Conditions on enrolment in childcare/early childhood education services in South Australia
What is No Jab No Play?
In April 2020, the South Australian parliament passed the South Australian Public Health (Early Childhood Services and Immunisation) Amendment Bill 2020, amending the South Australian Public Health Act 2011 (the Act).
The amendment introduced a vaccination requirement for the purpose of enrolment and attendance of children in early childhood education and childcare services in South Australia.
Importantly, the law does not provide for an exemption to the vaccination requirement on the grounds of conscientious objection to vaccination.
From 7 August 2020, children in South Australia will not be able to enrol in or attend early childhood services unless all immunisation requirements are met.
- What is the effect of the law?
- Does the vaccination requirement apply to both new and existing enrolments?
- Which documentation is acceptable for enrolment?
- Which types of early childhood education and care services does the law apply to?
- Which vaccines are included in the vaccination requirement?
- What are the permitted exemptions to the vaccination requirement?
- Will I still be eligible for Childcare Subsidy in relation to my unvaccinated children?
- Does the vaccination requirement violate federal Anti-Discrimination law?
- How the law passed
What is the effect of the law?
The law, in general, prohibits the enrolment and attendance of unvaccinated children in most childcare and early childhood education services in South Australia, unless the child has a medical exemption (which includes a contraindication or evidence of natural immunity), or is undergoing a catch-up schedule.
Does the vaccination requirement apply to both new and existing enrolments?
The vaccination requirement applies to both existing and new enrolments. This means that unvaccinated children who are currently attending childcare or kindergarten will not be permitted to attend after the law takes effect.
Which documentation is acceptable for enrolment?
For most children, an approved immunisation record will be an ‘immunisation history statement’, which is downloaded from the Australian Immunisation Register (AIR).
The immunisation history statement is an official record of immunisations given to a child, and it will also indicate if a child has any approved exemption.
The immunisation history statement will show:
- the child’s name
- date of birth
- the date the statement was downloaded, and
- immunisation status, this may indicate
- up to date
- not up to date; or
- on a catch-up schedule.
If your child has a medical contraindication to vaccination, the medical exemption certificate must be submitted directly to the Australian Immunisation Register (AIR) by your doctor. Early childhood education and childcare services are unable to accept medical exemption certificates as evidence that a child’s vaccination status is up-to-date.
Once the AIR receives a medical exemption certificate, it will update the child’s AIR history statement to show that the child is now up-to-date, which can then be downloaded and submitted to the childcare service.
For information about the specific requirements for obtaining medical exemptions under the federal No Jab No Pay law, which also meet the requirements of South Australia’s No Jab No Play law, see section below called Medical Exemptions.
Which types of early childhood education and care services does the law apply to?
The law applies to early childhood education and care services in South Australia providing:
- Occasional Care
- Family Day Care
The law does not apply to:
- reception, primary or secondary school*
- children attending an outside school hours care service (after school care, before school care, vacation care)
- mobile services
- casual, ad-hoc care services (for example, crèches at gyms and shopping centres)
* When enrolling a child in reception, 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 reception, 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 South Australian law, a child must be vaccinated in accordance with the federal No Jab No Pay law, unless the child is exempt from 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. For example, the birth dose of Hepatitis B and the Rotavirus vaccines are not included in the vaccination requirement.
The required vaccines, based on a child’s year of birth, are listed in the legislative instrument linked below.
What are the permitted exemptions to the vaccination requirement?
- the child has a medical contraindication to a vaccine, such as anaphylaxis
- the child has natural immunity to a particular disease
- the child is part of an approved vaccine study
- the vaccine is temporarily unavailable
- the child is vaccinated overseas
- the Secretary (see below) has determined that the child meets the immunisation requirements
- the child is undergoing a catch-up schedule
The law, in general, provides limited exemptions to the vaccination requirement. Importantly, it does not provide for the right to conscientiously object to vaccination.
Exemptions from the vaccination requirement are also available to certain vulnerable and disadvantaged groups, for example children of Health Care Card holders, and children of Aboriginal and Torres Strait Island descent. An exhaustive list of these groups is provided below in the section called Other exemptions.
The South Australian No Jab No Play law is in line with the federal No Jab No Pay law with respect to the certification of medical exemptions. For details about the current requirements for obtaining medical exemptions under the federal No Jab No Pay law, follow the links listed below:
- What are the permitted exemptions to the vaccination requirement?
- Medical contraindication to vaccination
- 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)
- Natural immunity
If you having trouble getting your child’s exemption approved, please contact us, and we will endeavour to assist you in navigating the process. Please write Exemption (SA) in the subject line so we can direct your query to the most appropriate volunteer.
An exemption from the vaccination requirement is available for certain categories of socioeconomically 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 Regulations 2017, made under section 141A of the Act.
A two-page Department of Health document called ‘Enrolling an exempt child (family circumstances)’ is a resource for persons in charge of child care services, pre-kindergarten and kindergarten programs to assist in determining a child’s eligibility for enrolment as an exempt child due to a particular family circumstance, and includes an ‘Exemption Eligibility Form’.
|Reason for Exemption||Reference|
|Child is Aboriginal or Torres Strait Islander.||10AB (3)|
|A child who is in the care of a responsible person who holds any of the following —(a) an automatic issue Health Care Card issued under the Social Security Act 1991 (Commonwealth)
section 1061ZS;(b) a Pensioner Concession Card issued under the Social Security Act 1991 (Commonwealth) section 1061ZF;(c) a Gold Card issued by the Veterans’ Affairs Department in relation to the person’s entitlement for treatment under the Veterans’ Entitlements Act 1986 (Commonwealth);(d) a White Card issued by the Veterans’ Affairs Department in relation to the person’s entitlement for treatment under the Veterans’ Entitlements Act 1986 (Commonwealth).
|A child who is living in crisis or
emergency accommodation because
(a) family violence or a risk of
family violence; or
|A child who has been evacuated from their ordinary place of residence because it is in an area of the State to which a declaration made under the Emergency Management Act 2005 section 56 applies.||10AB (3)|
|A child who is in the care of an adult, other than their parent or guardian, because of exceptional
circumstances (for example, illness or incapacity of their parent or guardian).
|A child who is in need of protection as defined in the Children and Community Services Act 2004
|A child who first entered Australia not more than 6 months before the time of enrolment and who holds, or whose parent holds, a visa (as defined in the Migration Act 1958 (Commonwealth) section 5(1)) of one of the following subclasses —
(a) 200 (Refugee);
(b) 201 (In-country Special
(c) 202 (Global Special
(d) 203 (Emergency Rescue);
(e) 204 (Woman at Risk);
(f) 785 (Temporary Protection);
(g) 790 (Safe Haven Enterprise);
(h) 866 (Protection).
Note: Although these categories of children are exempt from the vaccination requirement for the purpose of enrolment in South Australian childcare and early education 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 Subsidy, even when the child qualifies for enrolment under the South Australian No Jab No Play law. To determine if you qualify for an exemption, for the purpose of eligibility to Childcare Subsidy, see guide to permitted exemptions under No Jab No Pay
Will I still be eligible for Childcare Subsidy in relation to my unvaccinated children?
The South Australian law has no effect on Childcare Subsidy. The effect of the federal No Jab, No Pay law, however, is to deny Commonwealth Childcare Subsidy 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 South Australian 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 Subsidy, 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)
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 South Australian 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 South Australian government with respect to enrolments, and the Commonwealth government with respect to subsidies.
This page was last updated on 21 November 2020