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.

 

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