Amendment Statement of Principles concerning osteoarthritis (Reasonable Hypothesis) (No. 40 of 2020)

Administered by Department of Veterans' Affairs

Legislation au F2020L00496 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

AMENDMENT Statement of Principles concerning

OSTEOARTHRITIS

(REASONABLE HYPOTHESIS) (NO. 40 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 osteoarthritis (Reasonable Hypothesis) (No. 40 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 osteoarthritis (Reasonable Hypothesis) (No. 40 of 2020).

3.             This Instrument amends Statement of Principles concerning osteoarthritis (Reasonable Hypothesis) (No. 61 of 2017) (Federal Register of Legislation No. F2017L01443) by:

  • replacing the existing definition of 'trauma to the affected joint' 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 osteoarthritis 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 osteoarthritis 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. 40 of 2020

Kind of Injury, Disease or Death: Osteoarthritis

 

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. 61 of 2017;
  • 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 osteoarthritis and in particular, includes a revised definition of 'trauma to the affected joint' to ensure that the factors concerning trauma to the affected joint are 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 osteoarthritis (Reasonable Hypothesis) (No. 40 of 2020) is an instrument enacted to refine the criteria for determining eligibility for benefits related to osteoarthritis under the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004. This legislative amendment was introduced by the Repatriation Medical Authority, pursuant to subsections 196B(2) and (8) of the Veterans' Entitlements Act 1986, to address the gap in the existing definition of "trauma to the affected joint," which was deemed insufficient in certain circumstances, such as when symptoms and signs were masked by unconsciousness or analgesic medication. The policy objective of this amendment is to facilitate the assessment and review of claims for social security benefits and compensation, ensuring that the qualifying conditions are reasonable, proportionate, and transparent. The instrument is 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.

Scope and Application

The Amendment Statement of Principles concerning osteoarthritis (Reasonable Hypothesis) (No. 40 of 2020) applies to persons covered under the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004, particularly those who are veterans and current or former Defence Force members who have been diagnosed with osteoarthritis. The Act amends the existing definition of 'trauma to the affected joint' to ensure that claimants whose symptoms and signs are masked by unconsciousness or analgesic medication are not disadvantaged in their claims. The legislative instrument is designed to facilitate both the making of claims and the assessment of these claims by the Repatriation Commission, as well as the review of such decisions by the Veterans' Review Board and the Administrative Appeals Tribunal. The geographical and jurisdictional reach of this Act is Commonwealth-wide, as it pertains to federal legislation concerning veterans' entitlements and military rehabilitation and compensation. The Act is compatible with human rights, promoting the rights of veterans and Defence Force members to social security, an adequate standard of living, and the highest attainable standard of physical and mental health, without discrimination. The Act's provisions can be extended or restricted through subordinate instruments, ensuring that the medico-scientific quality of outcomes under the VEA and MRCA is maintained and improved.

Key Provisions

The main operative sections of this Amendment Statement of Principles concern the redefinition of 'trauma to the affected joint' in Schedule 1 – Dictionary, which is detailed in section 3. This change is intended to ensure that claimants whose symptoms and signs are masked by unconsciousness or analgesic medication have the factors concerning trauma to the affected joint available to them, thus facilitating the process of making and assessing claims under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA). The instrument replaces the existing definition of 'trauma to the affected joint' in the original Statement of Principles concerning osteoarthritis (Reasonable Hypothesis) (No. 61 of 2020) with a revised definition. This amendment specifies the circumstances under which medical treatment and compensation can be extended to eligible persons who have osteoarthritis, thereby ensuring that the qualifying conditions for benefits are reasonable, proportionate, and transparent. The Act imposes several obligations and requirements on the parties and entities it governs. The Repatriation Medical Authority (the Authority) must determine the principles concerning osteoarthritis under subsections 196B(2) and (8) of the VEA. The Authority must also consult with relevant stakeholders, including the Repatriation Commission, the Military Rehabilitation and Compensation Commission, and other organisations and persons with expertise in the field, as outlined in section 5. The Authority must ensure that the amended principles are compatible with human rights, as detailed in the Statement of Compatibility with Human Rights (section 6). The Authority must also facilitate the assessment and determination of social security benefits and compensation, ensuring that claimants receive fair and transparent treatment. There are no explicit offences, penalties, or civil/criminal consequences mentioned for breach of this instrument. However, the instrument's purpose is to ensure that claimants receive appropriate medical treatment and compensation for osteoarthritis under the VEA and MRCA. The Authority's role in determining the principles and facilitating the claims process is central to achieving these objectives. Any failure to adhere to the principles outlined in the instrument could potentially result in claimants not receiving the benefits to which they are entitled, which could be viewed as an indirect consequence of non-compliance. The compatibility with human rights ensures that any potential breaches would be subject to scrutiny and review by relevant authorities.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.