The question of the legality of the so-called ‘No Jab No Pay’ law has never been far from my mind since the prospect of abolishing belief exemptions for childcare and family tax benefits first emerged in February last year, following the release of a Productivity Commission report containing such a recommendation.

However, notwithstanding the utter moral repugnancy of linking means-tested welfare payments to vaccination without provision for belief exemptions, it was always going to be a bridge-too-far to prevent this law from being passed using logical or moral reasoning, for reasons which I will not document here (readers familiar with the topic will already be aware of those reasons).

Consequently, the burden was always going to fall on pro-choice advocates to find a legal antidote to this poisonous, tyrannical law.  The negative impact of this law on some families will be severe.  Those families on the lowest incomes and reliant on childcare services to participate in the workforce, will lose up $15,000 per annum per child in subsidies unless they agree to vaccinate their children against their deeply held beliefs, resulting in childcare becoming unaffordable.  As we know, in many parts of Australia, it has become essential for both parents to work in order to make ends meet, largely due to the significant cost of housing. As a result, access to childcare services is now essential for a significant percentage of the population.

For this reason, it’s difficult to imagine a more callous act by government, one not justified on public health grounds, if one was to subscribe to the fact that vaccines prevent disease in the first place.  According to the Australian Childhood Immunisation Register (ACIR), as at the end of 2014, the children of conscientious objectors represented just 1.77% of children under the age of 63 months.  In addition, the ‘No Jab No Pay’ law does not prohibit enrolment in childcare services, so those on high incomes will still be able to enrol their unvaccinated children.  It is strictly a punitive financial measure, whose impact is greatest on the poor.

It’s worth noting that the Joint Parliamentary Committee on Human Rights considered the ‘No Jab No Pay’ Bill back in October and expressed two key concerns about the Bill (page 31).

1. There is no rational connection between the limitation on human rights and the purpose of the Bill.

2. The limitation on human rights is not reasonable or proportionate to achieve the Bill’s stated objective and that there may be less restrictive means by which the government may achieve the Bill’s objective.

The Minister for Social Services, Christian Porter, had not responded to these concerns when the Bill passed both houses on 23 November 2015.  It makes one wonder why these parliamentary committees are convened in the first place if Bills can be passed regardless of the fact that human rights are being infringed without sufficient justification.

An obvious and critical aspect of the No Jab No Pay law is that it is dependent for its operation on the use of vaccination status data collected and held by the Australian Childhood Immunisation Register during the past 20 years.

I have always always objected to the govern ment collecting information about my children’s vaccination habits – or rather non-vaccination habits – however, like most, I was never inclined to investigate further the legality of it doing so, for the fact that belief exemptions have been permitted since a vaccination requirement was first used to regulate eligibility to child care payments.  There was simply no need – at least that’s what I thought before last year.  No Jab No Pay is a potent lesson in why we should only permit the government to collect information about us on a need-to-know basis, otherwise, some day, in some way, it will eventually be used against us, as is being done now.

Contrary to what nanny-state proponents would have us believe, information privacy is something everyone should be concerned about!

“If you’ve done nothing wrong then you shouldn’t care about what information the government is collecting about you” they proclaim.

Well, up until 31 December 2015, conscientious objectors to vaccination weren’t doing anything wrong, yet from January 01 2016 we are now being denied entitlement to child-care and family tax benefits.

priv
Courtesy: Royalty Free Cartoons

The passage of No Jab No Pay necessitates a closer examination of the validity of the register itself, as well as the validity of the purposes for which the government is collecting and using information held by the register against a percentage of its citizens.

Just because the government has been collecting individual vaccination status information about our children for 20 years, doesn’t mean it has been doing so lawfully!

The register, the extent of personal information collected, and how information held by the register may be legally used should be a key focus for any lawyer charged with examining ways to restore our rights.  The register law may present an easier avenue by which to achieve this end than the actual No Jab No Pay legislation itself.

History and use of the Register

The ACIR was constituted by regulation in 1995, and subsequently incorporated into legislation in 1996, by amendment to the Health Insurance Act 1973.  The parliamentary digest for this amendment provides an overview of the proposed, narrow uses of information collected by the register.  Importantly, from its inception up until commencement of the Child Care Payments Act 1997, vaccination status data collected by the register did not include non-vaccination, nor could it be used for the purpose of regulating eligibility to child care or family payments.

Secondly, between late 1997 and 2015 – whilst vaccination status data collected by the register was used to regulate eligibility to certain child care and family payments following enactment of the Child Care Payments Act, and subsequently A New Tax System (Family Assistance) Act – the data was collected and used on the basis that belief exemptions were in force during this period.  No Jab No Pay proposes to use vaccination status data collected for this earlier purpose (inclusive of the right to belief exemptions), for a broader purpose, namely, enforcement of a vaccination requirement without belief exemptions.

In other words, the government has been deceptively collecting vaccination status data about our children for the last 18 years on the basis that collection and use of that data for regulating eligibility to child care and family payments included an entitlement to register a belief exemption, but now intends to use the information collected to date for a broader purpose not inclusive of a right to register a belief exemption.  A classic bait and switch.

Constitutional bases purporting to authorise the immunisation register

The Australian Immunisation Register Act 2015 passed late last year, purports to provide authority for the government to continue to keep an immunisation register, and in fact extends the children’s register to include those “children” up to 20 years of age.  Yes, adult “children”, and later in 2016, the register will become a whole-of-life immunisation register.  Are you feeling the warmth of that nanny state blanket yet?

Section 13 of the new Immunisation Register Act provides a list of constitutional bases (as found in section 51) on which the immunisation register may be authorised and as much as I would like for the immunisation register to be dead and buried altogether, have little doubt that one or more of those bases would support the constitutional validity of the immunisation register itself.  After all, a sufficient connection between the register law and one of those powers is all that’s required for the Commonwealth to have the necessary power to legislate in that area.

(a)  the provision of pharmaceutical benefits; or

(b)  the provision of medical services (without any form of civil conscription); or

(c)  census or statistics; or

(d)  external affairs, including:

(i)  giving effect to an international agreement to which Australia is a party; or

(ii)  addressing matters of international concern; or

(e)  a Territory or a Commonwealth place (within the meaning of the Commonwealth Places (Application of Laws) Act 1970 ); or

(f)  the implied power of the Parliament to make laws with respect to nationhood; or

(g)  the executive power of the Commonwealth; or

(h)  matters incidental to the execution of any of the legislative powers of the Parliament or the executive power of the Commonwealth.

However, it’s one thing for the Commonwealth to have the necessary legislative power to create and keep an immunisation register, but quite another to collect and use personal medical information for expedient purposes in excess of its authorised powers.

For example, under the census and statistics power, it would be entirely possible to argue that the collection and use of vaccination status data about individuals – identifiable by name, date of birth, address, and Medicare number – is well beyond the scope of that power.

It remains to be seen whether or not the Commonwealth has the necessary power to collect vaccination status data about individuals with a level of identifying information sufficient to regulate entitlement to means-tested welfare payments.  If it doesn’t, then it will lose the only effective carrot it has ever had by which to lift immunisation rates, and it will only have itself to blame for enacting such a draconian law.

Only time will tell.

Advertisements