Federal Register of Legislation - Australian Government

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No. 91 of 2020 Determinations/Veterans' Entitlements as made
This instrument is the Statement of Principles concerning inflammatory bowel disease (Balance of Probabilities).
Administered by: Veterans' Affairs
Registered 02 Nov 2020
Tabling HistoryDate
Tabled HR09-Nov-2020
Tabled Senate09-Nov-2020

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EXPLANATORY STATEMENT

 

STATEMENT OF PRINCIPLES CONCERNING

INFLAMMATORY BOWEL DISEASE

(BALANCE OF PROBABILITIES) (NO. 91 OF 2020)

 

VETERANS' ENTITLEMENTS ACT 1986

MILITARY REHABILITATION AND COMPENSATION ACT 2004

 

1.             This is the Explanatory Statement to the Statement of Principles concerning inflammatory bowel disease (Balance of Probabilities) (No. 91 of 2020).

Background

2.             The Repatriation Medical Authority (the Authority), under subsection 196B(8) of the Veterans' Entitlements Act 1986 (the VEA), repeals Instrument No. 20 of 2012 (Federal Register of Legislation No. F2012L00452) determined under subsection 196B(3) of the VEA concerning inflammatory bowel disease.

3.             The Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that inflammatory bowel disease and death from inflammatory bowel disease can be related to particular kinds of service.  The Authority has therefore determined pursuant to subsection 196B(3) of the VEA a Statement of Principles concerning inflammatory bowel disease (Balance of Probabilities) (No. 91 of 2020).  This Instrument will in effect replace the repealed Statement of Principles.

Purpose and Operation

4.             The Statement of Principles will be applied in determining claims under the VEA and the Military Rehabilitation and Compensation Act 2004 (the MRCA).

5.             The Statement of Principles sets out the factors that must exist, and which of those factors must be related to the following kinds of service rendered by a person:

          eligible war service (other than operational service) under the VEA;

          defence service (other than hazardous service and British nuclear test defence service) under the VEA;

          peacetime service under the MRCA,

before it can be said that, on the balance of probabilities, inflammatory bowel disease or death from inflammatory bowel disease is connected with the circumstances of that service.  The Statement of Principles has been determined for the purposes of both the VEA and the MRCA.

6.             This Instrument results from an investigation notified by the Authority in the Government Notices Gazette of 7 May 2019 concerning inflammatory bowel disease in accordance with section 196G of the VEA.  The investigation involved an examination of the sound medical-scientific evidence now available to the Authority, including the sound medical-scientific evidence it has previously considered.

7.             The contents of this Instrument are in similar terms as the repealed Instrument.  Comparing this Instrument and the repealed Instrument, the differences include:

·                    adopting the latest revised Instrument format, which commenced in 2015;

·                    specifying a day of commencement for the Instrument in section 2;

·                    revising the definition of 'inflammatory bowel disease' in subsection 7(2);

·                    revising the reference to 'ICD-10-AM code' in subsection 7(4);

·                    new factor in subsection 9(1) concerning taking a nonsteroidal anti-inflammatory drug, for clinical onset only;

·                    new factor in subsection 9(2) concerning taking an interferon or a tumour necrosis factor antagonist, for clinical onset only;

·                    new factors in subsections 9(3) and 9(9) concerning taking an immune checkpoint inhibitor;

·                    revising the factor in subsection 9(4) concerning taking a combined oral contraceptive pill, for clinical onset;

·                    revising the factors in subsections 9(5) and 9(11) concerning undergoing organ or tissue transplantation, excluding corneal transplant;

·                    revising the factors in subsections 9(6) and 9(15) concerning smoking of tobacco products, for Crohn disease only;

·                    revising the factor in subsection 9(7) concerning permanently ceasing to smoke, for clinical onset only and for ulcerative colitis only;

·                    new factor in subsection 9(8) concerning taking a drug from the specified list of drugs, for clinical worsening only;

·                    new factor in subsection 9(10) concerning taking a combined oral contraceptive pill, for clinical worsening;

·                    new factor in subsection 9(12) concerning experiencing a category 1A stressor, for clinical worsening only;

·                    new factor in subsection 9(13) concerning experiencing a category 1B stressor, for clinical worsening only;

·                    new factor in subsection 9(14) concerning experiencing a category 2 stressor, for clinical worsening only;

·                    deleting the factors concerning being treated with a drug or a drug from a class of drugs, as these are now covered by the factor in subsection 9(1) concerning taking a nonsteroidal anti-inflammatory drug, for clinical onset only, the factor in subsection 9(2) concerning taking an interferon or a tumour necrosis factor antagonist, for clinical onset only and the factor in subsection 9(8) concerning taking a drug from the specified list of drugs, for clinical worsening only;

·                    deleting the factor concerning having clinical or laboratory evidence of a bowel infection, for clinical worsening only;

·                    new definitions of 'category 1A stressor', 'category 1B stressor', 'category 2 stressor', 'corpse', 'Crohn disease', 'eyewitness', 'MRCA', 'organ or tissue transplantation', 'pack-year of tobacco products', 'regular smoking habit as specified', 'significant other', 'specified list of drugs', 'ulcerative colitis' and 'VEA' in Schedule 1 - Dictionary;

·                    revising the definition of 'relevant service' in Schedule 1 – Dictionary; and

·                    deleting the definitions of 'a drug or a drug from a class of drugs in the specified list', 'a regular smoking habit', and 'pack-year of cigarettes, or the equivalent thereof in other tobacco products'.

Consultation

8.             Prior to determining this Instrument, the Authority advertised its intention to undertake an investigation in relation to inflammatory bowel disease in the Government Notices Gazette of 7 May 2019, and circulated a copy of the notice of intention to investigate to a wide range of organisations representing veterans, service personnel and their dependants.  The Authority invited submissions from the Repatriation Commission, the Military Rehabilitation and Compensation Commission, organisations and persons referred to in section 196E of the VEA, and any person having expertise in the field.  One submission was received for consideration by the Authority in relation to the investigation.

9.             On 15 June 2020, the Authority wrote to organisations representing veterans, service personnel and their dependants regarding the proposed Instrument and the medical-scientific material considered by the Authority.  This letter emphasised the deletion of the factor relating to having clinical or laboratory evidence of a bowel infection in the one month before the clinical worsening of inflammatory bowel disease.  The Authority provided an opportunity to the organisations to make representations in relation to the proposed Instrument prior to its determination.  No submissions were received for consideration by the Authority.  Minor changes were made to the proposed Instrument following this consultation process.

Human Rights

10.         This instrument is compatible with the Human Rights and Freedoms recognised or declared in the International Instruments listed in Section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.  A Statement of Compatibility with Human Rights follows.

Finalisation of Investigation

11.         The determining of this Instrument finalises the investigation in relation to inflammatory bowel disease as advertised in the Government Notices Gazette of 7 May 2019.

References

12.         A list of references relating to the above condition is available on the Authority’s website at: www.rma.gov.au. Any other document referred to in this Statement of Principles is available on request to the Repatriation Medical Authority at the following address:

              

  Email:    info@rma.gov.au

  Post:      The Registrar

Repatriation Medical Authority

GPO Box 1014

BRISBANE    QLD    4001


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Statement of Compatibility with Human Rights

(Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011)

 

Instrument No.:                                 Statement of Principles No. 91 of 2020

Kind of Injury, Disease or Death:   Inflammatory bowel disease

 

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Legislative Instrument

1.         This Legislative Instrument is determined pursuant to subsection 196B(3) of the Veterans' Entitlements Act 1986 (the VEA) for the purposes of the VEA and the Military Rehabilitation and Compensation Act 2004 (the MRCA).  Part XIA of the VEA requires the determination of these instruments outlining the factors connecting particular kinds of injury, disease or death with service such being determined solely on the available sound medical-scientific evidence.

2.         This Legislative Instrument:-

§     facilitates claimants in making, and the Repatriation Commission and the Military Rehabilitation and Compensation Commission in assessing, claims under the VEA and the MRCA respectively, by specifying the circumstances in which medical treatment and compensation can be extended to eligible persons who have inflammatory bowel disease;

§     facilitates the review of such decisions by the Veterans' Review Board and the Administrative Appeals Tribunal;

§     outlines the factors which the current sound medical-scientific evidence indicates must exist before it can be said that, on the balance of probabilities, inflammatory bowel disease is connected with the circumstances of eligible service rendered by a person, as set out in clause 5 of the Explanatory Statement;

§     replaces Instrument No. 20 of 2012; and

§     reflects developments in the available sound medical-scientific evidence concerning inflammatory bowel disease which have occurred since that earlier instrument was determined. 

3.         The Instrument is assessed as being a technical instrument which improves the medico-scientific quality of outcomes under the VEA and the MRCA. 

Human Rights Implications

4.         This Legislative Instrument does not derogate from any human rights. It promotes the human rights of veterans, current and former Defence Force members as well as other persons such as their dependents, including:

§     the right to social security (Art 9, International Covenant on Economic, Social and Cultural Rights; Art 26, Convention on the Rights of the Child and Art 28, Convention on the Rights of Persons with Disabilities) by helping to ensure that the qualifying conditions for the benefit are 'reasonable, proportionate and transparent'[1];

§     the right to an adequate standard of living (Art 11, ICSECR; Art 27, CRC and Art 28, CRPD) by facilitating the assessment and determination of social security benefits;

§     the right to the enjoyment of the highest attainable standard of physical and mental health (Art 12, ICSECR and Art 25, CRPD), by facilitating the assessment and determination of compensation and benefits in relation to the treatment and rehabilitation of veterans and Defence Force members;

§     the rights of persons with disabilities by facilitating the determination of claims relating to treatment and rehabilitation (Art 26, CRPD); and

§     ensuring that those rights "will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status" (Art 2, ICESCR).

Conclusion

This Legislative Instrument is compatible with human rights as it does not derogate from and promotes a number of human rights.

 

Repatriation Medical Authority

 

 

 

 

 

 



[1] In General Comment No. 19 (The right to social security), the Committee on Economic, Social and Cultural Rights said (at paragraph 24) this to be one of the elements of ensuring accessibility to social security.