Child-care enrolment law in Victoria
This page was last updated on 28 November 2017
What is No Jab No Play?
In October 2015, the Victorian parliament passed the Public Health and Wellbeing Amendment (No Jab, No Play) Act 2015, amending the Victorian Public Health and Wellbeing Act 2008 (the Act). The amendment introduced a vaccination requirement (with some permitted exemptions) for the purpose of enrolment of children in childcare and early education services in Victoria. Importantly, the law does not provide for an exemption to the vaccination requirement on the grounds of conscientious objection to vaccination.
The law took effect on 01 January 2016.
- What is the effect of the law?
- Does the vaccination requirement apply to existing enrolments?
- Which types of childcare and early education 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 child-care benefits and rebates in relation to my unvaccinated children?
- Does the vaccination requirement violate federal Anti-Discrimination law?
- How the law passed
The law, in general, prohibits the enrolment of unvaccinated children in Victorian childcare and early education services 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. The disadvantaged groups include, Health Care Card holders, and children of a multiple birth (triplets or greater). An exhaustive list is provided below.
The law applies to new enrolments commencing on or after 01 January 2016. It does not apply to existing enrolments as at that date. This means that services do not have the power to exclude unvaccinated children whose enrolment had been confirmed prior to 01 January 2016.
Thes law applies to all early childhood education and care services in Victoria providing:
- long day care
- kindergarten (including 3 and 4 year old kindergarten)
- occasional care
- family day care.
The law does not apply to:
- enrolment in 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 occasional care services that offer care of no more than 2 hours per day and no more than 6 hours per week (for example, crèches at gyms and shopping centres)
To be considered up-to-date for the purpose of Victorian childcare enrolment law, a child must be vaccinated in accordance with the per-age schedule determined under section 4 of A New Tax System (Family Assistance) Act 1999 (Cth) which is the same vaccination schedule used to regulate entitlement to Commonwealth childcare subsidies.
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 vaccines recommended for children aged 0 to 4 years under the National Immunisation Program.
The required vaccines, based on a child’s year of birth, is listed in the legislative instrument linked immediately below.
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 are 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, including Aboriginal and Torres Strait Islanders, Health Care Card holders, and children whose birth was a multiple birth *triplets or more).
The Victorian government recently introduced a bill to the parliament, which will amend No Jab No Play. These changes will bring the Victorian law into line with the federal No Jab No Pay law with respect to medical exemptions.
Listed immediately below are links to the current requirements for obtaining medical exemptions under the federal No Jab No Pay law, and which also meet the requirements for Victoria’s current No Jab No Play law.
- What are the permitted exemptions to the vaccination requirement?
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 (Vic) in the subject line so we can direct your query to the most appropriate volunteer.
Other exemptions – socioeconomic disadvantage/vulnerability/Aboriginal &/or Torres Strait Island descent
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 Act.
If a child falls into one of these categories, the parent or guardian will be asked (but not compelled) to produce an immunisation status certificate within 16 weeks of commencing enrolment (the so-called grace period).
Under section 143C (2) of the Act, “within 16 weeks after the date on which the child first attends the early childhood service, the person in charge of the early childhood service must take reasonable steps to ensure that an immunisation status certificate in relation to the child is provided by a parent of the child”. 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 16 week grace period expires.
Note: Although these categories of children are exempt from the vaccination requirement for the purpose of enrolment in Victorian childcare and early education services, they will not necessarily be exempt from the vaccination requirement under the federal No Jab No Pay law. Consequently, 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 Victorian 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.
|Reason for Exemption||Reference|
|Children evacuated following an emergency (such as flood or fire)||s143C (1) (a)|
|Children in the care of an adult who is not their parent|
|Children in the care of an adult who is not the child’s parent due to exceptional circumstances such as illness or incapacity||s143C (1) (c)|
|Children in emergency care|
|Children in emergency care (for example, emergency foster care) under the Children, Youth and Families Act 2005||s143C (1) (b)|
|Aboriginal and/or Torres Strait Islander Children|
|Children identified by their parents as Aboriginal and/or Torres Strait Islander||s143C (1) (d)|
|Children experiencing vulnerability or socioeconomic disadvantage|
|Children who hold or whose parents hold a health care card, or whose parents hold a pension concession card, Veterans Affairs Gold or White card||s143C (1) (e)|
|Children from a multiple birth of triplets or more||s143C (1) (f)|
|Children who are refugees or asylum seekers||s143C (1) (g)|
|Children displaced by family violence or homelessness||s143C (1) (g)|
|Children known to child protection|
|Children who are on or have been on a protection order||s143C (1) (g)|
|Children in or who have been in foster care or out-of-home care||s143C (1) (g)|
|Children or families that have received support from child protection||s143C (1) (g)|
|Children who have had a report made about them under the Children Youth and Families Act 2005||s143C (1) (g)|
|Families that have received support through Family Services including Child FIRST; services connect; a community-based child and family service; or an integrated family service.||s143C (1) (g)|
Will I still be eligible for child-care benefits and rebates in relation to my unvaccinated children?
The Victorian 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 Victorian 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.
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 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 Victorian government with respect to enrolments, and the Commonwealth government with respect to subsidies.