I recently obtained a free legal opinion about the prospects for parents making complaints of discrimination under the Commonwealth Disability Discrimination Act (DDA), for the denial of benefits under the No Jab No Pay law, and/or the denial or cancellation of childcare enrolment under Victorian and Queensland No Jab No Play laws.
There is both good and bad news on this front.
The Good News – No Jab No Play Victoria and Queensland
According to the legal opinion, there are sufficient grounds for parents to make complaints against childcare services, with the possibility of obtaining compensation, for the denial or cancellation of enrolment of unvaccinated children under the state-based No Jab No Play laws, but no guarantees a complaint will be successful. This is because there is very little case law to inform or predict how various sections of the DDA will be interpreted in the context of discrimination against unvaccinated children.
Although childcare services in Victoria are required by state law to not enrol unvaccinated children, and in Queensland are provided the option to not enrol or cancel the enrolment of unvaccinated children, these services are also obliged to comply with commonwealth laws such as the DDA.
In flagrant breach of its 2014 election promise to provide for the right to conscientious objection, the Andrews ALP government has placed these services in the invidious position of having to choose between complying with the state-based ‘No Jab No Play’ law which prohibits the enrolment of unvaccinated children unless they fall within an exemption category, or, complying with the Commonwealth Disability Discrimination Act (DDA) which prohibits discrimination on the basis that a person (unvaccinated child), may in the future, carry organisms causing, or capable of causing disease or illness.
Quite clearly these services are not able to comply with both the state and Commonwealth law at the same time, so must make a choice to either comply with the state-based ‘No Jab No Play’ law and risk legal proceedings for unlawful discrimination, or comply with the Commonwealth DDA by permitting the enrolment of unvaccinated children and risk the penalty provided under the state law.
As a general rule, and in accordance with s109 of the Australian Constitution, commonwealth laws prevail to the extent of any inconsistency with state laws.
S109 of the Australian Constitution provides:
When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.
On the face of it, the state-based ‘No Jab No Play’ laws are inconsistent with the Commonwealth DDA to the extent these laws apply to unvaccinated children, so arguably, childcare services may elect to comply with the Commonwealth law by enrolling unvaccinated children.
To make out a complaint under the DDA one must show that there has been either direct or indirect discrimination on the basis of disability.
It has previously been held that unvaccinated children have a disability for the purpose of the DDA. [1]
Section 4 of the DDA provides:
“disability” , in relation to a person, means:
(c) the presence in the body of organisms causing disease or illness which (j) may exist in the future; or
(d) the presence in the body of organisms capable of causing disease or illness which (j) may exist in the future.
If you have experienced discrimination – your child having been excluded from or denied enrolment in childcare for being unvaccinated – and wish to test its lawfulness under the DDA, I have prepared a comprehensive guide (click on link) to assist you.
The Bad News – No Jab No Pay
The legal opinion, unfortunately, was that there are no grounds to make complaints of discrimination for the denial of childcare subsidies and family tax benefits under the DDA.
Section 29 of the DDA provides:
It is unlawful for a person who performs any function or exercises any power under a Commonwealth law or for the purposes of a Commonwealth program or has any other responsibility for the administration of a Commonwealth law or the conduct of a Commonwealth program, to discriminate against another person on the ground of the other person’s disability in the performance of that function, the exercise of that power or the fulfilment of that responsibility.
However, it is the No Jab No Pay law itself that is discriminatory, as opposed to there being discrimination in the administration of that law. The discrimination is not occurring at the administrative level; the Department of Human Services is merely implementing a duly enacted, albeit discriminatory law.
Under the principle of parliamentary sovereignty or supremacy, the federal parliament, as the democratically elected representative body, may enact discriminatory laws under various constitutional heads of power as it sees fit, even when the law will violate existing discrimination laws. This is because there is no general right to equality or non-discrimination conferred by the Australian Constitution.
Please note: this does not mean the No Jab No Pay law isn’t unconstitutional for other reasons. As readers would know, the AVN is in the process of preparing a High Court challenge to the constitutional validity of No Jab No Pay. This opinion doesn’t change that.
This blog may also be shared with childcare services.
References
[1] Beattie (on behalf of Kiro and Lewis Beattie) v Maroochy Shire Council [1996] HREOCA 40 (20 December 1996)
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HREOCA/1996/40.html
Disclaimer: All information contained herein was, to the author’s knowledge, correct at the time of writing, but is not intended to constitute legal advice.
Tyrannical Times 
Hello, curious if a child was enrolled in kinder in 2015 and will be repeating 4yo kinder does this enrollment still come under the initial one before the legislation was passed? I am asked by staff to get letter from Dr about vaccines but unable to get medical exemption despite a reaction after 6month vacc. Is there some legal info I can give the kinder. Kind regards
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Belinda, enrolment is not defined in the Act, so you would need to ask the provider whether or not repeating kindergarten constitutes a new enrolment. I’ve been advised by one parent that as their child will be moving from 3 year old kindergarten to 4 year old kindergarten in 2017 this constitutes a new enrolment and as such invokes the vaccination requirement.
Our lawmakers are such geniuses that they didn’t consider such an obvious uncertainty which should have been addressed in the definitions section.
You can provide this blog and the accompanying guide (link provided in blog) to the kindergarten to advise them of their obligations under the Commonwealth law. I would imagine that Health Minister Jill Hennessy would not have advised these services that they may be in breach of federal law by requiring them to deny enrolment to unvaccinated children under state law.
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Reblogged this on Poly Mum of eight and commented:
A must read for those in Australia looking for some way to fight back against the tyrannical vaccination legislation in Australia!
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My son Max incurred 2 government inforced vaccines under threats of supervision order for not meeting my healthy weight child that was meeting all his developmental milestones in the average percentile range I held off until 5 and a half months 12 hours later I wake to a gurgling slung my son was blue in his cot gasping
Rushed to emergency for now belived apnea aka (anaphylactic)
This is what Max incurred
hello just wondering my 4 month old son had his a seisure the other night i took him to frankston hospital there he was addmitted into emergency intantly but the the treatment recived was far from satisfactory the nurse admminissterd my son with 5 ml of midazalow which is anty seisure medication the thing is the doctor said to only administer 2 ml this means the content was 2.5 x the correct dose enough for a large adult then panic set on both the doctors and nurses face the side affect for administering to much of this drug is potentialy another seisure which he then had 1 more and lost contiousness they were injecting his knuckles and feet with what looked like water or saline trying to flush his system i also whent onto midazlow information website and it says this drug should not be administerd to any child under 8 years old my son is 4 months it dosnt stop there the breathing machine that he was on was set for an adult for 20 mins the doctor finally relised then set it to 5 pumps from 15 but the worst part is on his medical chart or medications sheet the nurse alterd it stating they gave my my son 2ml at 5;30 then another 3ml at 5;40 thats not how it happend and its not right they didnt even keep my son for 24 hour observation after they o.d my son
Let me please reiterate again :
Arch Dis Child. 1978 Mar;53(3):193-200.
Reflex anoxic seizures (‘white breath-holding’): nonepileptic vagal attacks.
Stephenson JB.
Abstract
From clinical history 58 children were diagnosed as having reflex anoxic seizures secondary to provoked cardioinhibition (also known as white breath-holding attacks). Before referral, these seizures were commonly misdiagnosed as epileptic either because the provocation was ignored, not recognised, or was a febrile illness, or because there was no crying, no obvious breath-holding, little cyanosis, and often no pallor to suggest syncope and cerebral ischaemia. The duration of cardiac asystole after ocular compression was measured in these children and in 60 additional children with other paroxysmal disorders. In 45 (78%) of the 58 with reflex anoxic seizures asystole was 2 seconds or over, and in 32 (55%) it was 4 seconds or greater, an abnormal response. Review of the literature supports the concept that these seizures result from vagal-mediated reflex cardiac arrest which can if necessary be prevented by atropine. The simple name ‘vagal attack’ is proposed. Ocular compression under EEG and ECG control supports the clinical diagnosis if asystole and/or an anoxic seizure is induced; the procedure described is safe and should be routine in seizure or syncope evaluation, when a meticulous history still leaves room for doubt.
Max was diagnosed as epileptic and givin salts and sodium based mind numbing medicines for a sever hart condition just so he couldn’t tell us of what was happening to his body watch doctors and nurses like Hawks
The hospital recorded the first ever person to develop sever epilepsy from not one but 2 vaccine
Anything to pass the buck
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How do you get around Section 48 of the DDA?
48 Infectious diseases
This Part does not render it unlawful for a person to discriminate against another person on the ground of the other person’s disability if:
(a) the person’s disability is an infectious disease; and
(b) the discrimination is reasonably necessary to protect public health.
This seems to clearly exclude the possibility of filing a successful discrimination claim based on vaccination status.
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Kevin, an unvaccinated child’s disability is not an infectious disease as provided in s48 (a). An unvaccinated child’s disability is: (1) the presence in the body of organisms causing disease or illness which may exist in the future or; (2) the presence in the body of organisms capable of causing disease or illness which may exist in the future. If section 48 (a) doesn’t apply, then there is no defence available under s48 (b).
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I’m wondering then about the legal status of the fully-vaccinated in relation to all this, since shedding the vaccine viral antigen, or in the case of Whooping Cough (based on the latest science on the subject) asymptomatic spread of pertussis, via recipients of the acellular (aP) component of the multi-dose DTaP. After all, shedding is a post-jab phenomenon documented in the medical literature and the manufacturer’s product information. It is neither being tested for, nor precautions taken (quarantining the recently vaccinated), where the vaccinated majority in daycare centres is concerned.
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To the best of your knowledge, has a complaint been made under the Act successfully or unsuccessfully in Victoria for kinder enrolment / re-enrolment for 2017? I see a few months have passed since this article was posted and I am looking at options for my child who was to complete another year of three year old kinder next year. Has this now been tested in a real life scenario?
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