No Jab No Play (Vic)

Child-care enrolment laws in Victoria

Effective from 1 January 2016

The Victorian Parliament recently passed amendments to the Public Health and Wellbeing Act 2008, affecting enrolment in child-care.

[1] Which children does this law apply to?

The new law applies only to new enrolments, commencing on or after 01 January 2016.  It does not apply to existing enrolments as at that date.

[2] Which services does this law apply to?

These 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)

• playgroups.

[3] What is the effect of the law?

The new law, in general, prohibits the enrolment of unvaccinated children in Victorian childcare centres unless they have a medical exemption (which includes a contraindication or evidence of natural immunity), or are undergoing a catch-up schedule.

The Medical Exemption form is available at this link.

Exemptions to the vaccination requirement are also available to certain vulnerable and disadvantaged groups.  These are outlined in detail in section 7 below.

[4] Which vaccines must a child have to be considered fully vaccinated?

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.  These vaccination schedules are available at the following link.

[5] What if the enrolment of my child has already been confirmed, but with a commencement date on or after January 1, 2016?

The law does not apply to enrolments that have been confirmed in writing by 31 December 2015, even if the child will not start attending until the new year.

[6] Will child-care operators still be permitted to enrol unvaccinated children from 1 January 2016?

Child-care services will not be permitted to enrol unvaccinated children unless an exemption applies (see below).  Once a child, exempt by reason of disadvantage or vulnerability (see section 7 below) is enrolled, within 16 weeks after the date on which the child first attends, the person in charge of the 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.  It appears that if the parent fails to provide this, no further steps can lawfully be taken to exclude the child.

Although the new law generally prohibits the enrolment of unvaccinated children, what remains to be tested is whether such refusals will be permitted by the Commonwealth Disability Discrimination Act 1992, which prohibits discriminating against others on the basis that they are perceived to be potential disease carriers.

If you experience such discrimination, and wish to test its lawfulness under the Disability Discrimination Act 1992, please feel free to contact us for further information.

[7] Are there any exemptions?

In addition to medical exemptions, an exemption from the vaccination requirement is available in relation to certain categories of disadvantaged and vulnerable children:

(a) that the child and the child’s parent are evacuated from their place of residence due to an emergency within the meaning of section 3(1) of the Emergency Management Act 2013; or

(b) that the child is in emergency care within the meaning of section 3(1) of the Children, Youth and Families Act 2005; or

(c) that the child is in the care of an adult who is not the child’s parent due to exceptional circumstances such as illness or incapacity; or

(d) that a parent of the child states that the child (i) is descended from an Aborigine or Torres Strait Islander; and (ii) identifies as an Aborigine or Torres Strait Islander; and (iii) is accepted as an Aborigine or Torres Strait Islander by an Aboriginal or Torres Strait Island community; or

(e) that the child is in the care of a parent who is the holder of either (i) a Health Care Card issued under section 1061ZS of the Social Security Act 1991 of the Commonwealth; or (ii) a pensioner concession card issued under section 1061ZF of the Social Security Act 1991 of the Commonwealth; or (iii) a Gold Card, being a card issued to a person who is eligible for treatment under Part V of the Veterans’ Entitlement Act 1986 of the Commonwealth; or (iv) a White Card, being a card issued to a person who is eligible for limited treatment under Part V of the Veterans’ Entitlement Act 1986 of the Commonwealth; or

(f) that the child’s birth was a multiple birth (being the birth of triplets or more); or

(g) that a circumstance specified in the guidelines made under section 143D applies to the child.  These circumstances were published in the Victorian Government Gazette  on 31 December 2015 (page 2824).

Under the new law, if a child falls into one of these categories, the parent or carer is asked (but not compelled) to produce an immunisation status certificate.

[8] 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 medical exemption or documented natural immunity and are not on a catch-up vaccination schedule.  (See “No Choice, No Way” – “No Jab No Pay” for details.)  This applies even to the disadvantaged children exempt from the vaccination requirement for enrolment purposes under the new Victorian law.

For more information, download this Victorian government information sheet.

Disclaimer: All information contained herein was, to the author’s knowledge, correct at the time of writing, but is not intended to constitute legal advice.  Parents and child-care operators should verify all details with the Victorian Government.