Amendment Statement of Principles concerning asthma (Balance of Probabilities) (No. 93 of 2022)

Administered by Department of Veterans' Affairs

Legislation au F2022L01123 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

AMENDMENT Statement of Principles concerning

ASTHMA

(BALANCE OF PROBABILITIES) (NO. 93 OF 2022)

 

VETERANS' ENTITLEMENTS ACT 1986

MILITARY REHABILITATION AND COMPENSATION ACT 2004

 

  1. This is the Explanatory Statement to the Amendment Statement of Principles concerning asthma (Balance of Probabilities) (No. 93 of 2022).

Background

2.             The Repatriation Medical Authority (the Authority) has determined, under subsections 196B(3) and (8) of the Veterans' Entitlements Act 1986 (the VEA), Amendment Statement of Principles concerning asthma (Balance of Probabilities) (No. 93 of 2022).

3.             This Instrument amends Statement of Principles concerning asthma (Balance of Probabilities) (No. 32 of 2021) (Federal Register of Legislation No. F2021L00220) by:

  • inserting a new factor in subsection 9(1A) concerning 'having a sensitising exposure to an allergen'; and
  • inserting a definition of 'sensitising exposure to an allergen' in Schedule 1 – Dictionary.

4.             This Instrument also specifies a day of commencement for the amendment in accordance with subsection 12(3) of the Legislation Act 2003.

Consultation

5.             Prior to determining this Instrument, the Authority advertised its intention to undertake an investigation in relation to having a sensitising exposure to an allergen  as a factor in asthma in the Government Notices Gazette of 10 May 2022, 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.  No submissions were received for consideration by the Authority in relation to the investigation.

Human Rights

6.             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

7.             The determining of this Instrument finalises the investigation in relation to having a sensitising exposure to an allergen  as a factor in asthma as advertised in the Government Notices Gazette of 10 May 2022.

References

8.             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

 


Statement of Compatibility with Human Rights

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

 

Instrument No.:   Amendment Statement of Principles No. 93 of 2022

Kind of Injury, Disease or Death: Asthma

 

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 asthma;
  • facilitates the review of such decisions by the Veterans' Review Board and the Administrative Appeals Tribunal;
  • includes having a sensitising exposure to an allergen  as a new factor which the current sound medical-scientific evidence indicates must exist before it can be said that, on the balance of probabilities, asthma is connected with the circumstances of eligible service rendered by a person;
  • amends Instrument No. 32 of 2021; and
  • reflects developments in the available sound medical-scientific evidence concerning asthma 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, ICESCR; 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, ICESCR 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.

Overview

The Amendment Statement of Principles concerning asthma (Balance of Probabilities) (No. 93 of 2022) amends the existing Statement of Principles concerning asthma (Balance of Probabilities) (No. 32 of 2021), addressing a gap in the sound medical-scientific evidence concerning asthma and its connection to service. Enacted by the Repatriation Medical Authority under the Veterans' Entitlements Act 1986, the policy objective of this amendment is to incorporate the latest medical-scientific evidence into the legislative framework governing veterans' entitlements and military rehabilitation and compensation. The amendment introduces a new factor regarding 'sensitising exposure to an allergen' as a necessary condition for the connection between asthma and service to be established on the balance of probabilities. This legislative instrument is intended to facilitate claims and assessments, ensuring that the benefits provided under the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004 are both medically accurate and just. This legislative amendment is compatible with human rights and does not derogate from any rights recognised or declared in the International Instruments listed in Section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. By incorporating the latest medical evidence, the amendment promotes the right to social security and an adequate standard of living for veterans and their dependents, as well as the right to the highest attainable standard of physical and mental health. The amendment ensures that these rights are exercised without discrimination, thereby supporting the overall human rights framework.

Scope and Application

The Amendment Statement of Principles concerning asthma (Balance of Probabilities) (No. 93 of 2022) applies to veterans, current and former members of the Australian Defence Force, and other eligible persons who may have developed asthma as a result of their service. The Act operates within the framework of the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004, and is intended to facilitate the assessment and determination of claims for compensation and benefits related to asthma. This legislative instrument specifies that having a sensitising exposure to an allergen is now considered a factor that must exist before it can be said that, on the balance of probabilities, asthma is connected with the circumstances of service rendered by an eligible person. The instrument is designed to ensure that the qualifying conditions for the benefit are reasonable, proportionate, and transparent, thereby promoting the human rights of veterans, current and former Defence Force members, and their dependents, including the right to social security, an adequate standard of living, and the highest attainable standard of physical and mental health. The instrument does not derogate from any human rights and 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. The scope of this Act may be extended or restricted through subordinate instruments, as necessary.

Key Provisions

The main operative sections of this legislation, namely Amendment Statement of Principles concerning asthma (Balance of Probabilities) (No. 93 of 2022), focus on amending the existing Statement of Principles concerning asthma (Balance of Probabilities) (No. 32 of 2021) (F2021L00220) (paragraph 3). This amendment introduces a new factor in subsection 9(1A) concerning 'having a sensitising exposure to an allergen' and provides a definition of 'sensitising exposure to an allergen' in Schedule 1 – Dictionary. This legislative change is intended to enhance the medico-scientific quality of outcomes under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA), by ensuring that claims for medical treatment and compensation for asthma are assessed with the most up-to-date medical-scientific evidence. The obligations and requirements imposed by this Act on the parties it governs, primarily the Repatriation Medical Authority (the Authority) and the Repatriation Commission, involve ensuring that claims for medical treatment and compensation related to asthma are assessed in accordance with the most current sound medical-scientific evidence. The Authority is responsible for determining these amendments and ensuring they are consistent with the requirements of the VEA and MRCA, while the Repatriation Commission and the Military Rehabilitation and Compensation Commission must apply these updated principles when assessing claims. Additionally, the Veterans' Review Board and the Administrative Appeals Tribunal will review decisions made under these Acts, taking into account the new factors outlined in the amended Statement of Principles. The legislation does not explicitly outline any offences, penalties, or civil/criminal consequences for breach. However, the Repatriation Medical Authority is tasked with ensuring that the amended Statement of Principles is consistent with the VEA and MRCA, and any failure to comply with these Acts could result in legal consequences. Furthermore, the Authority's decision-making process is subject to scrutiny by the Veterans' Review Board and the Administrative Appeals Tribunal, which could lead to further review or even reversal of decisions if they are found to be inconsistent with the relevant legislation. The compatibility of this Legislative Instrument with human rights is also emphasised, ensuring that the rights of veterans, current and former Defence Force members, and their dependents are protected and promoted.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.