Medical Exemption accepted for enrolment?

If you having trouble obtaining a medical exemption, or getting your child’s exemption accepted by the childcare service, please contact us, and we will endeavour to assist you in navigating the process.  Please write Exemption (NSW) in the subject line so we can direct your query to the most appropriate volunteer.


 

Undergoing a 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.

An authorised practitioner may certify that a child is on a catch-up schedule by way of the Australian Immunisation Register immunisation history form (IM013).

For details about the classes of practitioners who may certify that a child is undergoing a catch-up vaccination schedule for the purpose of both the NSW law, and the federal No Jab No Pay law, please see section above called Who is permitted to certify a medical contraindication to vaccination?

The Australian Immunisation Register immunisation history form (IM013)  should be submitted to both the Australian Immunisation Register (for the purpose of eligibility to childcare subsidies under the federal No Jab No Pay law), and to the principal of the childcare service (for the purpose of enrolment).

Reference: Section 87 subsections (1) and  (9) of the Act.


 

Other exemptions (12 week grace period) – certain disadvantaged & vulnerable groups & children of Aboriginal &/or Torres Strait Island descent

Under section 87 (3) of the Act, an exemption from the vaccination requirement is available for certain categories of disadvantaged or vulnerable children, and Aboriginal and/or Torres Strait Islander children.  These are listed in the table below referenced to the relevant section of the Public Health Regulation 2012 (NSW) (the Regulations).

If a child falls into one of the first three categories, the parent or guardian will be asked (but not compelled) to produce an immunisation history statement within 12 weeks of commencing enrolment.  See section called What is the 12 week grace period?

Reason for Exemption Reference
Children subject to a guardian order or in out-of-home care 44A (1) (b)
Children, who through exceptional circumstances, are determined to be in need of protection and/or placed in emergency care (e.g. children placed in emergency foster care; parent/guardian of a child needing urgent health care and the child is placed in emergency care) 44A (1) (c)
Children evacuated following a declared natural
disaster
44A (1) (d)
Aboriginal or Torres Strait Islander children 44A (1) (e)

 

Reference: Public Health Regulation 2012 (NSW) (s44A)


 

What is the 12 week grace period?

If a child falls into one of the first three categories of disadvantaged/vulnerable children listed in the previous section, the parent or guardian will be asked (but not compelled) to produce an immunisation history statement within 12 weeks of commencing enrolment.

Under section 44A subsection (2) of the Regulations, “the principal of a child care facility must take all reasonable steps to ensure that the parent of the child, or the principal of another child care facility, provides the certificate or certificates referred to in section 87 (1) of the Act, in respect of the child, within 12 weeks after the date on which the child is enrolled in the facility“.

However, if the parent fails to provide the certificate, there is no provision in the legislation which would permit the childcare service to exclude the child once the 12 week grace period expires.

Note: Although these categories of children are exempt from the vaccination requirement for the purpose of enrolment in New South Wales early childhood education and care services, they will not necessarily be exempt from the vaccination requirement under the federal No Jab No Pay law.  Unless the child also qualifies for an exemption the federal law, then the parent/guardian will not qualify for Childcare Benefits and Rebates, even when the child qualifies for enrolment under the New South Wales No Jab No Play law.  To determine if you qualify for an exemption, for the purpose of eligibility to Childcare Benefits and Rebates, see guide to permitted exemptions under No Jab No Pay.


 

Will I still be eligible for child-care benefits and rebates in relation to my unvaccinated children?

The New South Wales law has no effect on benefits or rebates.  The effect of the federal No Jab, No Pay law, however, is to deny Commonwealth child-care benefits and rebates for the care of unvaccinated children who do not have a permitted exemption to the vaccination requirement under that law.  In other words, just because your child may qualify for enrolment under the New South Wales law, does not necessarily mean you will qualify for subsidies under the federal law.

To determine if you qualify for an exemption, for the purpose of eligibility to Childcare Benefits and Rebates, see guide to permitted exemptions under No Jab No Pay.


 

Does the vaccination requirement violate federal Anti-Discrimination law?

Although the law generally prohibits the enrolment of unvaccinated children, what remains to be tested is whether such refusals are unlawful under the Commonwealth Disability Discrimination Act 1992, which prohibits discrimination against a person on the basis that they are perceived to be potential disease carriers.

If wish to test the lawfulness of the vaccination requirement under the Disability Discrimination Act (Cth) 1992, a member has prepared a guide, based on legal advice provided to that member, about How to make a complaint against a childcare service under the Disability Discrimination Act 1992 (Cth)

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 enrolment in childcare services under Victorian law, or eligibility for government subsidies or benefits under federal law.  Parents should verify all information with their childcare or early education provider or the New South Wales government with respect to enrolments, and the Commonwealth government with respect to childcare subsidies.

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