The South Australian Public Health (Early Childhood Services and Immunisation) Amendment Act 2020 commenced on 7 August 2020.

The amending Act has inserted new provisions (Part 12A) to the South Australian Public Health Act 2011 (SA), to prohibit enrolment and providing early childhood services where immunisation requirements not met.

The parent or legal guardian must supply the early childhood service with the approved immunisation records for their child.

Definition of early childhood services

Childcare, family day care, pre-school, occasional care, kindergarten and early learning centre services are an early childhood service for the purposes of the Act.

Section 96A of the Act defines an early childhood service as a service for the education or care (or both) of a child under the age of 6 years, excluding the following services:

Enrolment

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

Section 96B(1) of the South Australian Public Health Act 2011 (SA) states that he parent or guardian of a child that is enrolled, or attends at premises for the purposes of the provision of an early childhood service, must provide immunisation records relating to the child to the provider of the service 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 of the Commonwealth (subject to any prescribed modifications).

The maximum penalty is a $30 000 fine for a person who breaches the prohibition.

It is however a defence to a charge of an offence under this section relating to the enrolment of a child to prove that the defendant relied in good faith on immunisation records (or purported immunisation records) provided to the defendant in accordance with section 96B(1) indicating that the immunisation status of the child was up to date.

Providing early childhood services

A person must also not provide an early childhood service for a child unless:

The maximum penalty is a $30 000 fine for a person who is found to breach this prohibition.

It is a defence to a charge of an offence under this section relating to a child to prove that the defendant relied in good faith on immunisation records (or purported immunisation records) provided to the defendant in accordance with section 96B(1) indicating that the immunisation status of the child was up to date.

Exemptions

Section 96E of the South Australian Public Health Act 2011 (SA), provides the Chief Public Health Officer with discretionary powers to provide written exemptions to the above prohibitions, and can revoke or vary such exemptions.

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

Please visit the SA Health website here for further information on immunisation requirements and when an exemption may apply [link opens in a new window].

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 [see above]. 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].