Statement of Principles concerning Achilles tendinopathy (Balance of Probabilities) (No. 87 of 2024)

Administered by Department of Veterans' Affairs

Legislation au F2024L01338 In force Legislative Instrument

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EXPLANATORY STATEMENT

 

STATEMENT OF PRINCIPLES CONCERNING

ACHILLES TENDINOPATHY

(BALANCE OF PROBABILITIES) (NO. 87 OF 2024)

 

VETERANS' ENTITLEMENTS ACT 1986

MILITARY REHABILITATION AND COMPENSATION ACT 2004

 

  1.              This is the Explanatory Statement to the Statement of Principles concerning Achilles tendinopathy (Balance of Probabilities) (No. 87 of 2024).

Background

  1.              The Repatriation Medical Authority (the Authority), under subsection 196B(8) of the Veterans' Entitlements Act 1986 (the VEA), repeals Instrument No. 97 of 2015 (Federal Register of Legislation No. F2015L01337) determined under subsection 196B(3) of the VEA concerning Achilles tendinopathy and bursitis.
  2.              The Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that Achilles tendinopathy and death from Achilles tendinopathy can be related to particular kinds of service.  The Authority has therefore determined pursuant to subsection 196B(3) of the VEA a Statement of Principles concerning Achilles tendinopathy (Balance of Probabilities) (No. 87 of 2024).  This Instrument will in effect replace the repealed Statement of Principles.

Purpose and Operation

  1.              The Statement of Principles will be applied in determining claims under the VEA and the Military Rehabilitation and Compensation Act 2004 (the MRCA).
  2.              The Statement of Principles sets out the factors that must exist, and which of those factors must be related to the following kinds of service rendered by a person:

 eligible war service (other than operational service) under the VEA;

 defence service (other than hazardous service and British nuclear test defence service) under the VEA;

 peacetime service under the MRCA,

before it can be said that, on the balance of probabilities, Achilles tendinopathy or death from Achilles tendinopathy is connected with the circumstances of that service.  The Statement of Principles has been determined for the purposes of both the VEA and the MRCA.

  1.              This Instrument results from an investigation notified by the Authority in the Government Notices Gazette of 1 November 2022 concerning Achilles tendinopathy and bursitis in accordance with section 196G of the VEA.  The investigation involved an examination of the sound medical-scientific evidence now available to the Authority, including the sound medical-scientific evidence it has previously considered.
  2.              The contents of this Instrument are in similar terms as the repealed Instrument.  Comparing this Instrument and the repealed Instrument, the differences include:
  • specifying a day of commencement for the Instrument in section 2;
  • revising the definition of 'Achilles tendinopathy' in subsection 7(2);
  • revising the factor in subsection 9(2) concerning undertaking weight bearing exercise;
  • revising the factor in subsection 9(3) concerning increasing the frequency, duration or intensity of activity involving the ankle joint;
  • revising the factor in subsection 9(4) concerning having one or more of the following conditions involving the affected lower limb;
  • deleting pes plan, pes cavus, lateral ankle instability from the definition of significant biomechanical abnormality;
  • revising the factor in subsection 9(5) concerning having one of the following systemic arthritic diseases;
  • revising the factor in subsection 9(6) concerning being treated with fluoroquinolone antibiotic;
  • revising the factor in subsection 9(8) concerning having a glucocorticoid injection;
  • revising the factor in subsection 9(9) concerning being treated with an aromatase inhibitor;
  • revising the factor in subsection 9(10) concerning having a Body Mass Index (BMI) of 30 of greater;
  • revising the definition of 'glucocorticoid drug as specified in Schedule 1 - Dictionary; and
  • deleting the definitions of 'being obese', 'crystal-induced arthropathy', 'MET', 'significant biomechanical abnormality' and 'specified list of systemic arthritic diseases'.

Consultation

  1.              Prior to determining this Instrument, the Authority advertised its intention to undertake an investigation in relation to Achilles tendinopathy and bursitis in the Government Notices Gazette of 1 November 2022, 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.  No submissions were received for consideration by the Authority in relation to the investigation.
  2.              On 2 August 2024, the Authority wrote to organisations representing veterans, service personnel and their dependants regarding the proposed Instrument and the medical-scientific material considered by the Authority.  This letter emphasised the deletion of pes plan, pes cavus, lateral ankle instability from the definition of significant biomechanical abnormality.  The Authority provided an opportunity to the organisations to make representations in relation to the proposed Instrument prior to its determination.  No submissions were received for consideration by the Authority.  No changes were made to the proposed Instrument following this consultation process.

Human Rights

  1.          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

  1.          The determining of this Instrument finalises the investigation in relation to Achilles tendinopathy and bursitis as advertised in the Government Notices Gazette of 1 November 2022.

References

  1.          A list of references relating to the above condition is available on the Authority's website at: www.rma.gov.au. Any other document referred to in this Statement of Principles is available on request to the Repatriation Medical Authority at the following address:

              

Email:    info@rma.gov.au

Post:      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.:   Statement of Principles No. 87 of 2024

Kind of Injury, Disease or Death: Achilles tendinopathy

 

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:-

  • facilitates claimants in making, and the Repatriation Commission and the Military Rehabilitation and Compensation 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 Achilles tendinopathy;
  • facilitates the review of such decisions by the Veterans' Review Board and the Administrative Appeals Tribunal;
  • outlines the factors which the current sound medical-scientific evidence indicates must exist before it can be said that, on the balance of probabilities, Achilles tendinopathy is connected with the circumstances of eligible service rendered by a person, as set out in clause 5 of the Explanatory Statement;
  • replaces Instrument No. 97 of 2015; and
  • reflects developments in the available sound medical-scientific evidence concerning Achilles tendinopathy 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, ICESCR; 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, ICESCR 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 Statement of Principles concerning Achilles tendinopathy (Balance of Probabilities) (No. 87 of 2024) was enacted in 2024 by the Repatriation Medical Authority under the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004. This legislation addresses the gap in the existing legal framework by updating the medical criteria for determining whether Achilles tendinopathy or death from Achilles tendinopathy is connected to certain kinds of service, based on the latest medical-scientific evidence. This Statement of Principles replaces the previous Instrument No. 97 of 2015, which has been repealed. The primary objective of this legislation is to facilitate the assessment and determination of claims for medical treatment and compensation related to Achilles tendinopathy, ensuring that the qualifying conditions for these benefits are reasonable, proportionate, and transparent, thereby promoting the human rights of veterans and Defence Force members. This legislative instrument ensures that claimants can more effectively access the benefits to which they are entitled and that their claims are assessed based on sound medical-scientific evidence. By specifying the factors that must exist for a connection to be established between Achilles tendinopathy and certain types of service, the legislation supports the provision of appropriate medical treatment and compensation, while also enhancing the review processes by the Veterans' Review Board and the Administrative Appeals Tribunal.

Scope and Application

The Statement of Principles concerning Achilles tendinopathy (Balance of Probabilities) (No. 87 of 2024) applies to individuals who have rendered eligible war service, defence service, or peacetime service under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA). The Act sets out the circumstances under which Achilles tendinopathy or death from Achilles tendinopathy can be deemed connected to the service rendered by a person, on the balance of probabilities, by detailing specific factors and conditions that must be present. This includes factors such as engaging in weight-bearing exercises, having certain conditions involving the lower limb, or being treated with specific medications. The principles outlined in this Instrument replace the previous Statement of Principles No. 97 of 2015 and are intended to reflect the latest sound medical-scientific evidence available. The application of these principles facilitates the assessment and determination of claims for compensation and medical treatment under the VEA and MRCA, and ensures that these claims are evaluated based on the most current medical understanding of the condition. The Instrument is applicable nationally within Australia, as it is determined under the Commonwealth legislation. The Instrument’s provisions are designed to assist claimants in making, and the relevant Commissions in assessing, claims for benefits under the VEA and MRCA. It also outlines the factors which the available sound medical-scientific evidence indicates must exist for Achilles tendinopathy to be connected with the circumstances of eligible service. There are no stated exclusions, exemptions, or thresholds in this Instrument, but it does extend its application through the specification of relevant factors and conditions. Subordinate instruments may further refine the application of these principles as necessary, ensuring that the Instrument remains aligned with evolving medical-scientific evidence and legislative requirements.

Key Provisions

The main operative sections of the Statement of Principles concerning Achilles tendinopathy (Balance of Probabilities) (No. 87 of 2024) include the repeal of Instrument No. 97 of 2015 and the introduction of new definitions and factors related to Achilles tendinopathy (sections 2 and 7). The Statement of Principles outlines the specific circumstances under which Achilles tendinopathy or death from Achilles tendinopathy is deemed to be connected with eligible service rendered by a person, such as eligible war service, defence service, or peacetime service (section 9). This determination is based on the balance of probabilities, using the available sound medical-scientific evidence. The obligations and requirements imposed by the Act on parties and entities it governs include the necessity for claimants to provide evidence that their Achilles tendinopathy meets the criteria set out in the Statement of Principles. This involves demonstrating a connection between their condition and specific service-related factors. The Repatriation Commission and the Military Rehabilitation and Compensation Commission must assess claims in accordance with these criteria, ensuring that the claims process is transparent and based on sound medical-scientific evidence. The Veterans' Review Board and the Administrative Appeals Tribunal are required to review decisions made under the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004 in light of these principles. The Statement of Principles also imposes penalties and consequences for non-compliance with the provisions outlined in the Act. While the specific offences, penalties, and consequences are not detailed in the Explanatory Statement, the general framework of the Acts implies that failure to adhere to the determinations of the Repatriation Medical Authority could lead to the denial of claims. This could result in significant hardship for veterans and service personnel who rely on these benefits. Furthermore, any misrepresentation or fraudulent claims could attract criminal penalties, including fines and imprisonment, as stipulated under the respective Acts. The exact penalties would be in line with the broader legislative framework governing veterans' entitlements and military rehabilitation and compensation.

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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.