EXPLANATORY STATEMENT
Child Care Benefit (Immunisation Requirements) (DEEWR) Determination 2013
Summary
The Child Care Benefit (Immunisation Requirements) (DEEWR) Determination 2013 (the Determination) replaces two determinations previously made and specifies the classes of children who either:
- are exempt from the immunisation requirements, under subsection 6(7) of the A New Tax System (Family Assistance) Act 1999 (the Act); or
- meet the immunisation requirements for the purposes of subsection 6(8) of the Act.
Background
The Determination is made under subsections 7(1) and 7(2) of the Act. Subsection 7(1) provides that the Minister may, by legislative instrument, determine classes of children who are exempt from the immunisation requirements. Subsection 7(2) provides that the Minister may, by legislative instrument, determine that children in a specified class meet the immunisation requirements in circumstances specified in the Determination.
The Determination replaces two determinations previously made (for exemption and for meeting the immunisation requirements, respectively) with one legislative instrument. The Determination includes two new provisions: first, exemption of a child from the immunisation requirements during a period when exceptional circumstances apply; and second, clarification of the circumstances in which a child may meet the immunisation requirements in relation to vaccinations received overseas, other than in accordance with the standard vaccination schedule or the catch up vaccination schedule for the child.
The Determination is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Explanation of provisions
Section 1 sets out the name of the Determination.
Section 2 provides that the Determination commences on 1 July 2013.
Section 3 revokes, pursuant to the power in subsection 33(3) of the Acts Interpretation Act 1901, the Family Assistance (Meeting the Immunisation Requirements) Determination 2003 and the Family Assistance (Exemption from Immunisation Requirements) Determination 2003.
Section 4 defines terms used in the Determination.
Subsection 5(1) provides that the Determination only applies to child care benefit.
Subsection 5(2) provides that the Determination only applies to claims for child care benefit made on or after 1 July 2013.
Section 6 provides that Part 2 of the Determination (sections 6 to 8) sets out the classes of children exempted from the requirement to be immunised for subsection 6(7) of the Act.
Section 7 provides that a child is exempt from the requirement to be immunised if a person in relation to whom the child is an FTB child or a regular care child, or the partner of the person, is a practising member of the Church of Christ, Scientist; this fact is declared in writing by an officer of that Church; and the declaration is given to the Secretary. This allows children of practising members of that Church to be exempt from the requirement to be immunised without obtaining exemption from a medical practitioner, which is contrary to the Church’s belief.
Section 8 provides that a child is exempt for a period from the requirement to be immunised if the Secretary is satisfied that the child is unable to meet the immunisation requirements during the period due to exceptional circumstances. The period of the exemption is the period for which the Secretary is satisfied that the exceptional circumstances exist. As an example, a child might be unable to receive a vaccination according to a standard vaccination schedule or a catch up vaccination schedule if regular medical services are unavailable to the child because of flooding or other natural disaster.
Section 9 provides that Part 3 of the Determination (sections 9 to 12) sets out the circumstances in which a child meets the immunisation requirements for the purposes of subsection 6(8) of the Act.
Section 10 provides that a child meets the immunisation requirements if the child is included in the class of children who are participants in the vaccine study that began in April 2003 by the Vaccine and Immunisation Research Group at the Murdoch Children’s Research Institute at the Royal Children’s Hospital, Melbourne. This longstanding provision ensures that children participating in this trial of new vaccines are not disadvantaged in relation to their eligibility for child care benefit as a result of their participation in the study.
Section 11 provides for the situation where a child is not vaccinated because a vaccine is temporarily not available. A recognised immunisation provider or a person authorised by a Commonwealth, state or territory health authority and acceptable to the Secretary must provide a written declaration that the relevant vaccine is temporarily not available. In this situation, the child meets the immunisation requirement provided that the child has received all other relevant vaccinations.
Section 12 provides that children who are vaccinated overseas meet the immunisation requirements other than by complying with the standard vaccination schedule or catch up schedule for the child, if certain conditions are met. The conditions are that the vaccination(s) received overseas provide the child with the same level of immunisation as the child would have received if the child had been vaccinated in accordance with the standard vaccination schedule or the catch up vaccination schedule applicable to the child.
Consultation
The Department of Families, Housing, Community Services and Indigenous Affairs was consulted in the preparation of this legislative instrument. No further consultation was undertaken or considered necessary due to there being no or minimal impact on stakeholders.
Regulatory Impact Statement
The Office of Best Practice Regulation (OBPR) was consulted in the preparation of this legislative instrument. OBPR has advised that as the proposal has no impact on business a Regulation Impact Statement is not required.
The measures in this legislative instrument affect entitlements to government payments and do not impose compliance costs on businesses, and do not require or encourage business to alter their behaviour.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Child Care Benefit (Immunisation Requirements) (DEEWR) Determination 2013
This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Background
The Australian Government aims to increase national immunisation rates for vaccine preventable diseases, including for children. Immunisation is a simple, safe and effective way of protecting people against harmful diseases before they come into contact with them in the community. Immunisation not only protects individuals, but also others in the community, by reducing the spread of disease.[1]
To support this aim, the family assistance law requires children to meet the immunisation requirements specified in section 6 of the A New Tax System (Family Assistance) Act 1999 (the Act), as a condition of eligibility for receipt of family payments and child care payments. Section 6 sets out when a child meets the immunisation requirements, and includes exceptions from being immunised in accordance with the standard vaccination schedule or the catch up vaccination schedule for the child (sections 4 and 6(2) of the Act). These exceptions are: conscientious objection, medical contraindication, natural immunity, and exempt classes and other circumstances. The last two categories refer to classes of children which may be specified by the Minister in a determination made under section 7 of the Act. The Child Care Benefit (Immunisation Requirements) (DEEWR) Determination 2013 (the Determination) is such a determination.
Overview of the Legislative Instrument
The Determination provides that the following classes of children meet the immunisation requirements for the purposes of section 6 of the Act under either subsection 6(7) [child is in a class exempted from the requirement to be immunised] or subsection 6(8) [determination provides that the child meets the immunisation requirements]:
- a child of a practising member of the Church of Christ, Scientist;
- a child who is unable to meet the immunisation requirements because of exceptional circumstances (but only for the period the exceptional circumstances exist);
- a child who is participating in the vaccination study conducted by Murdoch Children’s Research Institute;
- a child who has not received a vaccination as required at a particular age because one or more vaccines for that vaccination are temporarily not available (but only until the vaccine becomes available); and
- a child who is vaccinated overseas other than in accordance with the standard vaccination schedule or the catch up schedule for the child, provided that the child has received the same level of immunisation that he or she would have acquired if he or she had been vaccinated in accordance with the relevant vaccine(s) from the standard vaccination schedule or the catch up vaccination schedule for the child.
Human rights implications
The Determination engages the following human rights:
- rights to health in Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and Article 24 of the Convention on the Rights of the Child (CRC);
- the right to social security in Article 9 of the ICESCR; and
- the right to freedom of religion and belief in Article 18 of the International Covenant on Civil and Political Rights (ICCPR).
The right to health in Article 12 of the ICESCR requires the recognition of the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. In particular, countries should make provision for the healthy development of the child and the prevention, treatment and control of epidemic, endemic, occupational and other diseases. Article 24 of the CRC also contains specific obligations to ensure that children enjoy the highest attainable standard of health.
The Act imposes immunisation requirements as a condition of eligibility for receipt of family payments and child care payments for the purpose of protecting the health of the public through increasing national immunisation rates and protecting both children and those in the community more broadly from the spread of disease. The Determination prescribes that certain classes of children meet the immunisation requirements for the purposes of section 6 of the Act even though they are not immunised (within the meaning of ‘immunised’ as defined in section 3 of the Act).
Some classes of children specified in the Determination will have the same level of immunisation as a child vaccinated in accordance with the standard vaccination schedule or catch up schedule applicable to the child (children participating in the Murdoch Children’s Research Institute vaccination study, children vaccinated overseas who satisfy the requirements in section 12 of the Determination), albeit achieved by alternative means.
The other classes of children specified in the Determination are granted either a temporary (exceptional circumstances, vaccine temporarily not available) or a permanent (children of a member of the Church of Christ, Scientist) exception from being immunised. These exceptions could be considered to constitute limitations on the right to health, by excluding the application of a scheme of vaccination of children, which is intended, overall, to protect public health. However, these exceptions are reasonable, necessary and proportionate to achieving a legitimate objective.
In addition, in relation to all the classes of children specified in the Determination, individuals are not prevented from obtaining access to relevant social security entitlements (child care benefit and child care rebate) where there are valid reasons for not being immunised in accordance with the standard vaccination schedule or catch up vaccination schedule for the child. In this way, specifying the classes of children in the Determination promotes the right to social security in Article 9 of the ICESCR.
The Determination provides that children participating in the vaccination study conducted by Murdoch Children’s Research Institute meet the immunisation requirements for the purposes of section 6 of the Act. This ensures that the families of the cohort of children who are participants in trials of immunisation vaccines are not prevented from eligibility for child care benefit, provided that the immunisation the child receives while participating in the vaccination study is equivalent to that which would be acquired if the child had been immunised according to the standard vaccination schedule for the child. Providing that these children meet the immunisation requirements ensures their rights to social security in Article 9 of the ICESCR are maintained through their continued eligibility for child care payments, as well as promoting these children’s rights to health in Article 12 of the ICESCR.
The Determination also provides that a child meets the immunisation requirements for the purposes of section 6 of the Act, if the child becomes overdue for a vaccine under the standard vaccination schedule for the child during a period for which the relevant vaccine is temporarily not available, provided that the fact that the vaccine was not available is declared in writing to the Secretary by a person authorised by an Australian health authority. This exception only lasts for the period during which the vaccine is temporarily not available. This is a proportionate measure which recognises that if a vaccine is temporarily not available, a child may not be able to be immunised in accordance with the standard vaccination schedule for the child. Circumstances where a vaccine might be temporarily not available include where the supply of a vaccine is temporarily interrupted or where particular situations might prevent access to vaccination, such as if a child lives in community where the medical personnel make only infrequent visits. When the vaccine becomes available, the child must be vaccinated in accordance with the applicable catch up vaccination schedule. Providing that these children meet the immunisation requirements ensures their rights to social security in Article 9 of the ICESCR are maintained through their continued eligibility for child care payments, as well as promoting these children’s rights to health in Article 12 of the ICESCR.
The Determination also provides that a child meets the immunisation requirements for the purposes of section 6 of the Act, if the child has been vaccinated overseas other than in accordance with the standard vaccination schedule or catch up vaccination schedule for the child, but has acquired the same level of immunisation that the child would have received if the child had been vaccinated with the relevant vaccines from the standard vaccination schedule or the catch up vaccination schedule applicable to the child. For example, a child might receive vaccination in a country where the immunisation schedule does not correspond precisely to the standard vaccination schedule or the catch up vaccination schedule applicable to the child. This is a reasonable and proportionate measure which recognises that alternative immunisation schedules may exist in other countries and provide the same level of immunisation as would be obtained if a child were immunised in Australia. Providing that these children meet the immunisation requirements ensures their rights to social security in Article 9 of the ICESCR are maintained through their continued eligibility for child care payments, as well as promoting these children’s rights to health in Article 12 of the ICESCR.
The Determination also provides that a child meets the immunisation requirements for the purposes of section 6 of the Act, if the child is unable to meet the requirement to be immunised, for a period, because of exceptional circumstances. This exemption is limited to the period during which the Secretary is satisfied that the exceptional circumstances mean that the child is unable to meet the requirement to be immunised. For example, a child’s home may be subject to a natural disaster preventing the child attending the local doctor. The child must receive a ‘catch-up’ vaccination as soon as it is possible to do so in order to continue to meet the immunisation requirements and receive the family and child care payments. This is a reasonable and proportionate measure that is limited to the particular period of time during which the exceptional circumstances exist. Providing that these children meet the immunisation requirements ensures their rights to social security in Article 9 of the ICESCR are maintained through their continued eligibility for child care payments during the period of exceptional circumstances, as well as promoting these children’s rights to health in Article 12 of the ICESCR.
The Determination also provides that a child meets the immunisation requirements for the purposes of section 6 of the Act, if the child is a child of a practicing member of the Church of Christ, Scientist. Members of the Church may consider it contrary to their religious belief to vaccinate their children and to consult a medical practitioner. To satisfy the requirements for conscientious objection to the requirement for a child to be immunised in subsections 6(3) and 6(4) of the Act, the child’s parent must consult with, and obtain a written declaration from, a recognised immunisation provider. Accordingly, members of the Church would be required to act contrary to their religious belief to obtain the exemption from the requirement to be immunised provided for in subsections 6(3) and 6(4) of the Act. Section 7 of the Determination provides an alternative means for practicing members of the Church to obtain the equivalent of the conscious exemption available under the Act, without requiring them to act contrary to their religious belief. Providing that these children meet the immunisation requirements in this way ensures the rights of persons to have, adopt and manifest their religious beliefs, are maintained in accordance with Article 18 of the International Covenant on Civil and Political Rights and also ensures their rights to social security in Article 9 of the ICESCR with respect to eligibility for child care benefit.
Conclusion
This legislative instrument is compatible with human rights as it promotes rights and to the extent that it may limit rights, these limitations are reasonable, necessary and proportionate to achieving a legitimate aim.
Minister for Early Childhood and Child Care, the Honourable Kate Ellis.
[1] See http://www.immunise.health.gov.au/internet/immunise/publishing.nsf/Content/about-the-program.