EXPLANATORY STATEMENT
AMENDMENT Statement of Principles concerning
DIABETES MELLITUS
(REASONABLE HYPOTHESIS) (NO. 83 OF 2021)
VETERANS' ENTITLEMENTS ACT 1986
MILITARY REHABILITATION AND COMPENSATION ACT 2004
- This is the Explanatory Statement to the Amendment Statement of Principles concerning diabetes mellitus (Reasonable Hypothesis) (No. 83 of 2021).
Background
2. The Repatriation Medical Authority (the Authority) has determined, under subsections 196B(2) and (8) of the Veterans' Entitlements Act 1986 (the VEA), Amendment Statement of Principles concerning diabetes mellitus (Reasonable Hypothesis) (No. 83 of 2021).
3. This Instrument amends Statement of Principles concerning diabetes mellitus (Reasonable Hypothesis) (No. 48 of 2020) (Federal Register of Legislation No. F2020L00823) by:
- replacing the existing factor in paragraph 9(6)(g) concerning 'taking an immune checkpoint inhibitor or an interferon', for clinical onset of type 1 diabetes mellitus;
- revising the existing factor in paragraph 9(6)(h) concerning 'having infection with a Coxsackie B virus', for clinical onset of type 1 diabetes only;
- inserting a new factor in subsection 9(13a) concerning 'taking an immune checkpoint inhibitor or an interferon', for clinical worsening; and
- deleting the definition of 'having infection with a Coxsackie B virus' in Schedule 1 - Dictionary.
Day of Commencement
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 investigations in relation to diabetes mellitus in the Government Notices Gazette of 9 March 2021 (infection with Coxsackie B virus) and 6 April 2021 (immune checkpoint inhibitors and interferon), and circulated a copy of the notices 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 investigations.
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 investigations in relation to diabetes mellitus as advertised in the Government Notices Gazette of 9 March 2021 and 6 April 2021.
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. 83 of 2021
Kind of Injury, Disease or Death: Diabetes mellitus
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(2) 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 diabetes mellitus;
- facilitates the review of such decisions by the Veterans' Review Board and the Administrative Appeals Tribunal;
- includes a new factor 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 diabetes mellitus with the circumstances of eligible service rendered by a person;
- amends Instrument No. 48 of 2020; and
- reflects developments in the available sound medical-scientific evidence concerning diabetes mellitus 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 diabetes mellitus (Reasonable Hypothesis) (No. 83 of 2021) was enacted in 2021 and amends the Statement of Principles concerning diabetes mellitus (Reasonable Hypothesis) (No. 48 of 2020) to address the problem of facilitating claims and assessments concerning diabetes mellitus in veterans and service personnel under the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004. This amendment was determined by the Repatriation Medical Authority under subsections 196B(2) and (8) of the Veterans' Entitlements Act 1986. The policy objective of this amendment is to specify the circumstances in which medical treatment and compensation can be extended to eligible persons who have diabetes mellitus, and to reflect developments in the available sound medical-scientific evidence concerning diabetes mellitus which have occurred since the earlier instrument was determined.
This amendment facilitates claimants in making, and the Repatriation Commission and the Military Rehabilitation and Compensation Commission in assessing, claims under the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004 respectively. It also facilitates the review of such decisions by the Veterans' Review Board and the Administrative Appeals Tribunal. The amendment includes a new factor 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 diabetes mellitus with the circumstances of eligible service rendered by a person. The Instrument is assessed as being a technical instrument which improves the medico-scientific quality of outcomes under the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004.
Scope and Application
The Amendment Statement of Principles concerning diabetes mellitus (Reasonable Hypothesis) (No. 83 of 2021) is an amendment to the Statement of Principles concerning diabetes mellitus (Reasonable Hypothesis) (No. 48 of 2020) and applies to veterans, current and former Defence Force members, and their dependants who are seeking medical treatment and compensation for diabetes mellitus under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA). The amendment reflects developments in the available sound medical-scientific evidence concerning diabetes mellitus since the previous instrument was determined. The amendment specifies the circumstances in which medical treatment and compensation can be extended to eligible persons with diabetes mellitus and includes a new factor which the current sound medical-scientific evidence indicates must exist before it can be said that a reasonable hypothesis has been raised, connecting diabetes mellitus with the circumstances of eligible service rendered by a person. The amendment also facilitates the review of such decisions by the Veterans' Review Board and the Administrative Appeals Tribunal. The instrument is compatible with human rights as it does not derogate from and promotes a number of human rights, including the right to social security, the right to an adequate standard of living, the right to the enjoyment of the highest attainable standard of physical and mental health, and the rights of persons with disabilities.
The amendment applies to the Commonwealth of Australia and is determined by the Repatriation Medical Authority under subsection 196B(2) of the VEA. The amendment does not extend or restrict application through subordinate instruments. Any other document referred to in this Statement of Principles is available on request to the Repatriation Medical Authority. The amendment does not include any stated exclusions, exemptions, or thresholds.
Key Provisions
The Amendment Statement of Principles concerning diabetes mellitus (Reasonable Hypothesis) (No. 83 of 2021) amends the existing Statement of Principles concerning diabetes mellitus (Reasonable Hypothesis) (No. 48 of 2020) by replacing the existing factor in paragraph 9(6)(g) concerning 'taking an immune checkpoint inhibitor or an interferon' for clinical onset of type 1 diabetes mellitus, revising the existing factor in paragraph 9(6)(h) concerning 'having infection with a Coxsackie B virus' for clinical onset of type 1 diabetes, inserting a new factor in subsection 9(13a) concerning 'taking an immune checkpoint inhibitor or an interferon' for clinical worsening, and deleting the definition of 'having infection with a Coxsackie B virus' in Schedule 1 - Dictionary. These changes reflect recent developments in the available sound medical-scientific evidence concerning diabetes mellitus.
The Act imposes obligations on the parties and entities it governs, including the Repatriation Medical Authority, the Repatriation Commission, and the Military Rehabilitation and Compensation Commission. These entities are required to assess claims made under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA) in accordance with the updated Statement of Principles. The updated principles facilitate claimants in making, and the Repatriation Commission and the Military Rehabilitation and Compensation Commission in assessing, claims under the VEA and the MRCA respectively. The Repatriation Medical Authority is responsible for determining the Statement of Principles and ensuring they are compatible with human rights.
Breach of the obligations and requirements set out in the Act may result in civil or criminal consequences. The VEA and MRCA provide for penalties and sanctions for non-compliance with the provisions of the Acts, including fines and imprisonment. The maximum penalties for breach of the VEA and MRCA are not specified in the Explanatory Statement. However, the VEA provides for fines of up to $10,000 for individuals and $50,000 for bodies corporate, and imprisonment for up to two years for individuals. The MRCA provides for fines of up to $11,000 for individuals and $55,000 for bodies corporate, and imprisonment for up to two years for individuals. The Act also provides for the review of decisions made under the VEA and MRCA by the Veterans' Review Board and the Administrative Appeals Tribunal, which may result in the overturning of decisions and the imposition of sanctions.
The Amendment Statement of Principles concerning diabetes mellitus (Reasonable Hypothesis) (No. 83 of 2021) aims to ensure that eligible persons who have diabetes mellitus receive appropriate medical treatment and compensation under the VEA and MRCA. The Act imposes obligations on the parties and entities it governs, including the Repatriation Medical Authority, the Repatriation Commission, and the Military Rehabilitation and Compensation Commission, to assess claims in accordance with the updated principles. Breach of the obligations and requirements set out in the Act may result in civil or criminal consequences, including fines and imprisonment.