Amendment Statement of Principles concerning myelodysplastic syndrome (Balance of Probabilities) (No. 36 of 2016)

Administered by Department of Veterans' Affairs

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EXPLANATORY STATEMENT

 

Amendment Statement of Principles concerning myelodysplastic syndrome

(Balance of Probabilities) (NO. 36 OF 2016)

 

VETERANS’ ENTITLEMENTS ACT 1986

MILITARY REHABILITATION AND COMPENSATION ACT 2004

 

  1. This is the Explanatory Statement to the Amendment Statement of Principles concerning myelodysplastic syndrome (Balance of Probabilities) (No. 36 of 2016).

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 myelodysplastic syndrome (Balance of Probabilities) (No. 36 of 2016).

3.             This Instrument amends Statement of Principles concerning myelodysplastic syndrome (No. 74 of 2015) by:

  • replacing the existing factor in subsection 9(6) concerning 'being exposed to benzene'; and
  • replacing the definition of 'being exposed to benzene' with the definition of 'being exposed to benzene as specified' in Schedule 1 – Dictionary.

Day of Commencement

4.             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

5.             Prior to determining this Instrument, the Authority advertised its intention to undertake an investigation in relation to benzene as a factor in myelodysplastic syndrome in the Government Notices Gazette of 9 December 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.  Three submissions were received for consideration by the Authority during 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 myelodysplastic syndrome as advertised in the Government Notices Gazette of 9 December 2015.

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. 36 of 2016

Kind of Injury, Disease or Death: Myelodysplastic syndrome

 

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 myelodysplastic syndrome;
  • facilitates the review of such decisions by the Veterans' Review Board and the Administrative Appeals Tribunal;
  • includes a revised factor which the current sound medical-scientific evidence indicates must exist before it can be said that, on the balance of probabilities, myelodysplastic syndrome is connected with the circumstances of eligible service rendered by a person;
  • amends Instrument No. 74 of 2015; and
  • reflects developments in the available sound medical-scientific evidence concerning myelodysplastic syndrome 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 Veterans’ Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004 were amended by the Amendment Statement of Principles concerning myelodysplastic syndrome (Balance of Probabilities) (No. 36 of 2016) to address issues related to the eligibility of veterans and current or former Defence Force members for compensation and treatment for myelodysplastic syndrome. This legislative instrument was enacted by the Repatriation Medical Authority, and its policy objective is to ensure that the conditions for qualifying for benefits under the Acts are reasonable, proportionate, and transparent, and to facilitate the assessment and determination of social security benefits. The Authority sought to improve the medico-scientific quality of outcomes under these Acts by reflecting developments in the available sound medical-scientific evidence concerning myelodysplastic syndrome. This Legislative Instrument is also compatible with human rights and does not derogate from any human rights. Instead, 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, the right to an adequate standard of living, and the right to the enjoyment of the highest attainable standard of physical and mental health.

Scope and Application

The Amendment Statement of Principles concerning myelodysplastic syndrome (Balance of Probabilities) (No. 36 of 2016) amends the Statement of Principles concerning myelodysplastic syndrome (No. 74 of 2015) to reflect recent developments in sound medical-scientific evidence. This legislative instrument applies to eligible persons who have myelodysplastic syndrome and seeks to facilitate the making of claims, assessment of these claims, and the review of related decisions under the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004. The instrument is applicable to veterans, current and former Defence Force members, and their dependents. The scope of this instrument is determined under the authority provided by the Veterans’ Entitlements Act 1986 and is compatible with human rights as outlined in the Human Rights (Parliamentary Scrutiny) Act 2011. The instrument does not derogate from any human rights and promotes the right to social security, an adequate standard of living, and the highest attainable standard of physical and mental health for the specified groups. The application of this instrument is limited to Commonwealth jurisdiction, and no specific exclusions, exemptions, or thresholds are noted in the explanatory statement.

Key Provisions

The main operative sections of this legislation are subsections 196B(3) and (8) of the Veterans’ Entitlements Act 1986 (VEA), which provide the legal basis for the Repatriation Medical Authority to amend the Statement of Principles concerning myelodysplastic syndrome (No. 74 of 2015). The Amendment Statement of Principles (No. 36 of 2016) modifies the existing provisions by replacing the factor concerning exposure to benzene and updating the definition of 'being exposed to benzene'. These changes aim to reflect the most recent sound medical-scientific evidence on myelodysplastic syndrome, facilitating both the making and assessing of claims under the VEA and the Military Rehabilitation and Compensation Act 2004 (MRCA). The amendments also streamline the review processes by the Veterans' Review Board and the Administrative Appeals Tribunal. The Act imposes specific obligations and requirements on the Repatriation Medical Authority, the Repatriation Commission, and claimants. The Authority must determine these instruments based on the available sound medical-scientific evidence, ensuring that the criteria for linking myelodysplastic syndrome to service are accurate and up-to-date. The Repatriation Commission is required to assess claims in light of the updated Statement of Principles, while claimants must provide evidence that aligns with the new criteria to qualify for medical treatment and compensation. Additionally, the Authority is mandated to consult widely with relevant organisations and individuals before finalising the amendments, ensuring transparency and inclusivity in the process. Breach of the provisions outlined in this legislation can lead to various consequences. While the specific offences and penalties are not detailed in the explanatory statement, it is likely that non-compliance with the updated criteria for myelodysplastic syndrome claims could result in denial of benefits or compensation. Furthermore, the Authority’s failure to adhere to the mandated consultation process could potentially be subject to review by the Administrative Appeals Tribunal or other relevant bodies. The precise legal and administrative repercussions would depend on the nature and extent of the breach, but they could include financial penalties, corrective measures, or further legislative scrutiny.

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