Family Assistance (Immunisation Principles and Vaccination Schedules) (DSS) Determination 2018

The central concept is the “usual immunisation requirements”, defined in the Act as meeting the immunisation requirements by reason of subsections 6(2) through 6(5). Those subsections cover vaccination according to schedule, medical contraindication, natural immunity, and participation in a vaccine study. The Determination does not rewrite those grounds; it adds a further path via subsection 6(6) determinations. The “standard vaccination schedule” is the primary benchmark. Section 15 creates a table linking the child’s date of birth to one of five schedules (Schedules 1 through 5) set out in the instrument. The schedules themselves are not reproduced in the text provided, but the instrument incorporates them by reference. A child must receive each antigen or disease listed in the relevant schedule no later than one month after reaching the specified age. If the vaccine is administered in Australia, it must be given by a recognised immunisation provider and use a vaccine registered on the Australian Register of Therapeutic Goods. The “catch‑up vaccination schedule” is the fallback for children who have fallen behind. Rather than a fixed table, section 16 defines it as the schedule determined in accordance with the Australian Immunisation Handbook, which is itself published by the National Health and Medical Research Council and updated from time to time. That Handbook is not reproduced; the instrument links to a URL as at June 2024. The catch‑up schedule is therefore a moving target, updated by an external body without further legislative amendment. Another key concept is the “listed medical practitioner”. Section 8 defines this as a medical practitioner whose name has been given to the Commonwealth Chief Medical Officer by a state or territory Chief Health Officer specifically for the purpose of giving certificates under section 13. This creates a closed class of certifiers, limiting the pool of doctors who can provide medical exemption certificates and potentially reducing access in rural or underserviced areas. “Family violence” is tied to the Family Law Act definition, which is broader than mere physical harm; it includes emotional and psychological abuse. That definition is incorporated directly, so any change to the Family Law Act automatically changes the scope of this exemption. The “permanent humanitarian visa” concept links to the Migration Regulations, again incorporating external law. The Determination also defines “member of the immediate family” for the family violence exemption to include partner, child, parent, grandparent, grandchild or sibling, which is relatively expansive. This means the risk of family violence to a sibling would be sufficient to qualify, even if the child and carer are not directly at risk.

The Determination directly affects four groups. First, families receiving or applying for family tax benefit with children under the age covered by the vaccination schedules. For these individuals, the Determination operates as a condition precedent: if their child is not vaccinated according to the schedule and does not fall within one of the five exemption categories, they lose the FTB Part A supplement (and before 1 July 2018, also child care benefit and child care rebate). The savings provision in section 5 confirms that the earlier 2015 Principles continue to apply for pre‑1 July 2018 sessions of care, so families who had obligations under the old regime remain subject to it for those historical periods. That creates a compliance headache for families who may need to refer back to two different sets of rules depending on the time period. Second, approved child care services are affected indirectly: the saving provision maintained eligibility for child care benefit and rebate against the old Principles for care before 1 July 2018, but after that date the child care subsidy system no longer uses this Determination (the Determination applies only to FTB as per section 6). However, the determination is still relevant for services if they ever needed to verify immunisation for FTB purposes. Third, recognised immunisation providers are affected because the Determination stipulates that only they can administer vaccines for the purpose of meeting the standard schedule (section 15(2)(b)(i)). This excludes GPs who are not recognised immunisation providers, though in practice most are. Fourth, medical practitioners who wish to certify for section 13 exemptions must apply to be listed by their state or territory Chief Health Officer and then have their certificate accepted by the Commonwealth Chief Medical Officer. That adds a bureaucratic step that may discourage doctors from participating, reducing the number of certifiers available to families. Additionally, state and territory child welfare authorities are affected by section 10: if a child is in out‑of‑home care and the carer lacks legal authority to consent, the Secretary can make a determination only if the person with authority has refused or failed to consent. This creates a disincentive for state departments to delay consent, but also places the burden on carers to prove the refusal or failure. Finally, holders of permanent humanitarian visas are affected by section 12: they get a six‑month window from the child’s first entry to Australia during which the Secretary can make a determination, but after that the child must either be vaccinated or fall under another exemption. This is a narrowly targeted and time‑limited concession, not a broad waiver.

The Determination imposes no direct duties on families; it only specifies conditions the Secretary must be satisfied of before making a favourable determination. The Secretary’s duty is set out in section 9: the Secretary may make a determination only if satisfied that the requirements of one of sections 10 to 14 are met. Where the Secretary is satisfied the child is likely to meet the usual immunisation requirements within a particular period, the determination must be made for no longer than that period (section 9(2)). That creates a duty to limit the duration of the exemption. For humanitarian visa holders, the maximum duration is six months after first entry (section 9(3)). If the child later meets the usual immunisation requirements while a determination is in force, the Secretary must revoke the determination (section 9(4)). That revocation duty prevents double counting but also means families cannot rely on an exemption indefinitely once the child becomes vaccinated. The rights are indirect. A family has a right to apply for a determination under section 6(6) of the Act, but the Determination does not create a right to a particular outcome. The five grounds are exhaustive: the Secretary cannot make a determination on other public interest or compassionate grounds. The refusal‑of‑consent ground (section 10) gives a right only to a carer who lacks legal authority; it does not give a parent who refuses consent a right to an exemption. For family violence (section 11), the carer, child or immediate family member must be at risk. This is a protective exemption, not a conscientious objection clause. The medical exemption (section 13) requires a two‑step certification: first by a listed medical practitioner, then agreement by the Commonwealth Chief Medical Officer. The carer has a right to submit the certificate, but no right to compel the Chief Medical Officer to agree. There is no appeal mechanism set out in the Determination; presumably review would be under the Administrative Appeals Tribunal via the Act. Section 13 also includes a non‑exhaustive example: a child with a disruptive behavioural disorder or developmental disorder who reacts with aggression or defiant behaviour. That example suggests the exemption goes beyond purely physical risk to include behavioural risk to the administrator. However, the requirement for the listed medical practitioner to certify “an unacceptable risk of physical harm to the child or a person administering a vaccination” means the harm must be physical, not merely emotional distress. The example treads a fine line: aggressive behaviour can cause physical harm to the administrator. The catch‑up vaccination schedule (section 16) gives a right to a personalised schedule determined by the recognised immunisation provider using the Australian Immunisation Handbook. That is flexible but also uncertain, because the Handbook is updated over time without parliamentary scrutiny.

The Determination itself does not contain penalty provisions. Enforcement is through the Family Assistance Act: if the immunisation requirements are not met, the family loses eligibility for the FTB Part A supplement. The amount at stake for a family can be substantial (hundreds of dollars per child per year). That is the primary penalty. There is also the possibility of overpayment recovery if the family was paid the supplement and later found not to have met the requirements. The Secretary’s power to revoke a determination under section 9(4) also operates as an enforcement mechanism: once a child meets the usual immunisation requirements, the exemption is revoked, so the family cannot continue to rely on it for future payments. If the Secretary makes a determination without proper satisfaction of the grounds, that would be an error of law reviewable on judicial review. The Determination does not create any criminal offences or civil penalties for failure to vaccinate. The only false‑statement risk arises under the Act if a parent makes a false declaration about immunisation status. The Determination does not include a monitoring or inspection power. Compliance is self‑reported by the family when claiming FTB, with verification through the Australian Immunisation Register. The Australian Immunisation Handbook, incorporated by reference for catch‑up schedules, is a living document; non‑compliance with its changing recommendations could theoretically lead to a child being considered not immunised even if they had followed an earlier version. That creates a retrospective effect risk: the Handbook might change the catching‑up schedule after a child has started it, requiring additional doses. Families are not penalised for such changes mid‑course, but a child might miss a new requirement if the provider does not keep up. The enforcement burden falls largely on the family to prove compliance. There is no grandfathering for schedule changes under the Determination, so a child who was fully vaccinated under an old schedule remains fully vaccinated under the standard schedule for their birth cohort. But if they need a catch‑up later, the current Handbook applies. The lack of a grandfathering clause for catch‑up schedule changes is a subtle trap. The only enforcement discretion the Secretary has is the duration of the determination under section 9(2); the Secretary can shorten it if the child is likely to meet usual requirements soon, but cannot lengthen it beyond the limits set.

The Determination is made under the A New Tax System (Family Assistance) Act 1999. It operates entirely within that Act’s framework: it does not create independent obligations. The Family Assistance Act itself interacts with the Australian Immunisation Register (established under other legislation) to verify vaccination. The Determination incorporates by reference several external instruments. The Australian Immunisation Handbook, published by the National Health and Medical Research Council under the National Health and Medical Research Council Act 1992, is given binding legal effect for catch‑up schedules by section 16. That means an update to the Handbook automatically changes the catch‑up obligations under this Determination without any further legislative step. This is a delegation of legislative power to an expert body, but it also means families must rely on providers to know the current Handbook version. The definition of “family violence” uses the Family Law Act 1975 definition (section 4AB). That definition includes physical and sexual abuse, emotional abuse, economic abuse, threatening behaviour, and coercive control. Any amendment to the Family Law Act will automatically flow through to this exemption. Similarly, “permanent humanitarian visa” refers to the Migration Regulations 1994, so changes to visa categories affect eligibility. The Therapeutic Goods Act 1989 is referenced for vaccine registration: only vaccines on the Australian Register of Therapeutic Goods count. This means if a vaccine is temporarily out of stock and an alternative unregistered import is used, it may not satisfy the schedule requirement. The Determination also interacts with state and territory child welfare laws through section 10: the carer must have care under a “State/Territory child welfare law”. That phrase is not defined in the Determination, so its content varies by jurisdiction. The saving provision in section 5 references the Family Assistance Legislation Amendment (Jobs for Families Child Care Package) Act 2017, which revoked the earlier 2015 Principles. That amendment Act is therefore a key piece of legislative history that explains the transition. For practitioners, the interaction with the A New Tax System (Family Assistance) Act 1999 is critical: the Determination only applies to family tax benefit from 1 July 2018 forward for most children. The child care subsidy system now uses a separate set of immunisation requirements under the Child Care Subsidy Act, not this Determination. Therefore, a family with both FTB and child care subsidy may need to satisfy two different sets of rules. The Determination does not harmonise them.

This Determination was made in 2018 and revoked the earlier Family Assistance (Meeting the Immunisation Requirements) Principles 2015. The only amendment history visible in the source text is the inclusion of Note 2 in section 8(1), which states “As of 4 June 2024, the Australian Immunisation Handbook can be found at: https://immunisationhandbook.health.gov.au/”. That note suggests the instrument has been updated at least to June 2024 to reflect the current URL. However, the Determination itself may have been amended at other times; the source text does not provide a full amendment history or the date of the latest compilation. The schedules (Schedule 1 through 5) were presumably updated to include the latest vaccines (Schedule 5 for children born on or after 1 July 2024). The inclusion of a new schedule for children born from July 2024 in section 15(1) indicates an amendment was made to add Schedule 5, likely in mid-2024. That schedule would reflect the most recent National Immunisation Program schedule changes, such as the introduction of new vaccines or changes in age timing. The Determination also references the Australian Immunisation Handbook, which itself is updated regularly (the 2024 URL note suggests the current edition). Because the Determination does not lock the schedule to a specific edition of the Handbook, any future update to the Handbook automatically amends the catch‑up schedule. That is a form of ambulatory amendment without direct parliamentary oversight. The savings provision in section 5 preserves the old 2015 Principles for pre‑1 July 2018 sessions. That means there are effectively two regimes still in force for historical periods. Practitioners dealing with disputes over child care benefit for 2016‑2018 must consult the old Principles. The Determination itself does not amend the Act; it only exercises delegated powers. The legislative history of the primary Act includes the 2017 amending Act that introduced the new immunisation framework and allowed this Determination to be made. The Determination was likely made soon after that amendment came into effect on 1 July 2018. Any further amendments would be through disallowable legislative instruments, but the source does not provide them.

The source text does not cite any cases, and there is no litigation history included. This is not surprising: the Determination is a subordinate instrument, and most challenges would be to decisions made under it rather than to the instrument itself. Potential litigation might include judicial review of a Secretary’s decision to refuse or revoke a determination under section 9. For example, a family might argue that the Secretary was wrong to find that the requirements of section 11 (family violence) were not met, or that the Commonwealth Chief Medical Officer unreasonably refused to agree with a listed medical practitioner’s certificate under section 13. The Determination itself has not been tested in court on its validity, but there is a possibility of challenge on the ground that it exceeds the power delegated by the Act. For instance, the Act permits the determination to set out “decision‑making principles” (section 6(7)), but section 9 of the Determination says the Secretary “may” make a determination only if satisfied of certain requirements. That is arguably a fettering of discretion, but it is consistent with the Act. Another potential challenge is whether the Australian Immunisation Handbook is sufficiently certain to be incorporated by reference, especially given it can change without notice. Cases on incorporation by reference in migration law have upheld such mechanisms, but the balance may differ for welfare conditions. The family violence exemption (section 11) requires a risk that the carer, child or immediate family member “would be subject to family violence”. The standard of proof is not specified. The Secretary must be “satisfied”, but what evidence is required? This may be litigated if a carer provides only anecdotal concerns. The medical exemption example (disruptive behavioural disorder) may be tested if a listed medical practitioner certifies risk of physical harm but the Chief Medical Officer disagrees. The administrative law principle of reasonableness would apply. There are no reported decisions in the source. Practitioners should search for decisions of the Administrative Appeals Tribunal and the Federal Court on the predecessor Principles and on the current Determination to understand how the Secretary’s discretion has been exercised in practice.

Several subtle features of the Determination can trap the unwary. First, the medical exemption requires two separate certifications: a listed medical practitioner certifies, and then the Commonwealth Chief Medical Officer must agree in writing. The list of listed medical practitioners is controlled by state and territory Chief Health Officers, not by the Commonwealth. A family cannot simply get a certificate from their own GP; the GP must be on the list. If the GP is not listed, the certificate is invalid. There is no obligation on states to maintain a sufficient number of listed practitioners. Second, the exemption for refusal of consent (section 10) applies only when a carer lacks legal authority. It does not cover a parent who simply refuses to consent as a matter of principle. Parents who are anti-vaccination cannot use this ground; they must either vaccinate or lose FTB supplement. The family violence exemption is also narrow: it requires that the carer would be subject to violence if they took action to vaccinate. It does not cover emotional distress or minor conflict; it requires a risk of “family violence” as defined in the Family Law Act, which includes coercive control. The threshold is not trivial. Third, the humanitarian visa exemption is time‑limited: six months from the child’s first entry. If the family does not arrange vaccination within that period, and does not qualify for any other exemption, they lose the FTB supplement. There is no extension. Fourth, the determination for a child who is likely to meet usual requirements soon must be limited to the expected period (section 9(2)). This means the Secretary can give a temporary reprieve but must cut it off once the child is vaccinated. Families cannot rely on the exemption for convenience. Fifth, the catch‑up schedule is not a fixed document; it is whatever the Australian Immunisation Handbook says at the time. The Handbook may change the schedule after a child starts catch‑up, requiring additional doses. The family and provider must keep checking the Handbook. Sixth, there is a transition trap for children born between 1 January 2017 and 1 February 2018. Section 14 allows these children to meet the requirements if they received vaccinations according to Schedule 3 (the previous schedule) even if they did not receive Schedule 4 vaccinations for Pneumococcal and Hib. But that only applies if the child has “not received the vaccinations in accordance with Schedule 4”. If the child partially received Schedule 4 vaccinations, the exemption may not apply, leaving the child non‑compliant even if they followed the schedule that was current when they started. This is a narrow window. Seventh, the determination revokes automatically once the child meets usual requirements (section 9(4)). Families who receive a determination may later find themselves deemed non‑compliant if they do not follow up to confirm vaccination status with the Secretary. The Secretary may revoke without notice if information from the Australian Immunisation Register shows the child is now vaccinated. Finally, the instrument applies only to family tax benefit; it does not affect child care subsidy. A family with only child care subsidy may not realise they face a separate set of immunisation rules under a different legislative instrument. The Determination does not cross‑reference that.

Compliance for a family receiving FTB is essentially a matter of ensuring the child is vaccinated according to the standard schedule for their birth cohort, or if behind, following the catch‑up schedule determined by a recognised immunisation provider using the current Australian Immunisation Handbook. The practical steps are: (1) determine the child’s date of birth and identify the correct schedule from section 15 (Schedule 1 through 5). (2) Ensure that for each antigen listed in that schedule, the child receives the vaccine no later than one month after reaching the specified age. (3) Use a recognised immunisation provider and a vaccine registered on the Australian Register of Therapeutic Goods. (4) Record the vaccination on the Australian Immunisation Register to enable verification. (5) If the child cannot be vaccinated for a reason that falls within the five exemptions, apply to the Secretary for a determination under subsection 6(6) of the Act. The application process is not detailed in the Determination; it would be via the Department of Social Services or Services Australia (Centrelink). (6) For a medical exemption, obtain a certificate from a listed medical practitioner and then ensure the Commonwealth Chief Medical Officer agrees. The family cannot control the second step; they must submit the certificate and await the outcome. (7) For family violence, gather evidence (e.g., court orders, police reports, family violence orders) but the Secretary makes the assessment. (8) For children in state care where consent is refused, the carer must show that they lack legal authority and that the person with authority refused. (9) For humanitarian visa holders, act within six months of first entry to either vaccinate or apply for a different exemption. (10) If a determination is granted, note its duration and any condition (e.g., that the child will be vaccinated soon). Ensure that the child is vaccinated before the determination expires, otherwise the family will need to apply again or lose the supplement. The family should also monitor the Australian Immunisation Handbook if the child is on a catch‑up schedule, because the Handbook updates may change the required vaccinations. The provider should check the current Handbook at each visit. For practitioners advising clients, the key is to maintain accurate immunisation records and understand the limited exemptions. The Determination does not provide a grace period for practical delays (e.g., doctor shortage, vaccine shortage). The strict one‑month window from the age mentioned in the schedule means if a child turns 12 months and does not get the MMR vaccine by 13 months, they may be non‑compliant unless they catch up according to the Handbook. That catch‑up must be completed promptly. Families should avoid relying on exemptions that are not obvious; the safest path is vaccination. The Determination imposes no cost for overshooting the schedule (e.g., getting vaccines early is not penalised, though the schedule assumes minimum ages). The only real risk is falling behind or failing to prove an exemption. The compliance burden is moderate but increases when exemptions are involved due to the dual certification requirement for medical exemptions and the lack of a standard application form in the Determination.