Conditions on enrolment in early childhood education/childcare services in Victoria

This page was last updated on 27 February 2018

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 early childhood education and childcare 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?

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.

From 28 February 2018, the only document that can be accepted for the purpose of enrolment in a Victorian early childhood education or childcare service is a vaccination history statement from the federal Australian Immunisation Register (AIR) showing that a child is age-appropriately vaccinated (which includes when a child has a medical exemption), unless a child is exempt from the vaccination requirement (for example the children of those holding a Health Care Card or children of Aboriginal & Torres Strait Islander descent). See section called Which documentation is acceptable for enrolment?

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 of these is provided below in the section called Other exemptions (16 week grace period) – socioeconomic disadvantage / vulnerability / Aboriginal &/or Torres Strait Island descent.

With respect to children already enrolled, the new section 143E, recently inserted into the Act by the Health and Child Wellbeing Legislation Amendment Act 2018 (but not yet in operation), also places obligations on parents to periodically produce, and on childcare services to take reasonable steps to periodically request, an immunisation status certificate showing a child is age-appropriately vaccinated, as prescribed by the regulations. See section below called What are periodic checks for immunisation status certificates?



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

The law, in general, applies to new enrolments commencing on or after 01 January 2016.

However, with respect to children already enrolled, the new section 143E, recently inserted into the Act by the Health and Child Wellbeing Legislation Amendment Act 2018 (but not yet in operation), also places obligations on parents to periodically produce, and on childcare services to take reasonable steps to periodically request, an immunisation status certificate showing a child is age-appropriately vaccinated, as prescribed by the regulations. See section below called What are periodic checks for immunisation status certificates?



Which documentation is acceptable for enrolment?

From 28 February 2018, the only document that can be accepted for the purpose of enrolment in a Victorian early childhood education or childcare service is a vaccination history statement from the federal Australian Immunisation Register (AIR) showing that a child is age-appropriately vaccinated (which includes when a child has a medical exemption), unless a child is exempt from the vaccination requirement (for example the children of those holding a Health Care Card or children of Aboriginal & Torres Strait Islander descent).

What this means is that medical exemption certificates must be submitted directly to the AIR. Early childhood education and childcare services are unable to accept medical exemption certificates as evidence that a child is age-appropriately vaccinated.

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 (age-appropriately vaccinated), which can then be downloaded and submitted to the childcare service.

The AIR Vaccination History Statement can be downloaded from the Medicare website via your MyGov account.

For information about the specific requirements for obtaining medical exemptions under the federal No Jab No Pay law, and which also meet the requirements for Victoria’s No Jab No Play law, see section below called Medical Exemptions.



What are periodic checks for immunisation status certificates?

Under the new section 143E subsection (1) of the Act, recently inserted into the Act by the Health and Child Wellbeing Legislation Amendment Act 2018 (but not yet in operation), the parent of a child who attends an early childhood service must provide to the person in charge of the early childhood service an immunisation status certificate indicating that the child is age appropriately immunised:

(a) within 2 months after the child attains an age (prescribed in the regulations); or

(b) at intervals not exceeding the period (prescribed in the regulations).

Under section 143E subsection (2), there is a corresponding obligation on the childcare service to take reasonable steps to ensure that a parent of a child who attends the early childhood service provides an immunisation status certificate in accordance with subsection (1).

The Families and Children Minister, Jenny Mikakos stated in parliament on 08 February 2018, that the frequency of the periodic checks and at what point the periodic checks will happen is something that needs to be worked through with the early childhood sector before the regulations commence.

Section 143E will come into operation on a date to be proclaimed, or on 01 November 2018, whichever comes sooner. Section 2 of the amendment Bill (page 2) sets out commencement dates for various sections. Section 143E is found in clause 21.

Until the regulations – which will give effect to these periodic checks – are released, it remains uncertain how the periodic checks will affect the existing enrolments of unvaccinated children. Will unvaccinated children already enrolled really be excluded? We certainly hope not, but we really don’t know at this stage.

This page will be updated once the regulations come into effect.

In anticipation of the periodic checks coming into operation in the coming months, we are now recommending that parents who are enrolling their children under the 16 week grace period, should provide the childcare service with an immunisation status certificate (AIR Vaccination History statement), showing which, if any, vaccines their child has received, before the 16 week grace period expires. For further information about the 16 week grace period, and why parents should now provide their child’s immunisation status certificate during the grace period, please see section called What is the 16 week grace period?



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

Thes law applies to 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 Prep, 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.

* When enrolling a child in Prep, 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 Prep, 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 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.

Family Assistance (Immunisation and Vaccination) (Education) Determination 2018

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. The disadvantaged groups include, Health Care Card holders, and children of a multiple birth (triplets or greater). An exhaustive list of these is provided below in the section called Other exemptions (16 week grace period) – socioeconomic disadvantage / vulnerability / Aboriginal &/or Torres Strait Island descent.



Medical Exemptions

From 28 February 2018, the Victorian 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, and which also meet the requirements for Victoria’s No Jab No Play law, follow the links listed below.

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 (16 week grace period) – 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).

It remains the case that there is no requirement under the Victorian law for parents enrolling their children under the 16 week grace period, to provide an immunisation status certificate within the grace period, however, due to the recent enactment of the periodic immunisation status check provisions, we are now recommending that parents who are enrolling their children under the grace period, should provide the childcare service with an immunisation status certificate (AIR Vaccination History statement), showing which, if any, vaccines their child has received, before the 16 week grace period expires.

For further information about the 16 week grace period, and why parents should now provide their child’s immunisation status certificate during the grace period, see section called What is the 16 week grace period?

Reason for Exemption Reference Children evacuated following an emergency (such as flood or fire) s143C (1) (a) Children in emergency care (for example, emergency foster care) under the Children, Youth and Families Act 2005 s143C (1) (b) 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 identified by their parents as Aboriginal and/or Torres Strait Islander s143C (1) (d) 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 Children displaced by family violence or homelessness Children who are on or have been on a protection order Children in or who have been in foster care or out-of-home care Children or families that have received support from child protection Children who have had a report made about them under the Children Youth and Families Act 2005 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)

Sources:

Immunisation enrolment toolkit for early childhood education and care services (Section 1)

Public Health and Wellbeing Act 2008



What is the 16 week grace period?

If a child falls into one of the disadvantaged categories listed in the table above, 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.

It remains the case that there is no requirement under the Victorian law for parents enrolling their children under the 16 week grace period, to provide an immunisation status certificate within the grace period, however, due to the recent enactment of the periodic immunisation status check provisions, we are now recommending that parents who are enrolling their children under the grace period, should provide the childcare service with an immunisation status certificate (AIR Vaccination History statement), showing which, if any, vaccines their child has received, before the 16 week grace period expires.

Under the new section 143E subsection (3) of the Act, recently inserted into the Act by the Health and Child Wellbeing Legislation Amendment Act 2018, a parent of a child attending an early childhood service is not required to provide to the person in charge of the early childhood service an immunisation status certificate indicating that the child is age appropriately immunised if:

(1) the child is in a category vulnerable or disadvantaged children specified in section 143C(1) of the Act (see list of disadvantaged categories in previous section); and

(2) an immunisation status certificate is to be provided during the 16 week grace period.

An immunisation status certificate (AIR Vaccination History statement) provided during the grace period does not need to show that the child is age-appropriately immunised. Such a certificate only needs to show which, if any, vaccines the child has received.

The AIR Vaccination History Statement can be downloaded from the Medicare website via your MyGov account.

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. 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



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.



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 Victorian government with respect to enrolments, and the Commonwealth government with respect to subsidies.