Amendment Statement of Principles concerning temporomandibular disorder (Balance of Probabilities) (No. 43 of 2020)

Administered by Department of Veterans' Affairs

Legislation au F2020L00507 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

AMENDMENT Statement of Principles concerning

TEMPOROMANDIBULAR DISORDER

(BALANCE OF PROBABILITIES) (NO. 43 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 temporomandibular disorder (Balance of Probabilities) (No. 43 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 temporomandibular disorder (Balance of Probabilities) (No. 43 of 2020).

3.             This Instrument amends Statement of Principles concerning temporomandibular disorder (Balance of Probabilities) (No. 48 of 2018) (Federal Register of Legislation No. F2018L00541) by:

  • replacing the existing definition of 'acute trauma' 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 temporomandibular disorder 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 temporomandibular disorder 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. 43 of 2020

Kind of Injury, Disease or Death: Temporomandibular disorder

 

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. 48 of 2018;
  • 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 temporomandibular disorder and in particular, includes a revised definition of 'acute trauma' to ensure that the factors concerning acute trauma 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 Temporomandibular Disorder (Balance of Probabilities) (No. 43 of 2020) amends the existing Statement of Principles concerning Temporomandibular Disorder (Balance of Probabilities) (No. 48 of 2018). This legislative instrument was determined by the Repatriation Medical Authority under the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004 to address the need for a more comprehensive and precise definition of 'acute trauma' in relation to temporomandibular disorder. The amendment aims to facilitate the process for claimants and the Repatriation Commission in assessing claims for medical treatment and compensation. It also ensures that the factors concerning acute trauma are considered for claimants whose symptoms and signs are masked by unconsciousness or analgesic medication. This Legislative Instrument is compatible with human rights, as it promotes 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. The Repatriation Medical Authority finalised this investigation after advertising its intention and inviting submissions from relevant organisations and experts. The Instrument ensures that the qualifying conditions for benefits are reasonable, proportionate, and transparent, and it facilitates the assessment and determination of social security benefits, compensation, and treatment and rehabilitation claims.

Scope and Application

The Amendment Statement of Principles concerning Temporomandibular Disorder (Balance of Probabilities) (No. 43 of 2020) applies to veterans, current and former Defence Force members, and other eligible persons who have sustained temporomandibular disorder, with the purpose of facilitating claims under the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004. This Amendment is intended to provide clarity and improved outcomes for claimants by revising the definition of 'acute trauma' in the context of temporomandibular disorder. The legislative instrument has a Commonwealth reach, being determined under the Veterans' Entitlements Act 1986, which applies across Australia. There are no explicit exclusions or thresholds mentioned in the explanatory statement, though the determination is based on sound medical-scientific evidence. The application of the Act may be further extended or restricted through subordinate instruments, as is common in Australian legislative frameworks. The compatibility of this instrument with human rights has been affirmed, ensuring that the rights of veterans, service personnel, and their dependents are upheld and facilitated.

Key Provisions

The Amendment Statement of Principles concerning temporomandibular disorder (Balance of Probabilities) (No. 43 of 2020) is a legislative instrument that amends the previous definition of 'acute trauma' in the Statement of Principles concerning temporomandibular disorder (Balance of Probabilities) (No. 48 of 2018). This amendment (section 3) is made to better facilitate claims under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA) by providing clarity on the circumstances in which medical treatment and compensation can be extended to eligible persons with temporomandibular disorder, especially in cases where symptoms and signs are masked by unconsciousness or analgesic medication. This amendment is intended to improve the medico-scientific quality of outcomes under these acts. The obligations imposed by this amendment primarily concern the Repatriation Medical Authority, the Repatriation Commission, the Military Rehabilitation and Compensation Commission, the Veterans' Review Board, and the Administrative Appeals Tribunal. These entities are required to use the updated definition of 'acute trauma' when assessing and reviewing claims related to temporomandibular disorder. Claimants, in turn, must ensure that their claims are substantiated by appropriate medical evidence that aligns with the revised definition. There are no specific offences or penalties outlined in this Amendment Statement of Principles. However, any breach of the provisions of the VEA or MRCA related to the assessment and determination of claims could result in legal consequences under those acts. The VEA and MRCA both provide for various civil and criminal penalties for breaches, including fines and imprisonment, depending on the nature and severity of the breach. The legislative instrument ensures compatibility with human rights as it does not derogate from and promotes several human rights, such as the right to social security, an adequate standard of living, and the highest attainable standard of physical and mental health. It also ensures that these rights are exercised without discrimination of any kind. This compatibility is further supported by the Statement of Compatibility with Human Rights, which confirms that the instrument aligns 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.

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