Statement of Principles concerning asbestosis (Balance of Probabilities) (No. 60 of 2021)

Administered by Department of Veterans' Affairs

Legislation au F2021L00606 In force Legislative Instrument

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EXPLANATORY STATEMENT

 

STATEMENT OF PRINCIPLES CONCERNING

ASBESTOSIS

(BALANCE OF PROBABILITIES) (NO. 60 OF 2021)

 

VETERANS' ENTITLEMENTS ACT 1986

MILITARY REHABILITATION AND COMPENSATION ACT 2004

 

  1. This is the Explanatory Statement to the Statement of Principles concerning asbestosis (Balance of Probabilities) (No. 60 of 2021).

Background

2.             The Repatriation Medical Authority (the Authority), under subsection 196B(8) of the Veterans' Entitlements Act 1986 (the VEA), repeals Instrument No. 56 of 2013 (Federal Register of Legislation No. F2013L01644) determined under subsection 196B(3) of the VEA concerning asbestosis.

3.             The Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that asbestosis and death from asbestosis 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 asbestosis (Balance of Probabilities) (No. 60 of 2021).  This Instrument will in effect replace the repealed Statement of Principles.

Purpose and Operation

4.             The Statement of Principles will be applied in determining claims under the VEA and the Military Rehabilitation and Compensation Act 2004 (the MRCA).

5.             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, asbestosis or death from asbestosis 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.

6.             This Instrument results from an investigation notified by the Authority in the Government Notices Gazette of 5 January 2021 concerning asbestosis 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.

7.             The contents of this Instrument are in similar terms as the repealed Instrument.  Comparing this Instrument and the repealed Instrument, the differences include:

  • adopting the latest revised Instrument format, which commenced in 2015;
  • specifying a day of commencement for the Instrument in section 2;
  • revising the definition of 'asbestosis' in subsection 7(2);
  • revising the reference to 'ICD-10-AM code' in subsection 7(4);
  • revising the factor in subsection 9(1) concerning inhaling respirable asbestos fibres in an enclosed space, for clinical onset;
  • revising the factor in subsection 9(2) concerning inhaling respirable asbestos fibres in an open environment, for clinical onset;
  • revising the factor in subsection 9(3) concerning inhaling respirable asbestos fibres, for clinical worsening;
  • new definitions of 'MRCA' and 'VEA' in Schedule 1 - Dictionary; and
  • revising the definition of 'relevant service' in Schedule 1 - Dictionary.

Consultation

8.             Prior to determining this Instrument, the Authority advertised its intention to undertake an investigation in relation to asbestosis in the Government Notices Gazette of 5 January 2021, 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.

Human Rights

9.             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

10.         The determining of this Instrument finalises the investigation in relation to asbestosis as advertised in the Government Notices Gazette of 5 January 2021.

References

11.         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. 60 of 2021

Kind of Injury, Disease or Death: Asbestosis

 

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 asbestosis;
  • 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, asbestosis 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. 56 of 2013; and
  • reflects developments in the available sound medical-scientific evidence concerning asbestosis 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 asbestosis (Balance of Probabilities) (No. 60 of 2021) was enacted in 2021 by the Repatriation Medical Authority (the Authority) under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA). This legislative instrument was introduced to address the problem of establishing a clear connection between asbestosis and certain types of military service, facilitating the assessment and approval of compensation claims for veterans and service members suffering from asbestosis. The Authority determined this Statement of Principles based on the latest available medical-scientific evidence, superseding the previous Instrument No. 56 of 2013. The primary objective of this legislative instrument is to specify the factors that must be present and related to particular kinds of service to establish a connection between asbestosis and the service rendered, thereby improving the medico-scientific quality of outcomes under the VEA and the MRCA. This instrument ensures that the qualifying conditions for benefits are reasonable, proportionate, and transparent, promoting various human rights, including the right to social security, the right to an adequate standard of living, and the right to the highest attainable standard of physical and mental health. It also ensures that these rights are exercised without discrimination. The Statement of Principles facilitates claimants in making and assessing claims under the VEA and the MRCA, as well as the review of such decisions by the Veterans' Review Board and the Administrative Appeals Tribunal. 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, and does not derogate from any human rights.

Scope and Application

The Statement of Principles concerning asbestosis (Balance of Probabilities) (No. 60 of 2021) is a legislative instrument determined by the Repatriation Medical Authority under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA). This Statement of Principles applies to veterans, service personnel, and their dependents who may claim benefits related to asbestosis. It specifies the circumstances and conditions under which asbestosis or death from asbestosis can be considered connected to eligible war service, defence service, and peacetime service, thereby qualifying for compensation and medical treatment under the VEA and MRCA. The Instrument repeals the previous Statement of Principles (Instrument No. 56 of 2013) and incorporates updated medical-scientific evidence, revised definitions, and factors concerning asbestosis. The geographical reach of the Act extends to the Commonwealth of Australia, impacting individuals who have served in the Australian Defence Force and are now eligible for benefits under the VEA and MRCA. The determination of this Instrument concludes the investigation into asbestosis, which was advertised in the Government Notices Gazette on 5 January 2021. Additionally, this Instrument is compatible with human rights, promoting rights such as social security, adequate living standards, and health, without derogation from any international human rights instruments.

Key Provisions

The Statement of Principles concerning asbestosis (Balance of Probabilities) (No. 60 of 2021) primarily establishes the criteria for determining whether asbestosis or death from asbestosis can be connected with particular kinds of service under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA). As per section 5 of the Explanatory Statement, these criteria must be met for claims to be assessed, ensuring that the connection between the service rendered and the condition is substantiated by sound medical-scientific evidence. The Statement of Principles details specific factors that must exist and be related to eligible war service, defence service, and peacetime service, as outlined in section 5. The obligations imposed on parties governed by this legislation include ensuring that all claims for compensation or benefits related to asbestosis are made in accordance with the criteria set out in the Statement of Principles. Claimants must provide evidence that satisfies the specified factors connecting their asbestosis to their service. The Repatriation Medical Authority and relevant Commissions are required to assess these claims based on the sound medical-scientific evidence provided. The Statement of Principles aims to facilitate a transparent and evidence-based process for determining eligibility for benefits under the VEA and MRCA. Breaches of the obligations outlined in this Statement of Principles may lead to legal consequences. Although specific offences and penalties are not detailed in the provided text, non-compliance with the criteria for determining asbestosis claims could result in the denial of benefits or compensation. Claimants providing false or misleading information may face civil or criminal consequences, as the process for assessing claims is designed to be rigorous and based on credible evidence. The penalties for providing false information could include fines, imprisonment, or both, depending on the severity of the breach and applicable laws.

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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.