EXPLANATORY STATEMENT
Military Rehabilitation and Compensation (Access to Non-Liability Health Care for Malignant Neoplasia and Pulmonary Tuberculosis Treatment) Determination 2026
EMPOWERING PROVISION
The Military Rehabilitation and Compensation Commission (the Commission) makes this instrument under section 284A(1) of the of the Military Rehabilitation and Compensation Act 2004 (the Act). This instrument is made in reliance upon section 24A of the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004 (CATP) and section 4 of the Acts Interpretation Act 1901.
PURPOSE
The Military Rehabilitation and Compensation (Access to Non-Liability Health Care for Malignant Neoplasia and Pulmonary Tuberculosis Treatment) Determination 2026 will provide capacity under the Act for the Department of Veterans’ Affairs to provide non-liability treatment for malignant neoplasia and pulmonary tuberculosis for certain defined cohorts of veterans of the Australian Defence Force. This ensures continuity of existing eligibilities under Section 85 of the Veterans’ Entitlements Act 1986 (VEA).
OVERVIEW
Since the 1970s, certain cohorts of veterans have been eligible for treatment of malignant neoplasia (cancers) and pulmonary tuberculosis (TB) on a non-liability basis. These provisions were originally introduced due to a then unexplained higher incidence of cancers among veterans who had returned from operational service. Coverage was extended to all veterans eligible under the Repatriation Act 1920 in the mid-1970s – which included certain veterans with peacetime service – and this coverage was retained in the VEA when that Act was introduced in 1986 within the primary legislation at Section 85.
While Section 85 of the VEA will remain in force, when the Veterans’ Entitlements, Treatment and Support (Simplification and Harmonisation) Act 2025 (the VETS Act) comes into effect on 1 July 2026 new Section 117 of the CATP will mean that if a person is entitled to treatment under the VEA for a service injury or NLHC cancer treatment and they become eligible for treatment under MRCA then all their treatment from that point is provided under the MRCA and their VEA treatment eligibility ceases.
While Section 117 notes that the person will become entitled to receive their treatment under the MRCA, there is currently no equivalent to VEA Section 85 in the MRCA nor any non-liability arrangement for cancer and TB treatment under that Act. To avoid any unintended loss of entitlement arising from the application of CATP Section 117 a new non-liability cancer and TB instrument under the new Section 284A of the MRCA will ensure that the existing non-liability cancer and TB coverage can continue to be provided under that Act.
New section 284A of the MRCA enables the Commission to determine that persons in a specified class are eligible to receive treatment of a specified kind. This allows for instrument to be made that will provide for non-liability treatment under the MRCA.
As the MRCA will constitute the single ongoing Act going forward for veterans’ compensation and rehabilitation benefits, it follows that the provision of treatment on a non-liability basis should be aligned with the attribution of expenditure associated with the treatment of war- and defence-caused injuries.
The instrument under s 284A provides and preserves treatment eligibility for malignant neoplasia and pulmonary tuberculosis to those who meet the VEA definition of veteran and will achieve the desired outcome of providing for this treatment under MRCA. Cohorts covered will be the same as the existing VEA non-liability cancer and TB treatment coverage and will include veterans with:
- Eligible war service in the Second World War
- Operational Service
- Declared Warlike and Non-Warlike Service
- Declared Peacekeeping Service
- Declared Hazardous Service
- British Nuclear Test Defence Service
- Certain defined types of peacetime service rendered between 7 December 1972 and 6 April 1994 as defined in the VEA.
EXPLANATION OF PROVISIONS
Section 1 states the name of the Instrument.
Section 2 provides that the Instrument commences on 1 July 2026.
Section 3 sets out the authority for making the Instrument, namely section 284A(1)(a) and (d) of the Act.
Section 4 provides the definitions used in the instrument.
Section 5 provides the specified class of person who is eligible for the specified treatment.
Section 6 provides how a request for treatment is to be made.
Section 7 provides the specified type of treatment that can be provided for malignant neoplasia or pulmonary tuberculosis.
Section 8 provides the transitional matters if a request for treatment for the specified condition that was received by the Department prior to the commencement of this instrument.
Section 9 provides for the backdating of treatment for a person who is eligible, for the specified condition to include the date that is 3 months before the request under section 6 is received by the Department.
Consultation
In relation to the VETS Act, DVA undertook extensive consultation with stakeholders, including three rounds of public consultation on the simplification and harmonisation of veterans’ portfolio legislation. The outcome of this process revealed strong support from veterans and other stakeholders and informed the pathway to establish an improved MRCA as the sole, ongoing scheme for veterans’ compensation and rehabilitation from 1 July 2026.
To support the VETS Act commencing on 1 July 2026, the new section 284A of MRCA enables the Commission to determine circumstances where treatment entitlement may arise and specify the kind of treatment that can be provided. Section 284A contains equivalent powers to section 88A of the VEA and enables the Commission’s to make an instrument under the MRCA to provide for non-liability treatment arrangements.
Documents incorporated by reference
N/A
Human rights implications
This instrument is compatible with the human rights and freedoms recognised or declared under section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. A full statement of compatibility is set out in Attachment A.
Making the instrument
The instrument is made by the Commission.
Approved by
Military Rehabilitation and Compensation Commission
Rule-maker
Attachment A
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Military Rehabilitation and Compensation (Access to Non-Liability Health Care for Malignant Neoplasia and Pulmonary Tuberculosis Treatment) Determination 2026
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 (the recognised rights).
Overview of the Disallowable Legislative Instrument
The Military Rehabilitation and Compensation (Access to Non-Liability Health Care for Malignant Neoplasia and Pulmonary Tuberculosis Treatment) Determination 2026 provides non-liability treatment eligibility for malignant neoplasia and pulmonary tuberculosis to those who meet the VEA definition of veteran. This ensures continuity of existing treatment coverage under the MRCA.
Human rights implications
This written determination 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, and specifically engages with the right to health, under article 12.1 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).
The right to health is the right to the enjoyment of the highest attainable standard of physical and mental health.
The VEA and MRCA make provision for the medical treatment for eligible veterans, serving and former members of the Australian Defence Force and their dependents. The instrument will ensure continuity of the current eligibility for non-liability cancer and tuberculosis treatment for certain cohorts of veterans, in conduction with other rights and eligibilities under veterans’ legislation.
Conclusion
The Instrument is compatible with human rights. It advances the right to health.
Military Rehabilitation and Compensation Commission
Rule-Maker