PUBLIC HEALTH AMENDMENT (IMMUNISATION REQUIREMENTS FOR ENROLMENT) BILL 2019

Second Reading

Resumed from 12 June.

HON ALISON XAMON (North Metropolitan) [12.24 pm]: I rise to continue the comments I commenced yesterday in the Greens’ response to this legislation. To briefly recap, I confirm that the Greens absolutely support increasing public rates of vaccination because we recognise that vaccination works and a herd immunity of 95 per cent is considered to be optimal, and we need to implement public health measures to achieve that outcome. However, the Greens still have considerable concerns about the nature of this type of legislation—whether it will achieve the stated outcome and whether there will potentially be unforeseen and adverse consequences as a result of proceeding with it.

For members’ recollection, I also expressed my deep concern about the way I feel debate on this legislation— I think it is really important and it is critical that we are not afraid to analyse it—has effectively been hijacked by an unhelpful debate by some who have tried to persuade all members in this place that vaccinations do not work and that it is all just part of a larger conspiracy by big pharma. I also outlined how unhelpful that has been in progressing this issue. At the same time, we have also heard from a number of people within the community who have, I think, some very legitimate and important concerns about how this will impact on us as a community, and on their children. I am really concerned that their voices have effectively been drowned out and sidelined because we have not been able to have a sensible discussion around this matter. Nevertheless, I will stand here fearlessly and try to unpick my concerns around this legislation. I remind members that if anyone wishes to falsely portray me in this place or anywhere else as anti-vaccination, it would be a lie. Certainly if they say that in this place, they will be misleading Parliament. I wanted to make sure I recapped those fundamental points for the record.

One of the other things I had been talking about was where this legislation sits within the overall national framework. As I have already stipulated, this has come out of a Council of Australian Governments agreement, but it is not uniform legislation as such. We are already seeing that states implementing these regimes have different approaches. As I said, Victoria and New South Wales legislation is similar to the legislation before us, but Queensland’s legislation does not go as far. Queensland has made the decision that rather than taking a blanket approach of banning unvaccinated children from early childhood education opportunities, they have given providers the power to refuse enrolments of unvaccinated children if that is the will of those providers. I had also started to note that South Australia is undertaking a process similar to the Western Australian approach. Broadly speaking, I am acknowledging that for the states that are embarking on this regime, there is a general effort to have some sort of similar policy approach—but they are by no means identical. The hope of the people who have put this forward is that this Public Health Amendment (Immunisation Requirements for Enrolment) Bill will build on the elements of no jab, no pay legislation. I understand that the public policy outcome being sought is to ensure that there is a trigger for vaccine hesitaters, or even straight-out disorganised parents, to embark on vaccination regimes for their children and to ensure their vaccination regimes are up to date.

I acknowledge also that the bill is intended to send out a very clear signal to the community that protecting people from vaccine-preventable diseases is a shared community responsibility. I agree with that sentiment, especially given, as has already been articulated by people previously, some children simply cannot be vaccinated. I therefore understand that from a public policy perspective, we want to send a clear message to people who can vaccinate, to please make sure that their child is part of that herd immunity. I understand that is for the wellbeing of not just that particular child, but all children. I concur with that policy intent and sentiment. My concern is that when we compare the data on vaccination rates from the time the no jab, no pay policy was introduced at the beginning of 2015 with the data for 2018—nearly three years after the legislation came into the effect—it is not readily apparent that those states with the additional no jab, no pay legislation have made greater advances in vaccination rates than those that do not have that legislation. The data does not bear that out. In fact, there has been an improvement in vaccination rates across the board in all states. The no jab, no pay legislation may have had an effect. However, it is important to realise that on an evidence-based approach, the jury is still out. In essence, the concern is that we have already captured the people who might be motivated to vaccinate their child because of financial imperative, and the jury is still out on whether this additional no jab, no play measure will provide any additional effect. The briefers on this bill were very helpful. They have been quite diligent in trying to convey as much information as they can. As they rightly pointed out to me, there may be any number of explanations for why vaccination rates have increased around the country. The reality is that it is a very blunt measure, and in many ways it is simply too early to tell what the real impacts have been. I accept all these points. However, in the absence of any other evidence, it seems that all we have to go on at the moment is that there has been no palpable increase in vaccination rates in those states in which no jab, no play has been implemented. It is important to note that.

The no jab, no play regime differs from the no jab, no pay regime, because that was about people’s access to money. The Greens also have a concern about that regime. A lot can be said about how that impacts disproportionately on some parts of the community compared with others and all that sort of thing. However, I do not need to revisit that debate, because that is not a debate for me to have. That debate has been had. That has been decided. That is in place. It is what it is. The reason that it is important to differentiate that strategy from no jab, no play is that it is about competing rights. That is the crux of the problem we face in trying to figure out a way forward in tackling this legislation. I say that notwithstanding our well-established support of vaccination. I note that in the contributions that have been made in this place, I did not hear one single member say that they do not believe that vaccination works. I say that for the benefit of people who are listening to this debate, and particularly for those people who have been sending me abuse and think that somehow I am unilaterally able to change the will of this Parliament. That has been incredibly unhelpful, and it will not help us to get anywhere when we start to look at who should be exempt and how we can make that happen in practice.

As I have said, it is my understanding that not one single member in either this upper house or the other place believes that vaccination does not work. I want to stress that. However, notwithstanding that, we must not shy away from the fact that if this bill is passed, it may set a precedent in our state for the use of coercive health measures. That is a very grave concern. Hon Aaron Stonehouse raised some very good points about the risk of introducing coercive health measures as a way to achieve public health outcomes. I share many of those concerns. The bill is an attempt to straddle the line between the right to public health—which we certainly should frame in terms of a right—and the right to access early childhood education. I suspect that everybody in this place recognises that early childhood education is critically important in determining the wellbeing of children and their life paths. However, I am not convinced that we have yet got that balance right. I suspect that whether we get that balance right will come down to what the exemptions look like. As I have said, it is important to encourage people who are likely to vaccinate but are disorganised. However, we also need to recognise that a number of people should be given the opportunity to be exempt from this legislation.

We know from both national and international evidence that access to early childhood education is essential. My concern is that we do not have evidence that the implementation of no jab, no play—which will potentially put at risk access to early childhood education—will have the stated effect of increasing vaccination rates. The Greens strongly support universal access to kindergarten in the year before school. The Greens also strongly support ensuring that our early childhood educators and staff in childcare centres are well educated and well paid to be able to implement positive early education programs. In this context, we welcome the proposed wide range of exemptions, because hopefully that will enable a number of children from priority communities to sit outside this legislation. I am aware that there is much debate around that and that we will need to tease that out in committee. I make it very clear that the Greens support the exemptions that were articulated in the original legislation. However, I am genuinely concerned that people whose children fall outside the exempted categories and who firmly oppose vaccination will become even more entrenched in their opposition and have their children excluded from education.

I want to quote Dr David Isaacs, a clinical professor in paediatric infectious diseases. He made the point when the federal no jab, no pay legislation was being considered that, in his view —

... all you’ll do through this policy is alienate anti-vaxxers more and then you’ll have a resentful group of suspicious people less likely to listen to government advice.”

I remind members that those comments are from a man who is at the forefront of vaccination research and implementation and could not be a greater proponent of vaccination. These are the sorts of concerns that are being raised.

A 2015 national estimate suggests that 1.3 per cent of children will need to have alternative educational arrangements made for them. Again, in weighing up the balance between these competing rights, I reiterate that the real concern to me is that it is difficult to source evidence indicating that the bill is likely to increase immunisation coverage to warrant it, especially as the federal government’s no jab, no pay scheme is already in place for children attending child care.

Many public health experts who specialise in increasing immunisation rates and the Royal College of Physicians do not support this type of legislation. They maintain that any small rise in the number of children being vaccinated as a result of this legislation—as I say, we are yet to see whether that will occur—is outweighed by the potential costs. We are risking a child missing out on education opportunities and having their exposure to socialisation restricted because of their parent’s decision. I also need to acknowledge that the Australian Medical Association in WA is strongly in support of this bill and is eager to see it passed as soon as possible. I do not want to be selective about my feedback. I recognise that there are two different views on this.

I am concerned about a lack of detail in the bill, and I will go through a few particular parts that are of concern to me. This bill provides that the burden of responsibility for verifying immunisation status lies with the childcare centre or the school. I note that although many may already collect this information and have processes in places, this bill is introducing an additional requirement for the centre or school to take reasonable steps to secure this information. It is not clear at this stage what is meant by “reasonable steps”, only that it would depend on context. I accept that, to some extent, this detail is probably best dealt with in the regulations, but as the bill is also introducing a financial penalty for noncompliance, which is a significant move from how the current system operates, I think it is an important issue to raise. A person in charge of a school community may be fined up to $10 000 if it turns out that an unimmunised child is involved at their school. It is my understanding that this penalty is higher than the penalty a principal would incur if they knowingly employed an unregistered teacher, so I wonder about the proportion of that sort of penalty. I am pretty sure that principals and people in charge of childcare centres would appreciate some explicit direction on exactly what reasonable steps are required, given that they will be personally liable.

The administrative burden is likely to be disproportionately higher for childcare centres and kindergartens with high numbers of disadvantaged children within their enrolments. To be effective, this legislation needs to also be accompanied by measures to ensure that particularly disadvantaged families are adequately supported to get their children immunised. Similarly, the process for obtaining medical exemptions has not yet been established. Apparently, it is intended that all exemptions will have to be signed off by the Chief Medical Officer, but we do not yet know what the interface between the parents and the Chief Medical Officer will be. We really have no understanding of how onerous or otherwise this process might prove to be for parents who need, and seek, an exemption. Again, understanding what this process is likely to look like is incredibly important in knowing how this bill will likely impact on parents and children and how this may play out with unintended consequences.

During the briefing, I also sought clarification about a review process in the event that an enrolment is refused. The briefing officers advised that the responsible person would be able to apply to the regional office for the review. I ask the minister to confirm whether people will indeed be able to go to the regional office if they seek a review of the decision of the reasonable officer. I also foreshadow that during debate on one of the proposed amendments in Committee of the Whole House we will look at the broader issue of how people can appeal exemptions.

I want to make some comments about the discussion paper. Prior to the introduction of the legislation, the Department of Health released a discussion paper to seek feedback, to quote the website —

... from the early education and care industry, schools, government, parents and other stakeholders to determine the most effective option for achieving improved childhood immunisation rates in WA.

That is effectively what that was about. I note that the findings of the consultation have not yet been written up, which is interesting given that it was meant to help inform the way forward. It seems from the outset that the path had already been committed to regardless of this discussion paper process. I did, however, ask at the briefing what was the outcome of that discussion process, and I heard that 540 responses were received and that the preliminary themes and concerns that were raised were about limiting access to education, the removal of choice, vaccine safety, implementation challenges, marginalisation of certain sections of the community and the integrity of immunisation records. Because we have yet to see the report on the discussion paper, it is difficult to conclude the basis of the government’s decision to proceed with this particular approach.

As I have said, I have also been inundated with correspondence from people who are concerned about this legislation and who have a broad range of concerns. I note that their leaders are echoing the concerns raised during the consultation process. As I say, members, I find some of the arguments quite compelling. For example, registered nurses have written to me who are supportive of vaccination in general but whose children have had adverse reactions to a particular vaccine. They want the choice not to give that particular vaccine to their child again, yet those children may not qualify for a medical exemption under this legislation. It is really important to note this, because these parents are not anti-vaxxers. They are displaying a genuine concern for the wellbeing of their child, yet if they choose not to continue vaccinating their child or to engage in selective vaccination, they will not be able to access formal child care or kindergarten, which will affect their ability to participate in the workforce or potentially feed their family. It will also potentially have an enormously adverse impact on their child in not being able to access early education. They then may choose an informal arrangement with other people who do not vaccinate their children. Members need to be realistic about the fact that that is likely to be an outcome— people will get together and put in place their own informal babysitting clubs, if you like. I suggest that their children would then be at even greater risk of disease, because there would be no herd immunity whatsoever. It is an invidious position to put a parent and their child in. I have sympathy for these people who are raising these kinds of issues, particularly those who are raising them in a very sensible way.

I will talk a little bit about my experience. Members know that I have three fabulous children. Although all my children are fully immunised and, indeed, are immunised beyond the stipulated vaccination regime because they have travelled in Asia—they had to have all the weird and wonderful vaccinations that people who travel overseas require—their path to this status was achieved outside the standard schedule for me because of various advice that I received and also health conditions, yet I am not quite sure that I would have been entitled to one of those exemptions. My gorgeous, stunning daughter, who is now 23 years old, was five pounds and eight ounces when she was born. She was very little; I am little. But, she was very little when she was born in hospital. Unfortunately, when she was five days old, I found out that she had contracted golden staph. She was tiny. She was in intensive care and we did not know whether she was going to live. It was a very frightening time. I thank Princess Margaret Hospital for Children for saving my daughter’s life and thank God that we now have the drugs available to save children’s lives. At the time, my grandmother was distraught beyond belief because she associated babies who contracted golden staph with them inevitably dying. It was wonderful that my daughter lived and she is fine, but it completely wiped out her immune system. Even though I did everything I was supposed to do as a mother to try to raise her immune system, unfortunately, it meant that for the first two and a half years of her life, it was compromised as a result. She had colds and earaches and all the things that happen to kids who catch everything all the time. I was told that the best thing for me to do would be to hold off on vaccinating her for quite some time, until I felt that she was potentially going to be strong enough to be able to undertake the vaccination regime. At the time, a regime had been introduced whereby I needed to verify her vaccination status. She was not vaccinated at that stage, so I had to fill out a conscientious objector form. I was not actually a conscientious objector, but I was not able to vaccinate her, on the advice given by doctors. I do not think that that would have been enough to constitute an exemption in terms of the exemptions that are foreseen in this bill. I also note that somewhere in the mystical records I am down as a conscientious objector, yet that is not actually what I am and is not how I define myself, but that was the option open to me.

My third child was a gorgeous, little, chubby buggerlugs, but, unfortunately, he was not able to get the vaccinations during the early parts of the regime because, most of the time, when the vaccination schedule came around, he had a cold or something like that. The one thing that we know is that we are not supposed to give kids vaccinations when they are unwell. The case was that I had to do a catch-up with him. This mean that somewhere out in the records—I question the integrity of these records—it looks like he is partially vaccinated, but he is not; he is fully vaccinated plus some. He is about to get the Gardasil vaccination as well, which is really good that that can happen.

I suspect that the rates of vaccination for some parents are very different from what has been recorded within the system. I just used my example of three kids who were fully vaccinated, but the records did not indicate that. I am down as a conscientious objector, but I am actually not one. This was the situation I was in. I know that I am not alone in that. A number of parents have indicated that, like me, they have every intention of ensuring that their kids will be fully vaccinated, but they want to be what I term “vaccine variators”. They want to make sure that the vaccinations are done when their children are well and at an age-appropriate time, and this legislation does not take that into account. The legislation is trying to get those people who are disorganised or a little bit hopeless, and let us be clear, it is also trying to punish those people who refuse to accept the science of vaccinations. What it is not doing is allowing flexibility for those parents who might have a more comprehensive understanding of the health of their child at a particular time than some faceless bureaucrat. This is just a fact, and I am really concerned about it.

I think the bill is also reliant on the integrity of the Australian immunisation records, which are dodgy. I am able to produce paper records of all three of my children’s vaccinations. I can give them to their schools now, because I still have two children in school, and it is there. I can supply it to anyone who is interested, but I know for a fact that it is not reflected on the electronic record. I think it is a problem for parents to rely on doctors who might not have their paperwork up to date or have a bit of a backlog, and there is a whole range of other things that I will talk about in a moment as well. There are lots of reasons why I think that an electronic record cannot be relied on, particularly when we are talking about excluding children from early education. In introducing a coercive measure, we need to be assured of the reliability of this data that is informing a decision to exclude a child from early education or child care, and I have not been assured about the ease of compliance, particularly given my own experience of the register not being a complete and accurate record of my own children’s immunisation status.

We also know that one of the biggest cohorts recorded as under-vaccinated are people who have immigrated to Australia. This does not necessarily mean that they are not up to date, but it does mean that we do not have their records, so I am wondering how we are going to address that. Will we make the assumption that if a person does not have a record, they are not vaccinated and therefore they need to be excluded?

I note that one of the arguments made in the second reading speech is that vaccinations in the Australian childhood immunisation schedule are free under the national immunisation program, but the briefers were not able to provide me with any sort of assurance that it is or will become free for vaccinations outside the scheduled times—that is, catch-up programs for children who were too unwell to be vaccinated at the scheduled time. It is certainly my experience, and the experience of parents within my office, that I ended up being hundreds of dollars out of pocket, which I was prepared to pay because I am pro-vaccination and I wanted my children to be fully vaccinated, during the catch-up schedules for my children. So when people tell me it is free, I want to know, please, where I can go to get a refund for the hundreds of dollars that I paid to ensure that my children are fully vaccinated.

In summary, vaccination is a deeply polarising issue in our community. The debate levelled around vaccination has been overly simplified. Of course, like any other area of public health policy that relates to behavioural change, there needs to be nuance, and the power is understanding the drivers of behaviour and making sure that we respond accordingly. Associate Professor Julie Leask and Hal Willaby from the School of Public Health at the University of Sydney cogently summed up these issues in an article written for The Conversation when the no jab, no play legislation was being considered in New South Wales. They said —

The proposed legislation seeks to reduce the risk of a vaccine-preventable disease outbreak. But it may actually increase the risk by corralling unvaccinated children together where an outbreak of a disease such as measles could spread much more rapidly. This is effectively punishing children for their parents’ decision.

Systematically enforced universal record checks of children’s vaccination status serves to remind late parents nearly as well as bans would, while allowing the children to participate in society without further disadvantage.

As for the parents who actively decline vaccines, they do so out of a desire to do the right thing by their children. These parents may be genuinely misguided about vaccination, but they are not wilfully selfish. For them—and the vaccine-hesitant parents—listening, respectful communication, and quality information are more likely to win them over than castigation and coercion.

I think that is important feedback and I think it is something that we need to contemplate. I would add that we need to have in place a range of public health measures that I do not believe we are currently adequately undertaking around vaccination. We need to ensure that vaccinations are always free, particularly for any child under 18. We need to make vaccinations as accessible as possible; for example, I went to try to have my sons aged 16 and 13 vaccinated for the flu. I was able to go to a chemist to have it done, but I was told that I would have to make a doctor’s appointment—even though my sons are bigger than me—go all the way to Glen Forrest, spend time there, get their vaccinations, hang around and then come back. I just want to be able to take them to the local chemist to get their vaccinations, just like I could. I know that is not part of the childhood schedule, but I am talking about making vaccinations as easily accessible as possible. We need to do something about the records and make it easier to ensure that those records are accurate and kept up to date. I would love to be able to hand over the paper records I have and have them put in the electronic national immunisation register, but this is not available to me because that option will not be undertaken. I think we need to do more around education. I applaud those parents in Fremantle who worked really hard to not only talk about how they support natural birth and a whole range of things, but also make the point that they vaccinate their children and are prepared to do that. Those are my concerns.

Comments and speeches from various members

Committee interrupted, pursuant to standing orders.

 

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