Amendment Statement of Principles concerning chronic obstructive pulmonary disease No. 128 of 2015

Administered by Department of Veterans' Affairs

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REPATRIATION MEDICAL AUTHORITY

 

INSTRUMENT NO. 128 OF 2015

 

VETERANS’ ENTITLEMENTS ACT 1986

MILITARY REHABILITATION AND COMPENSATION ACT 2004

 

EXPLANATORY STATEMENT

 

 

  1. The Repatriation Medical Authority (the Authority) has determined, under subsection 196B(2) & (8) of the Veterans’ Entitlements Act 1986 (the VEA) Amendment Statement of Principles concerning chronic obstructive pulmonary disease (Reasonable Hypothesis) (No. 128 of 2015).
  2. This Instrument amends Statement of Principles concerning chronic obstructive pulmonary disease No. 37 of 2014, by:
  • inserting new factors 6(ga) & 6(pa) concerning 'inhaling dust';
  • inserting new factor 6(ra) concerning 'acute viral or bacterial lower respiratory tract infection', for clinical worsening only;
  • replacing the definition of "a respiratory tract irritant from the specified list" in clause 9; and
  • inserting a definition of "dust" in clause 9.

Day of Commencement

3.             This Instrument also specifies a day of commencement for the amendment in accordance with subsection 12(1)(a) of the Legislative Instruments Act 2003.

Consultation

4.             Prior to determining this Instrument, the Authority advertised its intention to undertake an investigation in relation to chronic obstructive pulmonary disease in the Government Notices Gazette of 13 January 2015, 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, organisations and persons referred to in section 196E of the VEA, and any person having expertise in the field.  Two submissions were received for consideration by the Authority during the investigation.

Human Rights

5.             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

6.             The determining of this Instrument finalises the investigation in relation to chronic obstructive pulmonary disease as advertised in the Government Notices Gazette of 13 January 2015.

References

7.             A list of references relating to the above condition is available to any person or organisation referred to in subsection 196E(1)(a) to (c) of the VEA.  Any such request must be made in writing to the Repatriation Medical Authority at the following address:

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. 128 of 2015

Kind of Injury, Disease or Death: Chronic obstructive pulmonary 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(8) 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 linking 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 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 chronic obstructive pulmonary disease;
  • facilitates the review of such decisions by the Veterans' Review Board and the Administrative Appeals Tribunal;
  • includes new factors which the current sound medical-scientific evidence indicates must as a minimum exist, before it can be said that a reasonable hypothesis has been raised, connecting chronic obstructive pulmonary disease with the circumstances of eligible service rendered by a person;
  • amends Instrument No. 37 of 2014; and
  • reflects developments in the available sound medical-scientific evidence concerning chronic obstructive pulmonary 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.

Overview

The Repatriation Medical Authority Instrument No. 128 of 2015 amends the Veterans’ Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004 to update the Statement of Principles concerning chronic obstructive pulmonary disease. This amendment was introduced to address gaps in the existing medical-scientific evidence regarding the link between chronic obstructive pulmonary disease and military service, specifically in relation to exposure to dust and acute viral or bacterial lower respiratory tract infections. Enacted by the Repatriation Medical Authority under the authority granted by the Veterans’ Entitlements Act 1986, the policy objective of this instrument is to ensure that claimants and the Repatriation Commission can accurately assess and facilitate claims for medical treatment and compensation related to chronic obstructive pulmonary disease. The Authority also aimed to ensure that these decisions could be effectively reviewed by the Veterans' Review Board and the Administrative Appeals Tribunal. Furthermore, the instrument aligns with human rights by promoting the right to social security, an adequate standard of living, and the highest attainable standard of physical and mental health for veterans and current or former Defence Force members, ensuring that these rights are exercised without discrimination.

Scope and Application

The Repatriation Medical Authority Instrument No. 128 of 2015 amends the Statement of Principles concerning chronic obstructive pulmonary disease, as part of its role under the Veterans’ Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004. This legislative instrument applies to veterans and current or former Defence Force members who have chronic obstructive pulmonary disease and are seeking medical treatment and compensation. The instrument incorporates new factors, including exposure to dust and acute viral or bacterial lower respiratory tract infections, into the criteria for linking the disease to service. It also modifies definitions to ensure clarity and consistency in the application of the principles. The amendment reflects recent developments in medical-scientific evidence and is designed to facilitate claims and reviews under the relevant Acts. The instrument applies nationally, as it is determined under Commonwealth legislation, and it specifies a commencement date to ensure timely application. The Authority consulted widely with relevant organisations and individuals during its investigation and received submissions to inform its decision-making process. This Legislative Instrument is compatible with human rights, as it promotes the rights of veterans and Defence Force members without derogating from any human rights obligations.

Key Provisions

The main operative sections of this legislation, Instrument No. 128 of 2015, pertain to the amendment of Statement of Principles concerning chronic obstructive pulmonary disease (COPD). This amendment introduces new factors (sections 6(ga), 6(pa), and 6(ra)) that include "inhaling dust" and "acute viral or bacterial lower respiratory tract infection" as contributing elements to COPD for clinical worsening. Additionally, it redefines "a respiratory tract irritant from the specified list" and introduces a new definition for "dust" within clause 9 of the original statement of principles. These changes aim to ensure that the medical evidence accurately reflects the current understanding of COPD, specifically in relation to veterans and service personnel. The obligations and requirements imposed by this Act are primarily on the Repatriation Medical Authority, which must ensure that the amended principles are in line with the latest medical-scientific evidence. This involves evaluating the impact of inhaling dust and acute viral or bacterial infections on COPD and ensuring that these factors are accurately reflected in the assessment of claims. The Repatriation Medical Authority is also mandated to consult widely with relevant stakeholders, including veterans' organisations and experts in the field, before making any amendments. Furthermore, the Authority must ensure that the amended principles do not infringe upon any human rights, as stipulated in the Human Rights (Parliamentary Scrutiny) Act 2011. Breaches of the obligations set out in this Act could result in various consequences. Although specific penalties are not detailed in the explanatory statement, the Act likely falls under the general provisions of the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004, which could include civil or administrative penalties for non-compliance. Additionally, any failure to adhere to the human rights standards as outlined could lead to legal challenges or reviews by relevant tribunals or courts. The maximum penalties, if applicable, would depend on the specific breach and the relevant legislative provisions governing such actions.

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