Amendment Statement of Principles concerning ganglion (Reasonable Hypothesis) (No. 37 of 2020)

Administered by Department of Veterans' Affairs

Legislation au F2020L00484 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

AMENDMENT Statement of Principles concerning

GANGLION

(REASONABLE HYPOTHESIS) (NO. 37 OF 2020)

 

VETERANS' ENTITLEMENTS ACT 1986

MILITARY REHABILITATION AND COMPENSATION ACT 2004

 

  1. This is the Explanatory Statement to the Amendment Statement of Principles concerning ganglion (Reasonable Hypothesis) (No. 37 of 2020).

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 ganglion (Reasonable Hypothesis) (No. 37 of 2020).

3.             This Instrument amends Statement of Principles concerning ganglion (Reasonable Hypothesis) (No. 71 of 2016) (Federal Register of Legislation No. F2016L01356) by:

  • replacing the existing definition of 'acute trauma to the affected joint or tendon' 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 an investigation in relation to ganglion in the Government Notices Gazette of 26 February 2020, 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.

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 ganglion as advertised in the Government Notices Gazette of 26 February 2020.

References

8.             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. 37 of 2020

Kind of Injury, Disease or Death: Ganglion

 

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:-

  • amends Instrument No. 71 of 2016;
  • 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 ganglion and in particular, includes a revised definition of 'acute trauma to the affected joint or tendon' to ensure that the factor concerning acute trauma to the affected joint or tendon is available to claimants whose symptoms and signs are masked by unconsciousness or analgesic medication; and
  • facilitates the review of such decisions by the Veterans' Review Board and the Administrative Appeals Tribunal.

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 Amendment Statement of Principles concerning ganglion (Reasonable Hypothesis) (No. 37 of 2020) was enacted to address the specific medical condition of ganglion in the context of veterans' entitlements and military rehabilitation. The Repatriation Medical Authority, acting under the authority granted by the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004, determined this amendment to improve the process of making and assessing claims related to ganglion. The objective of this amendment is to facilitate the claims process by refining the definition of 'acute trauma to the affected joint or tendon' to ensure it encompasses scenarios where symptoms might be masked by unconsciousness or analgesic medication. This change aims to provide a clearer framework for claimants and the Repatriation Commission in determining eligibility for benefits, while also ensuring that the rights of veterans and their dependents are upheld. This legislative amendment is consistent with the human rights standards outlined in international instruments, including the right to social security, an adequate standard of living, and the highest attainable standard of physical and mental health. It promotes transparency, proportionality, and accessibility in the claims process, ensuring that veterans and their families can exercise their rights without discrimination. The Repatriation Medical Authority ensures that this legislative instrument does not infringe upon any human rights and actively promotes the rights of veterans, current and former Defence Force members, and their dependents.

Scope and Application

This Amendment Statement of Principles concerning ganglion (Reasonable Hypothesis) (No. 37 of 2020) applies to veterans, current and former Defence Force members, and their dependants who are seeking medical treatment and compensation for ganglion under the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004. The amendment pertains to the definition of 'acute trauma to the affected joint or tendon' to ensure that the factor concerning acute trauma is available to claimants whose symptoms and signs are masked by unconsciousness or analgesic medication. The amendment facilitates the assessment of claims, determination of benefits, and the review of such decisions by the Veterans' Review Board and the Administrative Appeals Tribunal. This instrument is a technical amendment that improves the medico-scientific quality of outcomes under the applicable acts and does not derogate from any human rights, instead promoting the human rights of veterans, current and former Defence Force members, and their dependants by ensuring reasonable, proportionate, and transparent qualifying conditions for the benefit. The Amendment Statement of Principles concerning ganglion (Reasonable Hypothesis) (No. 37 of 2020) is applicable nationally across Australia, as it amends the Statement of Principles concerning ganglion (Reasonable Hypothesis) (No. 71 of 2016) under the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004. There are no stated exclusions, exemptions, or thresholds in this particular instrument. However, the application of the Act may be extended or restricted through subordinate instruments, which are not explicitly mentioned in this Explanatory Statement.

Key Provisions

The main sections of the Amendment Statement of Principles concerning ganglion (Reasonable Hypothesis) (No. 37 of 2020) amend the Statement of Principles concerning ganglion (Reasonable Hypothesis) (No. 71 of 2016) by altering the definition of 'acute trauma to the affected joint or tendon'. This amendment aims to facilitate claims for those who have ganglion, particularly in cases where symptoms are masked by unconsciousness or analgesic medication (Section 3). This legislative instrument is designed to improve the quality of medico-scientific outcomes under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA). The Act imposes obligations on the Repatriation Medical Authority to ensure that the amended principles are aligned with available sound medical-scientific evidence. It also requires the Repatriation Commission to assess claims under the VEA and MRCA based on the new criteria. Furthermore, the Veterans' Review Board and the Administrative Appeals Tribunal must review decisions made in accordance with these principles. The legislative instrument is assessed as a technical one that enhances the medico-scientific quality of outcomes under the VEA and MRCA. The legislative instrument does not outline specific offences, penalties, or consequences for breach within its text. However, any breach of the provisions could potentially lead to disputes in the assessment and determination of benefits and compensation under the VEA and MRCA. These disputes could then be reviewed by the Veterans' Review Board and the Administrative Appeals Tribunal, which have the authority to overturn or affirm decisions based on the legislative provisions. The maximum penalties or consequences for non-compliance are not explicitly stated in the provided text but would generally be determined by the relevant acts and tribunals.

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