What is missing from the discussion is a calm and considered reflection of the human rights of the children at the heart of the controversy.
This week NSW Opposition Leader John Robertson intends to introduce a bill to amend the Public Health Act to allow childcare centres and schools to ban children who have not been vaccinated. Is such a move consistent with the rights of children?
Australia ratified the United Nations Convention on the Rights of the Child well over a decade ago. This means that we have agreed that,
“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”
So when the New South Wales parliament is considering allowing schools and childcare centres to ban a group of children (those who have not been vaccinated), its decision needs to be informed by what is in the best interests of children. Assessing what is in the best interests of children is no easy task, and requires a careful balancing of several factors, the two most important being a child’s right to health and a child’s right to education.
Article 24 of the Convention on the Rights of the Child provides that every child has the right to
“the enjoyment of the highest attainable standard of health.”
The medical evidence indicates that vaccinating children is critical to achieving the highest attainable standard of health. Indeed, the World Health Organisation has stated that:
“Immunisation is a proven tool for controlling and eliminating life-threatening infectious diseases and is estimated to avert between 2 and 3 million deaths each year. It is one of the most cost-effective health investments”.
In addressing concerns about the risks associated with immunising children the World Health Organisation has said:
“Vaccines are very safe. Most vaccine reactions are usually minor and temporary, such as a sore arm or mild fever. Very serious health events are extremely rare and are carefully monitored and investigated. You are far more likely to be seriously injured by a vaccine-preventable disease than by a vaccine. For example, in the case of polio, the disease can cause paralysis, measles can cause encephalitis and blindness, and some vaccine-preventable diseases can even result in death.
While any serious injury or death caused by vaccines is one too many, the benefits of vaccination greatly outweigh the risk, and many, many more injuries and deaths would occur without vaccines.”
Just last month the UN Committee on the Rights of the Child (the body responsible for monitoring countries’ compliance with the Convention on the Rights of the Child) published guidelines on how the right to health should be interpreted and implemented. It emphasised the importance of immunisations and stated that governments:
“should ensure that benefits reach all children who need them”.
While the Committee did not spell out how governments should ensure this, it would be inconsistent with the tenet of the Convention on the Rights of the Child, for governments to endeavour to achieve this goal by punishing parents who decide that their children will not take advantage of the health services provided. Governments should endeavour to ensure that children attain the highest standard of health through encouragement and education, not intimidation and discrimination.
Article 28 of the Convention on the Rights of the Child provides that governments must make education compulsory and freely available to all. The proposed NSW legislation violates this provision by making access to education conditional. As Associate Professor Julie Leask, of the National Centre for Immunisation Research and Surveillance, has observed unvaccinated:
“kids are already disadvantaged by being exposed to illnesses and this legislation would only further disadvantage them.”
We need to make it easier for children to attend childcare centres and preschools, not put up obstacles. We know that already some parents experience difficulties enrolling their kids in school because they don’t have a birth certificate, the last thing we need is more barriers to children receiving an education.
There is no doubt that more needs to be done to increase the number of children being immunised. However, discriminating against children whose parents have decided not to vaccinate them, by withholding access to education, is not an appropriate way of achieving this. It is not in the best interests of children to try to increase one right (health) by denying access to another right (education).
We need to be smarter about the ways in which we can increase the number of children being vaccinated, and use carrots rather than sticks. Using punitive measures to try to improve immunisation rates violates the core principles of the Convention on the Rights of the Child.
Dr Paula Gerber is an Associate Professor and the Deputy Director of the Castan Centre for Human Rights Law in the Faculty of Law at Monash University.
A version of this article has appeared in Crikey.