How to make a complaint against a childcare service under the Disability Discrimination Act 1992 (Cth)

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 Disability Discrimination Act (DDA), I have prepared the following guide.  This guide has been adapted from the Australian Human Commission (the Commission) website for the benefit of those parents wishing to make complaints of unlawful discrimination against Victorian and Queensland childcare services for refusing to enrol or cancelling the enrolment of unvaccinated children under those states’ No Jab No Play laws, and in light of a legal opinion provided to the author.

The term ‘childcare service’ is used throughout this guide but is intended to include other similar services – for example, kindergartens – identified in the relevant state No Jab No Play laws.

This guide may also be used by those parents in states and territories other than Victoria and Queensland whose children have been excluded or denied enrolment for being unvaccinated, but not under a state law.  The complaint process is identical, but the defences upon which childcare services in these other states and territories may seek to rely are slightly different.

Please feel free to contact me if you have any questions.  I am happy to provide any assistance I can.  I am also able to put you in contact in with a parent who has been through the complaint process and is happy to provide guidance and support to others wishing to make complaints.

  1. Make a complaint
  • You may make a complaint about unlawful discrimination no matter where you live in Australia and it doesn’t cost anything to make a complaint to the Commission.
  • You do not need to engage a lawyer (but may if you wish) to make a complaint to the Commission.  The complaint process is designed to be accessible to people of all income levels, not just the wealthy.
  • All complaints must be in writing. You can complete the complaint form and email, post or fax it to the Commission or you can lodge an online complaint via the Commission’s website.
  1. Information which needs to be included in the complaint form
  • Your details (the complainant)
  • Your child’s details (person on whose behalf you are making complaint)
  • The name of the childcare service (Respondent 1)
  • What you are complaining about (place a cross in the box entitled “I have been discriminated against because of my disability”)
  • When did the discrimination occur (the date the childcare service denied enrolment to your child or cancelled the enrolment of your child)
  • What happened?  I recommend the following wording be used because it has been prepared in light of the legal opinion and is consistent with a 1996 decision in the Human Rights and Equal Opportunity Commission (HREOC) [1].

Sample Wording 1 (denial of enrolment) 

ZZZ Childcare Pty Ltd refused to enrol my child on the basis of my child’s disability. My 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; or
(3) the presence in the body of organisms causing disease or illness which is imputed to my child; or
(4) the presence in the body of organisms capable of causing disease or illness which is imputed to my child.

My child’s disability arises due to being unvaccinated or not being up-to-date with all requisite vaccinations.

Sample Wording 2 (cancellation of enrolment)

ZZZ Childcare Pty Ltd cancelled my child’s enrolment on the basis of my child’s disability. My 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; or
(3) the presence in the body of organisms causing disease or illness which is imputed to my child; or
(4) the presence in the body of organisms capable of causing disease or illness which is imputed to my child.

My child’s disability arises due to being unvaccinated or not being up-to-date with all requisite vaccinations.

  • How the complaint might be resolved

Sample Wording

(1) By the service agreeing to enrol or re-enrol my child; or

(2) By the service agreeing to pay financial compensation for my child’s loss of early childhood education and socialisation opportunities; or

(3) a combination of 1 and 2.

  • Have you complained to another organisation? (No)
  1. Investigation
  • The Commission will contact you to talk about your complaint and may ask you to provide more information.
  • Generally, the Commission will also contact the person or organisation you are complaining about, provide them with a copy of your complaint and ask for their comments and other relevant information. The Commission will then let you know what they have said in response to your complaint.
  • The Commission may contact you about trying to resolve the complaint by conciliation.
  1. Conciliation
  • Conciliation means that the Commission will try to help you and the person or organisation you are complaining about try to find a way to resolve the matter.
  • Conciliation can take place in a face-to-face meeting called a ‘conciliation conference’ or through a telephone conference. In some cases complaints can be resolved through an exchange of letters or by passing messages by phone or email through the conciliator.
  • Complaints may be resolved in different ways. For example by a change in enrolment policy or financial compensation.
  • Conciliated complaints remain confidential at all times, and the results are not published regardless of the outcome.
  • The Commission does not have the power to decide if unlawful discrimination has happened, only to facilitate conciliation between the complainant (you on behalf of your child) and the respondent (childcare service).  Consequently, if the complaint is not resolved by conciliation then the complaint will be terminated, at which point you will have two options.  You may either walk away, or, continue to the next stage, which is to commence court proceedings.
  1. Court proceedings following termination of your complaint
  • You have 60 days from when the Commission finalises/terminates your complaint to make an application to the Federal Circuit Court of Australia or the Federal Court of Australia.
  • Although not essential, I would strongly advise those wishing to proceed to the Federal Court to engage legal representation.
  • Victorian and Queensland Legal Aid schemes may be able to grant funding for legal representation subject to means and merits tests.  In addition, there is a range of federal Legal Aid schemes, administered by the Attorney-General’s department, which may grant funding for legal representation subject to its own means and merits tests.  The contact details for each of the three schemes are provided below in section 7.

6. Defences available under the DDA

A childcare service may seek to rely on sections 47 or 48 of the DDA to argue that, although non-enrolment or cancellation of enrolment of unvaccinated children is discriminatory, such discrimination is not unlawful.

Section 47 does not offer the requisite support as the Public Health and Wellbeing Act 2008 (Vic) and Public Health Act 2005 (Qld) are neither directly listed, nor are they prescribed laws (sub-section 2).  Prescribed laws are listed in Schedule 1 of the DDA Regulations [2].

Section 48 which provides:

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.

However, the wording of subsection (a) would suggest that this defence is only available when the person’s disability is an existing infectious disease.  An unvaccinated child’s disability is not an infectious disease which presently exists. Rather, it is a disease which may exist in the future.  The Victorian and Queensland laws do not discriminate on the basis of existing infectious disease; they discriminate on the basis that an unvaccinated child may suffer a disease in the future.  If this interpretation is correct, a complainant would not be required to prove that unvaccinated children do not pose a risk to the public health under subsection (b).  Please note that this was not argued in the HREOC case cited above.

In any case, a public health defence under section 48 subsection (b) would be difficult to sustain for the following reasons.

(1) Excluding unvaccinated, but otherwise healthy children is not “reasonably necessary”.

(2) The Victorian law’s effect is to exclude unvaccinated children and the Queensland law’s effect is to provide childcare services the option to exclude or not enrol unvaccinated children, but not those allegedly unprotected for other reasons.  For example:

(a) those who are too young to have been vaccinated; and

(b) those who have been vaccinated, but who are not protected due to not producing the required biological response claimed to confer immunity; and

(c) child care centre employees.

(d) The No Jab No Play laws also do not exclude, or provide the option to exclude recent recipients of live attenuated virus vaccines.  There is a significant body of scientific evidence that children recently vaccinated with live, attenuated viruses pose a genuine risk to close contacts in the post-vaccine period. Live attenuated vaccine viruses, such as Measles, Mumps, Rubella, Chickenpox and Rotavirus have been regularly associated with disease in the recently vaccinated, and transmission of the vaccine-strain viruses to others resulting in disease has been documented as well.

(e) In addition, a particularly ironic effect of these No Jab No Play laws is that Hepatitis B negative, may be denied enrolment merely for being unvaccinated, at the same time as a Hepatitis B positive child may be enrolled (as long as they have been vaccinated), and their parents are not even under a legal obligation to advise a child care centre of their child’s positive status [3].

(3) In addition, section 143C, subsection 1 of the Victorian Act provides for a large number of non-medical exemptions to the vaccination requirement for certain disadvantaged groups, notwithstanding that under subsection 2 a childcare service must take reasonable steps to ensure that an immunisation status certificate in relation to the child is provided by a parent of the child.  However, it would appear that if the parent fails to provide this within the 16 weeks, there is no provision for non-compliance which would authorise the childcare service to exclude the child, and no penalty for the childcare service failing to do so.  It was estimated by Ms Wooldridge MLC during second reading debate that these exemptions may amount to 70,000 children [4].  For comparison, at the end of 2015, vaccination objections were registered for only 6441 all-age Victorian children [5].

7.Applying for Legal Aid

Queensland 

Legal Aid Queensland

Phone: 1300 651 188

Please ensure that you make clear to the inquiries officer that your complaint is under the Disability Discrimination Act 1992 (Cth), and subsequently, the Australian Human Rights Commission Act 1986 (Cth) in the event your complaint is not conciliated satisfactorily, and you choose to commence proceedings in the Federal Court.  To my knowledge, there are no grounds to make a complaint of discrimination under the Anti-Discrimination Act 1991 (Qld).  In addition, be sure to ask if funding for test cases is available.

Victoria

Legal Aid Victoria

Phone: 1300 792 387

Please ensure that you make clear to the inquiries officer that your complaint is under the Disability Discrimination Act 1992 (Cth), and subsequently, the Australian Human Rights Commission Act 1986 (Cth) in the event your complaint is not conciliated satisfactorily, and you choose to commence proceedings in the Federal Court.  To my knowledge, there are no grounds to make a complaint of discrimination under the Equal Opportunity Act 2010 (Vic). In addition, be sure to ask if funding for test cases is available.

Federal

The Attorney-General’s Department administers a range of statutory and non-statutory legal financial assistance schemes. Each scheme has a different purpose, but all schemes are targeted towards helping people who could not otherwise afford to pay for their legal costs.

Commonwealth Legal Financial Assistance

Phone: 1800 117 995

Please ensure that you make clear to the inquiries officer that your complaint is under the Disability Discrimination Act 1992 (Cth), and subsequently, the Australian Human Rights Commission Act 1986 (Cth) in the event your complaint is not conciliated satisfactorily, and you choose to commence proceedings in the Federal Court. In addition, be sure to ask if funding for test cases is available.

8. 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

[2] Disability Discrimination Regulations 1996

https://www.legislation.gov.au/Details/F2012C00527/Html/Text#_Toc331768859

[3] (Hepatitis B, Do I have to tell the school/day care that my child has hepatitis B?, The Sydney Children’s Hospital Network)

http://www.schn.health.nsw.gov.au/parents-and-carers/fact-sheets/hepatitis-b

[4] Hansard, Victorian Parliament, page 76
https://avn.org.au/wp-content/uploads/2016/04/Hansard-Vic-No-Jab-No-Play.pdf

 [5] ACIR – State and Territory Vaccine Objection (Conscientious Objection) Data

http://www.immunise.health.gov.au/internet/immunise/publishing.nsf/Content/acir-s-t-cons-objection-data.htm

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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