An immunisation loophole under Public Health Regulation 2012...Fixed
Members of the Australian Childcare Alliance (ACA) NSW would be aware of the NSW requirement to ensure all children in their care must be immunised or are on a 12-week catch-up plan. That said, those who were already enrolled prior to 1 January 2018 are exempt of this requirement. And the Commonwealth Government’s “No Jab No Pay” still applies.
According to the Federal Government, the Australian Immunisation rates for Aboriginal and Torres Strait Islander children in New South Wales are 94.29% for one year olds, 91.01% for two year olds, and 97.34% for five year olds. And for all New South Wales children, the immunisation rate is 93.94% for one year olds, 90.23% for two year olds, and 94.56% for five year olds.
Nevertheless, thanks to one of ACA NSW’s members and ACA NSW's lawyers, we can now confirm that the regulatory irregularity stems from s44A(1)(e) of the Public Health Regulation 2012 where it states that Aboriginal and Torres Strait Islander children are exempted from the immunisation requirements. Yet this is opposite to the Public Health Act 2010’s s87(1) and the NSW Health’s Immunisation Enrolment Tookit where on page 4’s section 1.3, it states Aboriginal and Torres Strait Islander children are allowed temporary exemptions to the immunisation enrolments up to a 12-week period.
ACA NSW has requested the assistance of the NSW Minister for Health (the Hon Brad Hazzard MP), the NSW Minister for Early Childhood Education and Aboriginal Affairs (the Hon Sarah Mitchell MLC), the NSW Department of Health and the Aboriginal Health and Medical Research Council of NSW.
As members can appreciate, this regulatory irregularity puts NSW-based early childhood education and care services in a conflicted position. And should any NSW-based early childhood education and care service refuse to enrol an unimmunised Aboriginal and Torres Strait Islander child, that service could be the subject of a racial discrimination complaint with the Australian Human Rights Commission.
That said, the NSW requirements do exempt children previously enrolled before 1 January 2018 who are not immunised.
NSW Health has formally advised ACA NSW that they are “… aware of this inconsistency and will be reviewing it in 2019. In the interim, providers should continue to request approved forms for Aboriginal children in the 12 weeks after enrolment, noting that in practice there is no mechanism to de-enrol children in the event that approved documentation is not provided.”
ACA NSW urges its members to review your immunisation policy and procedures given the above information. Please feel free to contact ACA NSW on 1300 556 330 or firstname.lastname@example.org should you require any further information.
ACA NSW will of course update members of new information or advice from the NSW Government.
The NSW Government has since reassured ACA NSW that they will would recommend an amendment to the Public Health Regulation after the NSW state election (23 March 2019) which will “require vaccination records for Aboriginal and Torres Strait Islander children to be provided within 12 weeks of enrolment”.