From 7 August 2020, providers of early childhood services must not enrol a child in, or provide a child with, early childhood services if that child does not meet immunisation requirements [South Australian Public Health Act 2011 (SA) Part 12A].

Early childhood services

An early childhood service is a service for the education or care (or both) of a child under the age of 6 years [s 96A]. This includes childcare, family day care, preschool, occasional care, kindergarten and early learning centre services.

Early childhood services do not include [s 96A]:

Enrolment [s 96BA]

A person who provides an early childhood service must not enrol a child for the provision of the service unless:

Section 96B(1) requires the parent or guardian of a child who is enrolled in, or attends, an early childhood service to provide their child's immunisation records to the service provider in accordance with the requirements of the Chief Public Health Officer.

A child will meet the immunisation requirements if the child meets the immunisation requirements within the meaning of the A New Tax System (Family Assistance) Act 1999 (Cth) (subject to any prescribed modifications) [s 96A(2)].

It is an offence for a service provider to enrol a child who does not meet the requirements of s 96BA of the South Australian Public Health Act 2011 (SA), with a maximum penalty of a fine of $30,000 fine.

A service provider is entitled to rely in good faith on immunisation records provided in accordance with s 96B(1) that indicate that a child meets immunisation requirements [s 96BA(2)].

Providing early childhood services [s 96BB

It is an offence for a person to provide an early childhood service for a child unless:

A breach of this section carries a maximum penalty of a $30,000 fine.

A service provider is entitled to rely in good faith on immunisation records provided in accordance with s 96B(1) that indicate that a child meets immunisation requirements [s 96BB(2)].

Exemptions

The Chief Public Health Officer may provide a written exemption to one or more of the requirements in Part 12A [South Australian Public Health Act 2011 (SA) s 96E].

It is an offence to contravene, or fail to comply with, a condition of an exemption, with a maximum penalty of $30,000.

For further information on immunisation requirements and when an exemption may apply, visit the SA Health website.

Child Care Subsidy – Centrelink

A New Tax System (Family Assistance) Act 1999 (Cth) provides that a person is not eligible to receive the Child Care Subsidy in relation to a child who does not meet the immunisation requirements [ss 6, 85BA].

A child can ‘meet the immunisation requirements’ through certain exemptions under this Act – both for the purposes of the Child Care Subsidy and the South Australian Public Health Act 2011 (SA). The exemptions include [s 6]:

An exemption due to medical contraindication is quite limited and is not subject to the broad discretion of the medical professional (see, for example, Huikeshoven v Secretary, Department of Education, Skills and Employment [No 2] [2022] FCA 1021].

In South Australia, children who do not ‘meet the immunisation requirements’ [as defined in A New Tax System (Family Assistance) Act 1999 (Cth)] are not eligible to attend early childhood services. However, some children who receive an exemption from the South Australian Chief Public Health Officer may be eligible to attend early childhood services (under South Australian law) but still remain ineligible to receive the Child Care Subsidy (under the Commonwealth law) [South Australian Public Health Act 2011 s 96E].