This speech was delivered on 20 June 2013 in the NSW Upper House. You can read the full debate online here.
PUBLIC HEALTH AMENDMENT (VACCINATION OF CHILDREN ATTENDING CHILD CARE FACILITIES) BILL 2013
In Committee
Mr DAVID SHOEBRIDGE [10.36 a.m.]: I have been listening to this debate and I have generally appreciated the exchange of views and issues that have been raised by the Government Whip and the Parliamentary Secretary about whether or not preventing someone who may in the future have a disability in the form of a disease could amount to disability discrimination for the purposes of the Federal Act. I can see an argument where that could be said. The important issue that I have not heard canvassed is a key provision in the Commonwealth Act, which is section 48. In relation to infectious diseases and whether all of the matters for which anyone would receive inoculation or vaccination would fall within the definition of an infectious disease, section 48 states:
- 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.
That is the key provision in the Disability Discrimination Act. Even if that provision was not there—and perhaps a legal argument could be advanced that it does not have a full flow-on effect to the whole of the Disability Discrimination Act, upon which I would like to hear the Government’s view—we then have to confront the issue of what would happen if we passed a law that was read to be in breach of a provision of the Federal Disability Discrimination Act.
A New South Wales law would be of no effect only to the extent that it conflicted with the provision of the Federal Disability Discrimination Act. If someone can mount an argument that that doctrine does not apply to this type of law, if someone can mount an argument to suggest that this legislation would be a breach of the Federal Disability Discrimination Act, which would be very difficult, the worst that would happen is that this part of the proposed New South Wales Act, this amendment, would be read down and would be of no effect. One would then hope that we would get some law reform at a Commonwealth level that clearly would exempt this type of action—standing up for public health to deal with infectious diseases—and make it abundantly clear that the provision that I have just read, section 48 of the Commonwealth Disability Discrimination Act, would cover and exempt any action this State took to protect people from infectious diseases.
It cannot be the case, based on other actions we take. We isolate people in certain circumstances. Public health officials have the power, if there is an appallingly infectious disease in our society, to isolate people and discriminate against them on the basis that they have an infectious disease. If someone came into New South Wales with the Ebola virus our public health officials could isolate them and prevent them from going to, amongst other places, childcare centres or on the streets. We already have the power for public health officials to discriminate against people for good and proper reasons if they have a deadly, infectious disease. I have never heard an argument that the Federal Disability Discrimination Act stopped actions in support of public health. Yet the argument is now made that it can be applied when dealing with unvaccinated children in childcare centres.
Mr DAVID SHOEBRIDGE: I note the interjection from the Government Whip. “Disease” is defined in the Act to be not only a disease that you do have but which you have the possibility of gaining in the future. I could read onto the record the definition of “disease”, if you like.
Mr DAVID SHOEBRIDGE: It includes both having a current disease or disability and the possibility of obtaining a disease or disability in the future. I would like to hear the Government’s response about that clear exemption in section 48. I would like to hear also the Government’s response to the fact that other public health actions are legitimate and lawful. I gave the rather extreme example of someone walking down George Street with Ebola virus. We have the power to discriminate against that person for quite proper and lawful public health reasons and remove him or her from the public. That is no less discriminatory; in fact, it is a far more overt intervention in a person’s rights and liberties than to permit a childcare centre to elect not to accept children who are unvaccinated.
Mr DAVID SHOEBRIDGE [11.00 a.m.]: The last point that was raised by the Hon. Matthew Mason-Cox suggests that allowing a childcare centre discretion to develop a policy is putting it in an uncertain situation. I suggest the opposite will occur. This amendment is about allowing childcare centres the opportunity to develop a policy or not in relation to the bill. It is about giving them choice. I had always understood that the philosophy of the Liberal Party was about giving people choice and allowing them to make informed decisions and develop that policy.
Mr DAVID SHOEBRIDGE: There is a philosophical element to what the Hon. Matthew Mason-Cox raised, which is a law that allows choice creates uncertainty when it comes to public health. The opposing philosophical point is to introduce laws that allow for choice. The second point is the argument that I have heard, perhaps not in contributions in the House but during discussions concerning the bill, concerning a town that has only one childcare centre that adopts a policy of vaccinated children only. The question is: Would that not be terribly unfair to the unvaccinated children in that town who do not have another option? It would be unfortunate for the children but the most unfortunate matter is that they are not vaccinated which is probably the greatest misfortune the child will suffer.
Child care is not compulsory and if a parent chooses not to vaccinate their child that comes with obligations, which include caring for the child during hours where otherwise that child could be mixing with other children at a childcare centre. If as a parent you choose not to vaccinate your child you accept the consequences of that decision and look after your child. It would occur in a minority of situations where there is only one childcare centre in a particular town. The other option is to travel however long is required to go to another childcare centre because as a parent you have made the choice not to vaccinate your child and leave your child as a public health population risk.
I appreciate the manner in which the Hon. Melinda Pavey and the Government have engaged on this issue, but I do not have a great deal of appreciation for the relatively flippant level of legal advice that has been provided to the Parliament on what is a really difficult issue. I would have thought that this debate would benefit from a short adjournment so that more considered legal advice could be obtained from the Attorney General about matters that have come to a head only in the recent past. The clear and absolute defence in schedule 1 [4], section 87 and the actions by Government to take steps that are reasonably necessary to protect public health one can only hope would be arguable in a court on the merits.
Mr DAVID SHOEBRIDGE: I note that interjection.