Bills Digest no. 36 2015–16
PDF version [696KB]
WARNING: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Michael Klapdor
Social Policy Section
22 October 2015
Contents
List
of abbreviations
Purpose of the Bill
Background
Committee consideration
Policy position of non-government parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human Rights
Key issues and provisions
Concluding comments
Date introduced: 16
September 2015
House: House of
Representatives
Portfolio: Social
Services
Commencement: Schedule 1 on 1 January 2016 and remaining sections on
Royal Assent.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent, they
become Acts, which can be found at the ComLaw
website.
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Abbreviation
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Definition
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ACIR
|
Australian Childhood Immunisation Register
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CCB
|
Child Care Benefit
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CCR
|
Child Care Rebate
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DHS
|
Department of Human Services
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DSS
|
Department of Social Services
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FA Act
|
A New Tax System (Family Assistance) Act 1999
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FTB-A
|
Family Tax Benefit Part A
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MIA
|
Maternity Immunisation Allowance
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SCCB
|
Special Child Care Benefit
|
The Social Services Legislation Amendment (No Jab, No Pay)
Bill 2015 (the Bill) amends the A New Tax System (Family Assistance) Act
1999 (the FA Act)[1]
to tighten the immunisation requirements for the Family Tax Benefit Part A
(FTB-A) supplement, Child Care Benefit (CCB) and Child Care Rebate (CCR). The
Bill will remove the exemption from the immunisation requirements for those who
submit a conscientious objection to immunisation and will remove the Minister
for Social Services’ power to exempt a class of persons from the requirements
by legislative instrument.
From 1 January 2016, exemptions from the requirements will
only apply where a general practitioner (GP) has certified that vaccination would
be medically contraindicated or a child has a natural immunity; where the child
is a participant in a registered vaccine study; where a vaccine is temporarily
unavailable; where the child has been vaccinated overseas; or where the Department
of Social Services (DSS) or the Department of Education and Training has
determined that the child meets immunisation requirements (in line with
decision-making principles to be set out in a legislative instrument).[2]
The Bill will also amend immunisation requirements specific to the FTB-A
supplement so that children must meet the relevant immunisation requirements
each financial year, not just in the year the child turns one, two or five.
In April 2015, the Government announced that it would
close off some exemptions from the immunisation requirements for eligibility
for the FTB-A supplement, CCB and CCR, stating that it was ‘extremely
concerned’ at the risk non-vaccinated children pose to public health.[3]
On 12 April 2015, the Government first announced that it would remove the
conscientious objector exemption but retain the exemptions for medical reasons
and religious grounds.[4]
On 19 April, then Minister for Social Services, Scott Morrison, announced that,
after discussions with the Church of Christ, Scientist, their specific
exemption would be removed as the Church advised it was no longer necessary. This
was the only religious organisation with an approved vaccination exemption, and
the Minister announced that no further vaccination exemptions would be
authorised for religious organisations.[5]
The removal of these exemptions, and the new requirements for children of all
ages to meet immunisation requirements for the FTB-A supplement, were included
in the 2015–16 Budget as part of a package of measures aimed at boosting rates
of immunisation.[6]
Brief history of immunisation
requirements attached to social security payments
A requirement for children to meet certain immunisation
schedules has been attached to child care payments since 1998 and for the FTB-A
supplement from 2012.[7]
The immunisation schedules are contained in legislative instruments and set out
which diseases a child needs to be immunised against at various ages—at two,
four, six, 12 and 18 months and at four years) and are based on the National
Immunisation Program Schedule (the Australian Government funds vaccines listed
on this schedule).[8]
Children’s immunisation status is checked against the Australian Childhood
Immunisation Register (ACIR).[9]
The requirement attached to child care payments was
introduced as part of the Howard Government’s ‘Immunise Australia: Seven Point
Plan’, which also included increased Maternity Allowance payments for those
parents who ensured their child’s immunisation coverage was complete.[10]
The portion of Maternity Allowance paid in respect of children who had reached
the age of 18 months and who had received age-appropriate immunisation (unless the
child was exempt) was renamed the Maternity Immunisation Allowance (MIA).[11]
Exemptions from the immunisation requirements for those with
medical reasons and for those who submitted a conscientious objection to
immunisation were included in the relevant legislation when these immunisation
requirements were put in place in 1998, as were legislative instruments
allowing for an exemption specifically for members of the Church of Christ,
Scientist.[12]
In regards to the conscientious objection exemption, then Minister for Health
and Family Services, Michael Wooldridge, stated it was a parent’s right and
that the number of objectors would be small:
Many parents are concerned about potential
side effects. Some parents have a bad experience with the first immunisation
and may not be able to complete the immunisation of their children. People have
the right to make that decision in a free society. As a father of young
children myself, I understand their concern but I cannot agree with it. The net
effect is to put other people's children at risk, not just their own. However,
given that over 97 per cent of parents support immunisation, we do not expect
this group to be large.[13]
In 2004, Maternity Allowance was replaced
by Maternity Payment (which was renamed Baby Bonus in 2007) but the MIA
remained as a separate payment.[14]
In 2009, MIA was converted into two equal payments paid when children met the
18-month and 4-year old immunisation requirements.[15]
From 1 July 2012, immunisation
requirements were added to the eligibility conditions for the FTB-A supplement
and the MIA was abolished. The FTB-A supplement is a lump sum paid after the
end of the financial year to families who receive FTB-A during that financial
year—it was introduced in 2004 and is partly aimed at addressing the problem of
families incorrectly estimating their annual income and being required to repay
FTB-A overpayments at the end of the financial year following reconciliation.[16] For 2015–16 the supplement
will be $726.35 per child.[17]
However, legislation currently before the Parliament will, if passed, gradually
reduce the payment rate in 2016–17 and 2017–18, before abolishing the
supplement from 1 July 2018.[18]
The FTB-A supplement requirements are
different from those that applied to the MIA—to be eligible, families need to
have their children meet the relevant immunisation schedules when they turn
one, two and five years old to be eligible to receive the supplement for that
financial year (the supplement is paid as a lump sum after the end of the
financial year as part of the FTB reconciliation process). The FTB-A supplement
has the same exemptions from the immunisation requirements as CCB.
Current
immunisation requirements
To be eligible for the purposes of CCB and
the FTB-A supplement, a child must be up-to-date and not overdue with any
vaccinations required at a particular age in accordance with the age
appropriate vaccination schedule.[19]
Eligibility for CCR requires a person to be eligible for CCB, even if they
receive no CCB due to the income test.[20]
As a result, the CCB immunisation requirements apply indirectly to CCR.
From 1 July 2012, for the FTB-A
supplement to be paid in respect of a child turning one, two or five years
during the financial year, the child needs to be immunised in accordance with
the standard vaccination schedule for that age, or an approved catch-up
vaccination schedule.[21]
The immunisation requirements need to be met by the end of the financial year
after the financial year for which the FTB supplement is to be paid—so a child
who turned one in 2013–14 must have met the immunisation requirements by 30
June 2015 for their parent/carer to be eligible for the supplement for 2013–14.[22]
To be eligible for CCB, a child aged
under seven years of age must be immunised in accordance with a standard
vaccination schedule or an approved catch up schedule.[23] This requirement must be
met in respect of any day of care for which CCB and CCR are claimed.[24]
Exemptions
A child can also be considered to meet the
immunisation requirements applicable to both the FTB-A supplement and CCB
where:
- there is a conscientious objection to vaccination
- there is a medical contraindication covering vaccines the child is
due to receive at that point in time
- the child has natural immunity to all vaccines the child is due to
receive at that point in time or
- the child is in a class of person exempted from the requirements, or
has been determined to meet the requirements, as set out in a legislative
instrument by the Minister for Social Services.[25]
Classes of children that have been
exempted from the requirements, or which can be determined as having met the
requirements, include participants in a vaccine study conducted by Murdoch
Childrens Research Institute, those unable to be immunised due to a temporary
unavailability of a vaccine and children who have been immunised overseas.[26]
A child of a parent/carer who is a
practicing member of the Church of Christ, Scientist, may also be exempt. The
parent must provide a letter acknowledging the risks and benefits of
immunisation and declaring their child not immunised because of their religious
convictions. A church official must also confirm the parent/carer is a
practicing member of the church.[27]
Conscientious objection is defined at
section 5 of the FA Act as an objection to a child being immunised
‘based on a personal, philosophical, religious or medical belief involving a
conviction that vaccination under the latest edition of the standard
vaccination schedule should not take place’.[28]
For the objection to be accepted, it must be made in a written declaration and
a recognised immunisation provider must certify that they have discussed the
benefits and risks of immunising the child with the individual before they
declared the objection.[29]
State and
territory immunisation requirements for childcare
In recent years, a number of state
governments have introduced measures aimed at restricting access to childcare
facilities for children who are not fully-immunised. These have been dubbed ‘no
jab, no play’ measures.
New South Wales
New South Wales introduced immunisation requirements for
enrolment in childcare facilities from 1 January 2014. The
legislation allows for conscientious objectors to still be enrolled but
unvaccinated children can be excluded in the event of an outbreak of a vaccine
preventable disease.[30]
Queensland
The Queensland Government introduced legislation to
Parliament in July 2015 to allow the managers of childcare services the option
to refuse, cancel or place a condition on the enrolment or attendance of a
child who is not vaccinated or up to date with applicable immunisation
schedules.[31]
There are no exemptions for conscientious objectors.
Victoria
The Victorian Parliament is currently considering
legislation which will require children to be fully immunised in order to
attend childcare and kindergarten (preschool) from 1 January 2016.[32]
There will no exemptions for conscientious objectors, only for those with
medical reasons and for certain disadvantaged and vulnerable children, who will
be provided with 16 weeks to meet vaccination requirements.
Senate Community Affairs Committee
The Bill has been referred to the Senate Community Affairs
Legislation Committee for inquiry and report by 9 November 2015. Details
of the inquiry are available on the committee
website.[33]
Senate Scrutiny of Bills Committee
The Senate Standing Committee for the Scrutiny of Bills had
no comment to make on the Bill.[34]
The Opposition announced soon after the Budget that it will
support the implementation of the no jab, no pay policy.[35]
The Australian Greens have stated they will support ‘moves
to encourage more children to be vaccinated’. Greens spokesperson for Early Childhood
Education and Care, Senator Sarah Hanson-Young, stated:
Tightening the rules around vaccinations for
access to childcare payments allows parents to have confidence that their
children are cared for in a safe environment.
However, we are concerned that a punitive
approach alone will not do enough to increase vaccination rates. The Abbott
government needs to invest more in education programs and social marketing
strategies to increase knowledge and community demand for immunisations.[36]
Family First Senator Bob Day has stated that he supports
the policy:
The proposals withdraw taxpayer support for child care and
other services or payments should someone fail to vaccinate. Freedom of
conscience on this issue remains for those who choose not to immunise – they
can seek services and support from non-government options. The proposals,
in our view, balance that freedom against the freedom other parents expect to
have when sending their child to schools, playgrounds, parks and other public
spaces.[37]
The remaining crossbenchers have not commented
specifically on the measures.
Community sector and early childhood education and care
peak bodies have not released specific statements about the policy. Health
professionals and researchers, and their representative bodies, have taken up
different positions on the policy—these are discussed below in the ‘Key issues
and provisions’ section.
According to the Explanatory Memorandum, the Bill is
expected to provide savings of $508.3 million over the forward estimates.[38]
The savings will be derived from families who choose not to vaccinate their
children, or who are not up to date with their children’s vaccinations, being
made ineligible to receive CCB, CCR and/or the FTB-A supplement. The related
budget measure, Improving Immunisation Coverage Rates, saw $26.4 million in
expenditure towards a range of measures, one of which is incentives to health
providers to provide catch-up vaccinations.[39]
Other measures included increased data collection, an awareness campaign, and
improved performance benchmarks for states and territories.[40]
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government recognises that the Bill engages rights to physical and mental
health; rights to freedom of thought, conscience and religion; and the right to
social security, but considers that the Bill is compatible with those rights.[41]
The proposed measures will limit some individual’s rights to freedom of
thought, conscience and religion and the right to social security, but the
Government considers these limitations justified on the basis they are
protecting other individual’s rights, and are reasonable and proportionate. See
the further discussion below in the section ‘Issues around the rights of
parents and consent’.
Parliamentary Joint Committee on
Human Rights
The Parliamentary Joint Committee on Human Rights reported
on the Bill in its Twenty-ninth Report of the 44th Parliament.[42]
The Committee sought further information on the limitation the Bill places on
the right to freedom of thought, conscience and religion (under Article 18 of
the International Covenant on Civil and Political Rights) by removing
the conscientious objector exemption from the immunisation requirements for
CCB, CCR and the FTB-A supplement.[43]
The Committee found that the Statement of Compatibility with Human Rights does
not sufficiently justify the limitation as it does not explain whether the
measures would be likely to achieve the objective of encouraging vaccination,
nor whether the measures are proportionate to this objective.[44]
See the further discussion below in the section ‘Issues around the rights of
parents and consent’.
Rationale
The Bill is intended to boost childhood immunisation rates
by restricting access to certain childcare fee assistance and family assistance
payments for those whose children are not fully immunised (or who meet one of
the exemption requirements).[45]
A key measure is ending the conscientious objection exemption to the
immunisation requirements for these payments which then Minister for Social
Services, Scott Morrison, argued would provide confidence to parents with
children in childcare and ensure the government was not supporting a choice not
to immunise:
Parents who vaccinate their children should
have confidence that they can take their children to child care in particular,
without the fear that their children will be at risk of contracting a serious
or potentially life-threatening illness because of the conscientious objections
of others.
...
The choice made by some families not to
vaccinate their children is not supported by public policy or medical research
and advice to the government, nor should such action be supported by taxpayers
in the form of family payments.[46]
Immunisation
Immunisation involves giving vaccines to
people to protect against infectious diseases: immunisation is the process
whereby people are protected against an infection and vaccines are the material
used for immunisation.[47]
Vaccines work by stimulating the immune system against an infection, helping
the immune system detect and destroy any future infection without the
development of significant symptoms or complications.[48] Immunisation has greatly
reduced infections and death from diseases such as diphtheria, whooping cough,
tetanus, polio and measles in Australia.[49]
However, vaccine preventable diseases can re‑emerge in developed
countries if vaccine coverage (the proportion of the population who have
received a particular vaccination) falls below the level required for ‘herd
immunity’. Depending on both the vaccine and the particular disease, between 75
per cent and 94 per cent of a population may need to be vaccinated to stop
diseases circulating and to protect people such as newborns and those with
suppressed immune systems.[50]
Vaccines can have side-effects (like other
medicines), but the benefits of vaccines greatly outweigh the risks.[51] Serious side-effects or complications, such as allergic
reactions, are extremely rare and the vast majority of side‑effects are
mild and short-lived—primarily swelling and redness at the site of injection.[52]
In Australia, rigorous testing of the safety and effectiveness
of vaccines apply before they are approved for widespread community use, and an
ongoing post-licensure assessment process occurs to monitor any unanticipated
side‑effects.[53]
Coverage rates
For children up to five years of age, the
proportion fully immunised currently ranges from around 90 to 92 per cent
(depending on the age group).[54]
That is a significant increase in immunisation coverage rates compared to rates
in 1999. However, in recent years, overall rates have remained static.[55] Coverage rates vary
significantly across different parts of Australia—for example, 97.5 per cent of
children aged two years in 2012–13 in Katherine in the Northern Territory were
fully immunised while only 81.6 per cent of two year olds in the Richmond Valley-Coastal
area of northern New South Wales were fully immunised.[56] Some researchers have
questioned the accuracy of the ACIR data, suggesting that the published
coverage rates are significantly underestimated due to underreporting,
incorrect reporting, data entry errors and technical issues with the way
medical practice software sends data to the ACIR system.[57] A recent Australian
National Audit Office report performance audit of the ACIR also noted the
business risk posed by the ‘limited interoperability’ between the Department of
Human Services’ (DHS) information technology systems and external providers’
practice management software, which requires DHS to undertake daily manual data
cleansing and matching.[58]
Families in receipt of the FTB-A
supplement have slightly higher coverage rates than the general
population—around 97 per cent meet the immunisation schedules at the relevant
age points.[59]
Children not fully
immunised and conscientious objectors
Of the 75,000 children aged one, two or
five not recorded as being fully immunised, around 20 per cent (14,869) are
registered conscientious objectors.[60]
Formal objections require a conscientious objection form to be lodged with the
ACIR, signed by both a recognised immunisation provider and a parent or
guardian—immunisation providers must declare that the risks and benefits
associated with immunisation, and the potential dangers associated with
non-immunisation, have been explained to the parent/guardian.[61] The percentage of all children
under seven years of age with a conscientious objection recorded on the ACIR
has increased from 0.23 per cent in December 1999 (4,271 children) to 1.52 per
cent in June 2015 (34,063 children).[62]
Reasons for
children not being fully immunised
While some parents refuse to vaccinate
their children out of a concern that potential harms outweigh the benefits or
because of particular moral or philosophical beliefs, there are a range of
other reasons why some children are not up to date with their immunisation
schedules. A Western Australian survey of families with children who had no
vaccinations recorded on the ACIR found that the most common reason was that
the families had moved from overseas and their children’s vaccination records
had not been added to the national register (though only a small number of
these children would have been formally considered fully immunised under the
Australian schedules).[63]
Other reasons include a lack of transport (for parents to get their children to
an immunisation provider), confusion around the schedules and when they are
due, parents suffering from illnesses (including mental illness), different
cultural perspectives on accessing primary health care, feeling a lack of
cultural respect from health services, English-language difficulties, and not
being eligible for Medicare.[64]
Conscientious objectors are not a
homogenous group—some parents have concerns about potential impacts of vaccines
on their children while others hold more strident views accusing pharmaceutical
companies of deliberately harming children or alleging conspiracies in regards
to profit-driven immunisation schedules.[65]
Other conscientious objectors may base their decision on religious or
philosophical views. While none of the major religious faiths in Australia are
opposed to vaccination, members of the Church of Christ, Scientist were
previously given an exemption from the childcare and family payment
immunisation requirements due to their religious beliefs around disease and
medicine (as noted earlier in this Digest).[66]
However, the Church has recently stated that it holds a neutral position on the
subject of vaccination and did not make suggestions to followers as to whether
they should vaccinate their children or not.[67]
Some strict vegetarians and vegans choose to avoid certain vaccines due to the
use of animal products as ingredients or in the manufacturing process.[68]
Will the changes
boost immunisation rates?
The proposed changes offer a significant
financial incentive for many families to either reconsider their objections to
vaccination, or to ensure all of their children’s immunisations are up to date.
The FTB-A supplement is worth up to $726.35 per annum per child while CCB and
CCR payment rates depend on a family’s income and use of approved childcare.[69] Combined, the payments
can be worth thousands of dollars. It is likely that the potential loss of
these payments will motivate many families to ensure their children are up to
date with their vaccinations, particularly older children who were previously
not subject to the FTB-A supplement immunisation requirements. However, the
Government has not published any estimates as to the expected growth in vaccine
coverage rates.
Media reports following the 2015–16
Budget suggested that 10,000 conscientious objectors would lose eligibility for
CCB and/or CCR and 7,000 families would lose access to the FTB-A supplement.[70] In addition, the families
of around 146,000 teenagers whose childhood immunisations were not up to date
risked losing eligibility for the FTB-A supplement if they did not receive
catch-up vaccinations.[71]
Other reports gave a figure of 14,000 conscientious objectors losing
eligibility for these payments.[72]
This suggests the other 20,000 registered conscientious objectors will comply
with the immunisation requirements, will meet the medical exemption criteria or
will be unaffected by the measure as they do not receive family assistance or
childcare payments.
Some health professionals and researchers
have questioned whether imposing financial penalties is an effective way of
lifting immunisation rates and engaging with parents who are hesitant about
vaccinations. Hal Willaby and Julie Leask from the University of Sydney have
argued that measures which address access issues and which prompt parents who
are behind on their children’s vaccination schedules would be more effective in
boosting coverage rates.[73]
Dr Leask recognised the broad community support for the policy but questioned
whether it was justified considering the potential financial impact on some
families:
On an emotional level it has appeal because it
appeases anger about parents who reject vaccines. However, there are some
downsides to this policy that are much less obvious, but need to be considered.
In summary, it is unlikely
to make a meaningful difference to improving vacation [sic] rates. It amounts
to a form of mandatory vaccination for lower income families, but without
a no-fault vaccine injury compensation system implemented alongside. Some
children from lower income families will no longer be able to attend childcare.
It almost certainly won’t shift entrenched vaccine rejectors. As a monetary
sanction it comes with insufficient evidence of its impact on vaccination rates,
whereas Australia’s current system of incentives comes with strong
evidence for their impact on vaccination rates.[74]
Peter McIntyre from the National Centre for
Immunisation Research and Surveillance suggested that the measures offered a
new approach but that their impact beyond vaccination rates would also need to
be monitored:
This is something that hasn’t really been tried before ... We
have had evidence from the US that if you increase the hassle factor of
objecting, then a significant number of people decide to just do it, feeling
that objecting just isn’t worthwhile.
...
It could be a stunning success in terms of increasing
vaccination rates, but any undesired consequences must be monitored as well.[75]
David Isaacs from the University of
Sydney stated that immunisation rates were still strong and questioned the need
for ‘draconian’ measures: ‘My suspicion is all you’ll do through this
policy is alienate anti-vaxxers more and then you’ll have a resentful group of
suspicious people less likely to listen to government advice’.[76]
President of the Australian Medical Association, Brian
Owler, has stated concern that there would be budget savings from the measure
as it meant that a number of people are not going to be vaccinated: ‘what we
should be saying is we need to make sure that we get all those people
vaccinated and we should be aiming to actually continue to spend the same
amount on those sorts of Family Tax Benefits’.[77]
A small study of 38 ‘vaccine hesitant’ families referred
to an immunisation clinic in Melbourne found that 25 per cent proceed to full
immunisation following their referral. Of the 11 per cent who identified as
‘vaccine refusers’, none opted for immunisation. One of the authors of the
study, Margie Danchin from the Royal Children’s Hospital in Melbourne and the
Murdoch Childrens Research Institute, described the ‘no jab, no pay’-type
policies as:
... targeting under-vaccination with a very blunt instrument.
They will have the most effect on families who have access issues or are
complacent. But for families who have true hesitancy and questions about
vaccination, personally I believe a punitive approach is not helpful.[78]
In summary, the policy is expected to see an increase in
immunisation rates but questions have been raised as to the extent of the
impact, and whether alternative policies could deliver similar, or improved,
increases in immunisation coverage.
Issues around the rights of parents
and consent
In its rationale for the measures, the Government has made
a moral argument that taxpayers should not support the decision of certain
families to not vaccinate their children.[79]
This is because such a decision increases the risk that other children and
vulnerable members of the community will contract an infectious disease. Minister
for Health, Sussan Ley, has stated that it is ‘alarming’ that there is a view
that vaccination is not the best thing to do for children and that ‘in this
area a stick as well as a carrot is needed’ in order to protect others:
We know that the responsibility does rest on
parents, and sometimes when you connect that responsibility with a payment,
such as family tax benefit, people's approach might change. It is vital that,
as a government, we stay on top of this and keep our vaccination rates as high
as possible. Remember that by vaccinating everyone who can be vaccinated, you
protect those who cannot.[80]
Columnist for The Australian,
Janet Albrechtsen, argued in support of the measures:
There is nothing conscientious about the
decision of parents not to vaccinate their children. It is a reckless, uninformed
decision that puts the lives of many others, not just their children, at risk.
Why should taxpayer funds be directed to
those who cannot exercise the most basic civic responsibility?[81]
Opponents of the measures have argued that while they do
not force them to vaccinate their children, by threatening a significant
financial penalty they effectively remove the right of parents to make an
informed decision, or give informed consent, as to whether or not to vaccinate
their children. While this argument is often put alongside
arguments over the risks/benefits of vaccination, it is separate—this line of
argument questions whether the public health aims of measures such as those
proposed in the Bill should override individual rights. As one submission to
the Senate Committee inquiry on the Bill argued: ‘The government does not have
the right to determine that a medical procedure or intervention is to be
imposed on people irrespective of their agreement or consent’.[82]
The rights of parents who are vaccine objectors need to be
weighed against the rights of other parents and the rights of children (of both
sets of parents). In its discussion of the Bill’s engagement of Article 18 of
the International Covenant on Civil and Political Rights (the right to
freedom of thought, conscience and religion), the Statement of Compatibility
with Human Rights states that this article provides that such freedoms ‘may be
subject to limitations as prescribed by law and which are necessary to protect
public health or the fundamental rights and freedoms of others’.[83]
It is the view of the Government that a vaccine objection can ‘limit the rights
of others to physical and mental health’.[84]
As such, if the Bill does override the individual rights of some vaccine
objectors, the measures can be considered justified on the basis that they
protect the fundamental rights of other individuals in the community, and
public health in general.
However, the Parliamentary Joint Committee on Human Rights
has questioned whether this justification has been established. The Committee
found that the Statement on Compatibility fails to link the measures with the
objective of increasing immunisation rates and, therefore, protecting public
health:
... no information is provided to explain whether the measures
would be likely to be effective in achieving the objective of encouraging
vaccination. It is not clear to the committee whether these particular measures
which result in certain family assistance payments being withheld would be
likely to encourage persons with strongly held objections to vaccinate their
child.[85]
The Committee has sought further information from the
Government as to ‘whether there is a rational connection between the limitation
and the stated objective’.[86]
As discussed above, a number of health researchers have also questioned this
link and suggested alternative measures to improve vaccination rates. The
Committee has also asked the Government to provide information as to whether
less restrictive options which would achieve the same objective have been
explored.[87]
The issue of consent
The proposed measures do not mandate
anyone to vaccinate their children. However, opponents argue that the threat of
financial penalty constitutes coercion and undermines any ability to provide
valid consent.[88]
Submissions to a recent inquiry by the
Queensland Parliament’s Health and Ambulance Services Committee—into a Bill
providing greater power to childcare providers to refuse or cancel the
enrolment of unvaccinated children—cited the Australian Immunisation
Handbook requirements for legally valid consent which include: ‘It must be
given voluntarily in the absence of undue pressure, coercion or manipulation’.[89] While the financial
penalty/incentive could be high for some families, it is unclear whether it
should be classified as ‘undue’ pressure.
In the case of childhood immunisation,
the issue of consent is complicated by the fact that parents/carers are consenting
on behalf of their children and that, arguably, parents only have that right
insofar as they are making decisions in their child’s best interests.[90] In regards to the broader
issue of consent for immunisation, Grant Gillet from Dunedin Hospital and Simon
Walker from the Otago Bioethics Centre have argued:
... the sometimes perfunctory consent
processes on behalf of children are ethically adequate in that it is
(objectively) in every child’s best interest to be a member of a community
sharing herd immunity, and the child is not yet capable of an autonomous decision
otherwise. In fact, we could go further and say that we have a duty to
immunise children just as we have a duty to protect them from the subjectively
distorted judgments of adults leading to abuse or neglect in other areas of
parenting.[91]
Impact on children
at risk of abuse or neglect
The Bill will add a requirement for
children deemed at risk of abuse or neglect to be fully immunised before a
childcare service can receive CCB for care provided to that child. Childcare
services providing care to an ‘at risk’ child may receive a higher rate of CCB
known as Special Child Care Benefit (SCCB), which covers the full-fee cost of
care provided.[92]
Limitations apply to the duration and amount of SCCB that can be paid but there
are few restrictions on eligibility for a particular child to have SCCB paid in
respect of them other than the childcare service considers them at serious risk
of abuse or neglect.[93]
While there is no specific data correlation
between children identified as at risk of abuse or neglect and low immunisation
rates, there is some evidence linking factors such as low income, low
education, unemployment, low social contact and service information, and child
health issues with incomplete vaccination (but excluding those objecting to
vaccinations).[94]
Children at risk of abuse of neglect face
multiple barriers to attending childcare services, including affordability,
transport difficulties, parents’ distrust of institutions and concern they will
be judged.[95]
Full or high rates of childcare subsidies are considered necessary to assist
the inclusion of these children in childcare services.[96] The additional assistance
provided by SCCB to promote this inclusion is justified on the basis that:
- it can reduce the amount of time a child spends in a risk environment
- it increases the amount of time a child spends in a stable and
developmentally beneficial environment
- it assists these children to remain visible in the community and can
help link families with appropriate services and
- it provides parents/carers with an opportunity for respite or to
seek assistance from welfare and health services.[97]
Introducing immunisation requirements for
services accessing SCCB to provide care for at risk children adds an additional
barrier for this group to accessing education and care services. There is a
risk that by adding this barrier, and forcing some childcare services to turn
away children at risk of abuse and neglect, who also happen to have incomplete
vaccination schedules, they will be exposing these children to other health
risks and denying them and their families the benefits of early childhood
education and care.
Provisions
A New Tax System (Family
Assistance) Act 1999
Items 1 and 3 repeal the definition of conscientious
objection in section 5 and in the list of definitions in subsection
3(1) of the FA Act.
Item 2 inserts a new definition for general
practitioner at subsection 3(1)—the definition is to be same as in the Health
Insurance Act 1973.
Item 4 repeals subsections 6(3) to (8)—which provide
for children to meet the immunisation requirements for CCB and the FTB-A
supplement where there is a conscientious objection, medical contraindication,
natural immunity, the child is in an exempt class of children set out in a
determination or other circumstances set out by the Minister for Social
Services in a legislative instrument—and substitute proposed subsections
6(3) to (7). The proposed new subsections provide for a child to be
considered to meet the immunisation requirements for CCB and FTB-A supplement
where:
- a
general practitioner has certified in writing that the immunisation of the
child would be medically contraindicated, or that the child has a natural
immunity to a disease or diseases, or that the child is a participant in a
vaccine study approved by the Human Research Ethics Committee registered with
the National Health and Medical Research Council
- the
Commonwealth Chief Medical Officer has certified that a vaccine is temporarily
unavailable and the Secretary (of the Department of Social Services or the
Department of Education and Training) is satisfied that if the vaccine had been
available the child would have been immunised
- a
recognised immunisation provider certifies that vaccines received by a child
while they were outside Australia have provided the child with the same level
of immunisation as they would have acquired had they been vaccinated in
accordance with a standard vaccination schedule or catch up vaccination
schedule, and they have received all other vaccinations in accordance with the
relevant schedule or
- the
Secretary (of the Department of Social Services of the Department of Education
and Training) makes a determination that the child meets the immunisation
requirements, following any decision-making principles set out in a legislative
instrument made by the Minister for this purpose.
No detail has been provided in regards to what decision
making principles are intended for this last provision, or what circumstances
this discretion on the part of the Secretary is intended to cover. The current
requirements state that certain classes of children set out in legislative
instruments can be exempted from the immunisation requirements. The current
instruments cover classes that are to be included in the FA Act under
the proposed amendments—including participants in vaccine studies, children
immunised overseas and where there is a temporary unavailability of a vaccine.
They also currently cover members of the Church of Christ, Scientist (which
will no longer apply) and provide an exemption from the CCB immunisation
requirements where the child is classed as being unable to be immunised due to
‘exceptional circumstances’.[98]
An example appending the exceptional circumstances exemption describes natural
disaster situations.[99]
The new discretionary powers for the Secretary may be intended to cover similar
disaster situations but this has not been set out in the Explanatory Memorandum.
While the legislative instrument setting out the decision
making principles will be subject to parliamentary scrutiny, the determinations
made by the Secretary in accordance with these principles will not. This
provides a significant level of discretionary power to the departments to
exempt individuals from the immunisation requirements, and therefore to meet
one of the eligibility requirements for certain family assistance payments,
without any parliamentary or public scrutiny (in the form of published
determinations).
Item 5 repeals section 7, which currently provides
for the Minister to make the legislative instruments exempting certain classes
from the immunisation requirements referred to above.
Item 6 amends paragraph 42(1)(c) so that all
children aged under 20 years will need to meet the immunisation requirements to
be eligible for CCB paid via a fee-reduction at an approved childcare provider,
not just those aged under seven and born on or after 1996. This change will
affect older children attending approved childcare services such as outside
school-hours care services.
Item 7 inserts proposed subsection 42(1AA)
which effectively removes the 63 day grace period for a child to meet the CCB
immunisation requirements for those parents/carers who have been given a notice
to do so. The subsection prevents the grace period provisions at subparagraphs
42(1)(c)(ii) and (iii) from applying when a person’s claim for CCB to be paid
via a fee-reduction is being determined. This means that children must already
be up-to-date with their immunisation schedules to be eligible for CCB. It is
unclear why, if the intent is to no longer allow for a grace period to meet the
immunisation requirements, that the relevant grace period provisions are not
being repealed.
Item 8 amends subsection 44(2) so that all
children under 20 years will need to meet the immunisation requirements to be
eligible for CCB paid in respect of past-periods of approved childcare (usually
paid as a lump sum), not just those aged under seven and born on or after 1996.
Item 9 makes a similar amendment to subsection 45(2) so that the new age
requirements apply in relation to registered care providers.[100]
Item 10 inserts proposed paragraph 47(1)(c)
so that approved child care services will only be eligible for CCB by fee
reduction for a child at risk of serious abuse or neglect if the child meets
the immunisation requirements. Services providing care for a child at risk can receive
SCCB which covers the full cost of the child’s weekly childcare fees. As
discussed above, preventing children at risk of abuse or neglect from accessing
free childcare places on the basis of incomplete immunisation schedules could
heighten the risk of abuse or neglect. While it is possible that such children
could be granted an exemption from the immunisation requirements by the
Secretary, it is not clear if this is one of the circumstances to be covered by
the Secretary’s discretionary powers.
Items 11–18 make amendments to the immunisation
requirements for the FTB-A supplement set out at section 61B so that the
requirements apply in each income year (financial year) regardless of what age
the child reaches in that year. Currently the requirements only apply in the
years the child turns one, two or five years.
The Bill will remove the conscientious objection exemption
from the CCB, CCR and FTB-A supplement immunisation requirements, and apply the
requirements to children of all ages. The measures are likely to see some
conscientious objectors change their positions, as well as see a large number
of older children undertake catch-up vaccinations, but will also see many
people no longer qualifying for these payments, generating budget savings of
over $500 million over four years. The measures have been controversial amongst
both conscientious objectors and some health researchers, the latter holding
that less punitive measures could achieve a similar aim of increased
immunisation rates. There are also concerns that the measures will punish
parents and carers who are not opposed to vaccines, but are behind on their
children’s vaccination schedules for practical, financial or other reasons. The
potential impact on children at risk of abuse and neglect, particularly in
terms of limiting their access to early childhood education and care, is of
particular concern. While this issue may be addressed through the use of the
departments’ new discretionary powers, no detail has been provided as to the
intent of these powers.
The changes send a clear message from the Government to
parents that children’s immunisation is important and expected if they are to
receive certain forms of financial support. However, it is questionable whether
this policy approach is the best way to boost immunisation coverage and engage
with those parents hesitant or confused as to the benefits of vaccination.
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[1]. A New Tax System (Family
Assistance) Act 1999 (Cth), accessed 16 October 2015.
[2]. The
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[3]. T Abbott (Prime Minister) and S Morrison (Minister for Social
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[4]. Ibid.
[5]. S
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[6]. M
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[7]. Child Care Legislation
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[8]. Department
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[9]. The
ACIR is set to become the Australian Immunisation Register which would capture
all vaccinations given to people from birth—see A Grove, Australian Immunisation Register Bill 2015 [and] Australian
Immunisation Register (Consequential and Transitional Provisions) Bill 2015, Bills digest, 25, 2015–16, Parliamentary Library, Canberra, 1
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[10]. M
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[11]. D
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[12]. Child Care Legislation
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[13]. M
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[14]. D
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[15]. D
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[16]. L Taylor, ‘A better deal for most parents’, The Australian
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[17]. Department
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[18]. Parliament
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[19]. DSS,
‘1.1.I.10
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version 1.181, released 21 September 2015, DSS website, accessed 16 October
2015; DSS, ‘2.1.3.30
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[20]. DSS,
‘2.9 CCR
eligibility’, Family assistance guide, version 1.181, released 21
September 2015, DSS website, accessed 16 October 2015.
[21]. DSS,
‘2.1.3.10
FTB immunisation requirements’, Family assistance guide, version
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[22]. Ibid.
[23]. DSS,
‘2.1.3.20
CCB immunisation requirements’, Family assistance guide, version
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[24]. Ibid.
[25]. DSS,
‘2.1.3.40
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version 1.181, released 21 September 2015, DSS website, accessed 16 October
2015.
[26]. DSS,
‘2.1.3.10
FTB immunisation requirements’, op. cit.
[27]. DSS,
‘2.1.3.40
Immunisation – approved exemptions (FTB, CCB)’, op. cit.; see also Family Assistance
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[28]. A New Tax System (Family
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[29]. DSS,
‘2.1.3.40
Immunisation – approved exemptions (FTB, CCB)’, op. cit.; see also A New Tax System (Family
Assistance) Act 1999 (Cth), subsection 6(3), accessed 16 October 2015.
[30]. NSW
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[31]. Queensland
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[32]. Public
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[33]. Senate
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[34]. Senate
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[35]. C
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[36]. S
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[37]. B
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[38]. Explanatory
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[39]. Australian
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[40]. A
Grove, op. cit., p. 6.
[41]. The
Statement of Compatibility with Human Rights can be found at page 11 of the
Explanatory Memorandum to the Bill.
[42]. Parliamentary
Joint Committee on Human Rights, Twenty-ninth
report of the 44th Parliament, The Senate, Canberra, 13
October 2015, pp. 31–33, accessed 15 October 2015.
[43]. Ibid.,
p. 33.
[44]. Ibid.
[45]. S
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reading speech: Social Services Legislation Amendment (No Jab, No Pay) Bill
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[46]. Ibid.
[47]. The
science of immunisation: questions and answers, Australian Academy of
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[48]. Ibid.
[49]. Ibid.,
p. 11.
[50]. S Prasad, Vaccines on the frontline against infectious diseases, Occasional paper series, 10, Office of the Chief Scientist, Canberra,
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[51]. The
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[52]. S
Prasad, op. cit., p. 3.
[53]. The
science of immunisation: questions and answers, op. cit., p. 14.
[54]. DoH,
‘ACIR
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website, last updated 20 April 2015, accessed 12 October 2015.
[55]. Ibid.
[56]. National Health Performance Authority (NHPA), Healthy communities: immunisation rates for children in 2012–13, NHPA, Sydney, 2014, p. 33, accessed 12 October 2015.
[57]. MJ
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[58]. Australian
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[59]. T Abbott (Prime Minister) and S Morrison (Minister for Social
Services), No jab-no play and no pay for child care,
op. cit.
[60]. NHPA,
op. cit., p. iv.
[61]. DoH,
‘Vaccination
data’, Immunise Australia Program website, accessed 12
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[62]. DoH, ‘ACIR – national vaccine objection (conscientious objection) data’, Immunise Australia Program website, accessed 12 October 2015; DoH, ‘ACIR – state and territory vaccine objection (conscientious objection)
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[63]. Western Australia, Department of Health (WADoH), Investigation of Western Australian children with no vaccinations
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[64]. J Lowinger, ‘Who’s missing out on vaccinations?’, ABC
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[65]. See
submissions to the Senate Community Affairs Committee inquiry into the Bill.
For example: Mr and Mrs Dean and Angela Kelly, Submission
to Senate Community Affairs Legislation Committee, Inquiry into the Social
Services Legislation Amendment (No Jab, No Pay) Bill 2015, [2015], 4,
accessed 13 October 2015; Ms Katherine Clarke, Submission
to Senate Community Affairs Legislation Committee, Inquiry into the Social
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[66]. J
Ireland, ‘Vaccination-exempt
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31(16), 12 April 2013, pp. 2011–2023, accessed 13 October 2015; BE Eldred, AJ
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[67]. J
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[68]. BE
Eldred et al, op. cit.; Queensland Department of Health, Medicines/pharmaceuticals
of animal origin, Department of Health guideline, QH-GDL-954:2013,
1 November 2013, accessed 13 October 2015.
[69]. CCR covers 50 per cent of childcare fees up to a maximum payment of
$7,500 per year per child while CCB is an income tested payment based on the
hours and type of care accessed.
[70]. S
Maiden, ‘No-vaxxer
crunch time’, Brisbane Sunday Mail, 17 May 2015, p. 21, accessed 13
October 2015.
[71]. Ibid.
[72]. L
Scarr and P Law, ‘Grieving
parents welcome vax plan’, The Daily Telegraph, 13 April 2015, p. 3,
accessed 13 October 2015.
[73]. J Leask and H Willaby, ‘With vaccination rates stable, "no jab, no play" rules are
beside the point’, The Conversation, 22 May
2013, accessed 13 October 2015; J Leask, ‘Will stopping vaccine objectors from accessing payments have its
desired impact?’, Human Factors blog,
11 April 2015, accessed 13 October 2015.
[74]. J
Leask, ‘Will stopping vaccine objectors from accessing payments have its
desired impact?’, op. cit.
[75]. P
McIntyre quoted in M Davey, ‘Coalition’s
“no jab, no pay” policy elicits mixed feelings in health professionals’, The
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[76]. D
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[77]. B
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[78]. M
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not hardball, boosts vax uptake’, Australian Doctor, 25 September
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[79]. S
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2015’, op. cit.
[80]. S
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[81]. J
Albrechtsen, ‘No
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[82]. C
Clinch-Jones, Submission
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[83]. Statement
of Compatibility with Human Rights, Explanatory
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[84]. Ibid.
[85]. Parliamentary
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[86]. Ibid.
[87]. Ibid.
[88]. J
Parker, Submission
to Senate Community Affairs Legislation Committee, Inquiry into the Social
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[89]. Queensland
Health and Ambulance Services Committee, Public
Health (Childcare Vaccination) and Other Legislation Amendment Bill 2015,
Report, 5, 55th Parliament, Parliament of Queensland, October 2015, p. 31,
accessed 14 October 2015; DoH, ‘2.1.3 – Valid consent’, The
Australian immunisation handbook, 10th edn, DoH website, last updated
16 July 2015, accessed 14 October 2015.
[90]. G
Gillett and S Walker, ‘Immunisation
and minimally informed consent’, Journal of Law and Medicine, 20(4),
June 2013, p. 727, accessed 15 October 2015.
[91]. Ibid.,
pp. 726–727.
[92]. Special
Child Care Benefit can be paid to parents/carers or services where a child is
at risk of abuse or neglect or the parent/carer of the child is experiencing
financial hardship. For those in financial hardship, the parent/carer must be
conditionally eligible for CCB so will also have to meet the proposed new
immunisation requirements. DSS, ‘Special
Child Care Benefit fact sheet’, DSS, Canberra, March 2015, accessed
16 October 2015.
[93]. Services
base their decision regarding the risk of abuse or neglect on a range of
relevant information sources, including from the parent or carer, observations
made by childcare service staff, or information from a relevant welfare agency
such as child protection services. Ibid., p. 2.
[94]. A
Pearce, H Marshall and H Bedford, ‘Barriers
to childhood immunisation: findings from the Longitudinal Study of Australian
Children’, Vaccine, 33(29), 26 June 2015, pp. 3377-3383, accessed 15
October 2015; B P Hull, PB McIntyre and GP Sayer, ‘Factors associated with low uptake of measles and pertussis vaccines —
an ecologic study based on the Australian Childhood Immunisation Register’, Australian and New Zealand Journal of Public Health, 25(5),
October 2001, pp. 405-410, accessed 15 October 2015.
[95]. Productivity
Commission (PC), Childcare
and early childhood learning, Report, 73, vol. 2, PC, Canberra, 31
October 2014, p. 528, accessed 16 October 2015.
[96]. Ibid.
[97]. Ibid.,
p. 532.
[98]. Child
Care Benefit (Immunisation Requirements) (DEEWR) Determination 2013,
accessed 15 October 2015; Family
Assistance (Meeting the Immunisation Requirements) (FaHCSIA) Determination 2012,
accessed 15 October 2015; Family
Assistance (Exemption from Immunisation Requirements) (FaHCSIA) Determination
2012, accessed 15 October 2015.
[99]. Child Care Benefit
(Immunisation Requirements) (DEEWR) Determination 2013, section 8, accessed
15 October 2015.
[100]. Registered
care providers are generally grandparents, relatives, friends or nannies
registered with the Department of Human Services (or individuals working in
other education and care services). These providers are not subject to the same
regulations and qualification requirements as approved care providers and a
much lower rate of CCB is provided in respect of care provided by registered
care providers. See Australian Government, ‘What is
registered child care?’, mychild.gov.au website, last updated 21 July 2015,
accessed 15 October 2015.
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