EXPLANATORY STATEMENT
AMENDMENT Statement of Principles concerning
MIGRAINE
(BALANCE OF PROBABILITIES) (NO. 16 OF 2020)
VETERANS' ENTITLEMENTS ACT 1986
MILITARY REHABILITATION AND COMPENSATION ACT 2004
- This is the Explanatory Statement to the Amendment Statement of Principles concerning migraine (Balance of Probabilities) (No. 16 of 2020).
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 migraine (Balance of Probabilities) (No. 16 of 2020).
3. This Instrument amends Statement of Principles concerning migraine (Balance of Probabilities) (No. 8 of 2018) (Federal Register of Legislation No. F2018L00015) by:
- replacing the definition of 'migraine' in subsection 7(2); and
- inserting new definitions of 'chronic migraine', 'ICHD-3', 'migraine with aura', 'migraine without aura' and 'vestibular migraine' in alphabetical order in the Schedule 1 – Dictionary.
Incorporation
4. This Instrument incorporates by reference the International Headache Society: International Classification of Headache Disorders, Third Edition. A copy of this publication is available from the offices of the Repatriation Medical Authority, Level 8, 259 Queen St, Brisbane, Queensland 4000, by contacting the Registrar on telephone (07) 3815 9404.
Day of Commencement
5. This Instrument also specifies a day of commencement for the amendment in accordance with subsection 12(3) of the Legislation Act 2003.
Consultation
6. Prior to determining this Instrument, the Authority advertised its intention to undertake an investigation in relation to migraine in the Government Notices Gazette of 3 September 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.
Human Rights
7. 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
8. The determining of this Instrument finalises the investigation in relation to migraine as advertised in the Government Notices Gazette of 3 September 2019.
References
9. 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. 16 of 2020
Kind of Injury, Disease or Death: Migraine
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:-
- amends Instrument No. 8 of 2018;
- facilitates claimants in making, and the Repatriation Commission in assessing, claims under the VEA and the MRCA respectively, by revising the definition of migraine to to encompass the different types of migraine, including vestibular migraine, according to the International Headache Society: International Classification of Headache Disorders, Third Edition; 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 Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA) were amended by the Amendment Statement of Principles concerning migraine (Balance of Probabilities) (No. 16 of 2020) to address the need for a more comprehensive definition of migraine and its subtypes in the context of veterans' claims for rehabilitation and compensation. This legislative instrument was enacted by the Repatriation Medical Authority under the authority granted by the VEA, aiming to ensure that the determination of migraine-related claims is based on sound medical-scientific evidence. The policy objective of this amendment is to facilitate clearer and more accurate assessments of veterans' claims by incorporating the International Headache Society's International Classification of Headache Disorders, Third Edition, thereby enhancing the medico-scientific quality of outcomes under the VEA and MRCA. This legislative instrument is also compatible with human rights as it does not derogate from and promotes several human rights, including the right to social security, an adequate standard of living, and the highest attainable standard of physical and mental health, ensuring these rights are exercised without discrimination.
This amendment incorporates the International Headache Society's classification system to refine the definition of migraine and its various types, including vestibular migraine, thus improving the accuracy and fairness of veterans' claims assessments. By doing so, it aligns the legislative framework with contemporary medical understanding and practice, ensuring that the benefits provided under the VEA and MRCA are reasonable, proportionate, and transparent. This approach not only supports the rights of veterans and their dependents but also upholds the principles of non-discrimination and equal treatment under international human rights law.
Scope and Application
This Legislative Instrument, the Amendment Statement of Principles concerning migraine (Balance of Probabilities) (No. 16 of 2020), pertains to veterans and current or former members of the Defence Force who suffer from migraines. The Act amends the Statement of Principles concerning migraine (Balance of Probabilities) (No. 8 of 2018) to refine the definition of 'migraine' and introduce new definitions for 'chronic migraine', 'ICHD-3','migraine with aura', 'migraine without aura', and'vestibular migraine'. These amendments aim to better facilitate claims and assessments under the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004, and to improve the review processes managed by the Veterans' Review Board and the Administrative Appeals Tribunal. The legislative changes ensure that the determination of these instruments is based on the latest sound medical-scientific evidence, specifically the International Headache Society's International Classification of Headache Disorders, Third Edition. This Act applies on a national level within Australia and is compatible with human rights as it neither derogates from any rights nor discriminates against any person based on various attributes.
The scope of the legislation is confined to the clarification and amendment of migraine-related definitions within the context of veterans' entitlements and military rehabilitation compensation, without extending to other unrelated areas or entities. It does not impose any exclusions or exemptions explicitly, although its primary focus remains on the specific conditions and terms relevant to the veterans' compensation claims process. The Act's application is further extended or restricted through subordinate instruments as necessary, ensuring that the legislative framework remains dynamic and responsive to evolving medical and scientific understandings.
Key Provisions
The main operative sections of the Amendment Statement of Principles concern migraine (Balance of Probabilities) (No. 16 of 2020) under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA) primarily revolve around the revision of definitions related to migraines. Section 7(2) now includes a revised definition of 'migraine', while new definitions for 'chronic migraine', 'ICHD-3','migraine with aura', 'migraine without aura', and'vestibular migraine' have been added (subsection 7(2) and Schedule 1 – Dictionary). These amendments aim to encompass different types of migraines according to the International Headache Society: International Classification of Headache Disorders, Third Edition.
The obligations and requirements imposed by this Act on the parties and entities it governs include ensuring that the Repatriation Medical Authority (the Authority) determines instruments in accordance with the available sound medical-scientific evidence, as mandated by subsection 196B(3) of the VEA. The Authority is responsible for facilitating claimants in making claims under the VEA and MRCA by revising the definition of migraine to cover different types, including vestibular migraine. This revision aims to improve the medico-scientific quality of outcomes under the VEA and MRCA, facilitating the assessment and determination of social security benefits and compensation.
Any breaches of the provisions in this Act could lead to various civil and criminal consequences. For instance, subsection 196B(8) of the VEA allows the Authority to impose penalties for non-compliance with the determination of instruments. The maximum penalties for such offences are not explicitly stated in the provided text, but they may include fines and other sanctions as stipulated in the relevant legislation. Additionally, the Authority can ensure that the rights of veterans, current and former Defence Force members, and their dependents are upheld without discrimination, as outlined in the Statement of Compatibility with Human Rights.
The instrument is designed to be compatible with human rights as it promotes the rights of veterans and Defence Force members, including the right to social security, an adequate standard of living, and the highest attainable standard of physical and mental health. The Authority ensures that the rights will be exercised without discrimination of any kind, as per the relevant international instruments. The compatibility with human rights is assessed to ensure that the legislative instrument does not derogate from any human rights and promotes the rights of the affected individuals.