"No Jab, No Play" Legislation Policy Paper

1. This document sets out the policy position of Liberty Victoria on the “No Jab, No Play” provisions in Victoria. The provisions are found in the Public Health and Wellbeing Amendment (No Jab, No Play) Act 2015 (the Act) and will take effect on 1 January 2016. They will exclude preschool children from childcare or Kindergarten facilities unless they are up to date with the Commonwealth’s prescribed vaccination schedule.  Exemption on medical grounds is allowed but not exemption on the basis of conscientious objection.
2. The subject matter is approached from a human rights and ethical point of view.   However, as is clear from the analysis in the policy paper in order to engage the question of necessity and proportionality of the relevant provisions, we must rely on the views of medical professionals and public health experts.  We do so with the acknowledgment that we are not medical professionals or public health experts and that, within the vaccination debate, there may not be consensus among experts within the field on the matters addressed by this paper. 
3. The “no jab, no play” policy in Victoria is to be contrasted with the position in New South Wales (NSW), which has been called a “no form, no play” policy.  The NSW provisions provide for the exclusion of children from childcare facilities if they are not up to date with their vaccinations but allow for exemptions on medical grounds or refusals based on conscientious objection. 
4. Underlying the views expressed below are three basic assumptions.  The first is that childhood vaccinations are generally safe and that the health benefits of vaccinating children greatly outweighs the risks.  Therefore, it is worthwhile to vaccinate children.[1]  The second assumption is that governments have an obligation to protect the public’s health and welfare and that vaccination is not only an important means of protecting individuals but also the community.  The reason for this is that the full benefits of a vaccination program will exceed the benefits for participating individuals due to the effect of herd immunity. Therefore, it might be said that collective vaccination programs serve the public interest.  An ideal level of childhood vaccination would be about 95%.  The third assumption is that individual human beings are not just “members of the public,” but first and foremost are persons whose rights should be respected by both government and public health professionals.  In the context of the relationship between parents and young children, this translates into an assumption that the autonomy of parents to make decisions regarding their young children’s health should be respected, unless such decisions represent an immediate and serious threat to the wellbeing of the child.  Clearly, assumptions two and three run into conflict within the vaccination debate.[2]
5. This paper proposes a solution to the conflict from a human rights and civil liberties perspective.  Liberty Victoria concludes that the “no form, no play” policy of NSW is preferable to the “no jab, no play” policy in Victoria.  There are two main reasons for adopting this position. First, in accordance with accepted principles in human rights law, the Victorian policy cannot be justified as a necessary and proportionate limitation on a child’s right to education. Second, the policy cannot be justified from an ethical point of view.  Although an adult’s decision not to vaccinate a child under their care may be unethical, such a decision does not justify a policy that sacrifices the interests of the child.

[1]               Evidence of Prof Del Mar before the Health and Community Services Committee of the Queensland Government, Public Hearing – Inquiry into the Public Health (Exclusion of Unvaccinated Children from Child Care) Amendment Bill 2013, 19 August 2013, 11.

[2]               Marcel Verwij and Angus Dawon ‘Ethical principles for collective immunisation programmes’ Vaccine 22 (2004) 3122-3126.   Available online at www.sceincedirect.com.au.