Statement of Principles concerning Barrett's oesophagus (Balance of Probabilities) (No. 68 of 2016)

Administered by Department of Veterans' Affairs

Legislation au F2016L01137 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

Statement of Principles concerning

BARRETT'S OESOPHAGUS

(Balance of PROBABILITIES) (NO. 68 OF 2016)

 

VETERANS’ ENTITLEMENTS ACT 1986

MILITARY REHABILITATION AND COMPENSATION ACT 2004

 

  1. This is the Explanatory Statement to the Statement of Principles concerning Barrett's oesophagus (Balance of Probabilities) (No. 68 of 2016).

Background

2.             The Repatriation Medical Authority (the Authority) has determined, under subsection 196B(3) of the Veterans’ Entitlements Act 1986 (the VEA), Statement of Principles concerning Barrett's oesophagus (Balance of Probabilities) (No. 68 of 2016).

3.             The Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that Barrett's oesophagus and death from Barrett's oesophagus can be related to particular kinds of service.  The Authority has therefore determined this Statement of Principles concerning Barrett's oesophagus pursuant to subsection 196B(3) of the VEA.

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, Barrett's oesophagus or death from Barrett's oesophagus 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.             The Repatriation Commission, Military Rehabilitation and Compensation Commission, Veterans’ Review Board or Administrative Appeals Tribunal cannot accept any claim for pension; or a claim for liability or compensation relating to Barrett's oesophagus or death from Barrett's oesophagus that was lodged on or after 1 June 1994 in the case of the VEA, or 1 July 2004 in the case of the MRCA respectively, unless this Statement of Principles upholds that claim (subsection 120B(3) of the VEA or subsection 339(3) of the MRCA).

7.             This new Instrument results from an investigation notified by the Authority in the Government Notices Gazette of 1 September 2015 concerning Barrett's oesophagus in accordance with section 196G of the VEA.  The investigation involved an examination of the sound medical-scientific evidence available to the Authority.

Consultation

8.             Prior to determining this Instrument, the Authority advertised its intention to undertake an investigation in relation to Barrett's oesophagus in the Government Notices Gazette of 1 September 2015, 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, 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 during 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 new Instrument finalises the investigation in relation to Barrett's oesophagus as advertised in the Government Notices Gazette of 1 September 2015.

References

11.         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.:   Statement of Principles No. 68 of 2016

Kind of Injury, Disease or Death: Barrett's oesophagus

 

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(8) 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 linking 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 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 Barrett's oesophagus;
  • facilitates the review of such decisions by the Veterans' Review Board and the Administrative Appeals Tribunal; and
  • outlines the factors which the current sound medical-scientific evidence indicates must exist before it can be said that, on the balance of probabilities, Barrett's oesophagus is connected with the circumstances of eligible service rendered by a person, as set out in clause 5 of the Explanatory Statement.

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 Statement of Principles concerning Barrett's Oesophagus (Balance of Probabilities) (No. 68 of 2016) was enacted to address the need for a clear and evidence-based framework for determining the connection between Barrett's oesophagus and military service under the Veterans’ Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA). This legislative instrument was determined by the Repatriation Medical Authority, based on the available sound medical-scientific evidence, to clarify the factors that must be present for a connection to be established on the balance of probabilities. The policy objective is to facilitate both the making and reviewing of claims for pension and compensation related to Barrett's oesophagus, ensuring that the qualifying conditions for benefits are reasonable, proportionate, and transparent, thereby promoting the human rights of veterans, current and former Defence Force members, and their dependents. The Statement of Principles outlines the specific circumstances under which Barrett's oesophagus can be considered connected to military service, thereby guiding the Repatriation Commission, Military Rehabilitation and Compensation Commission, Veterans’ Review Board, and Administrative Appeals Tribunal in their assessments and decisions. By finalising the investigation into Barrett's oesophagus and specifying the required factors, this legislative instrument aims to enhance the medico-scientific quality of outcomes under the VEA and the MRCA, ensuring that claimants receive fair and appropriate compensation and medical treatment.

Scope and Application

The Statement of Principles concerning Barrett's oesophagus (Balance of Probabilities) (No. 68 of 2016) applies to claims made under the Veterans’ Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA) for Barrett's oesophagus, which is a condition that can develop as a result of gastroesophageal reflux disease and is linked to an increased risk of oesophageal cancer. The Act applies to individuals who have served in eligible war service, defence service, or peacetime service, as defined by the respective Acts, and who have developed Barrett's oesophagus or died from it. The geographic reach of this Act is Commonwealth, as it pertains to federal legislation concerning veterans' entitlements and military rehabilitation. Any claims for pension or compensation regarding Barrett's oesophagus or death from it lodged after 1 June 1994 under the VEA or 1 July 2004 under the MRCA must be upheld by this Statement of Principles for the respective claims to be accepted. The Act does not explicitly mention exclusions, exemptions, or thresholds but requires that the claims meet the specific criteria outlined in the Statement of Principles. The application and interpretation of this Act can be further extended or restricted through subordinate instruments, which would provide more detailed guidance on the implementation and administration of the legislation.

Key Provisions

The Statement of Principles concerning Barrett's oesophagus (Balance of Probabilities) (No. 68 of 2016) outlines the criteria that must be met for claims related to Barrett's oesophagus to be considered under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA). Specifically, the Statement of Principles sets out the factors that must exist and be related to certain types of service, including eligible war service, defence service, and peacetime service, before it can be said that, on the balance of probabilities, Barrett's oesophagus or death from Barrett's oesophagus is connected with the circumstances of that service (section 5). Any claim for pension or compensation related to Barrett's oesophagus or death from Barrett's oesophagus that was lodged after 1 June 1994 under the VEA, or 1 July 2004 under the MRCA, cannot be accepted unless the Statement of Principles upholds that claim (subsection 120B(3) of the VEA and subsection 339(3) of the MRCA). The Statement of Principles was determined based on an investigation into the available sound medical-scientific evidence, as required by the VEA. The Act imposes several obligations on parties involved in claims for benefits related to Barrett's oesophagus. Claimants must ensure that their claims meet the criteria outlined in the Statement of Principles, including the existence of specific factors related to their service. The Repatriation Commission and Military Rehabilitation and Compensation Commission are required to assess claims based on these criteria. The Veterans' Review Board and the Administrative Appeals Tribunal must review decisions made under the Act, ensuring that the Statement of Principles is correctly applied. All parties are expected to adhere to the guidelines and evidence standards set forth in the Statement of Principles to maintain the integrity and fairness of the claims process. Breaches of the provisions outlined in the Statement of Principles can lead to various legal consequences. Under the VEA and MRCA, any claim that does not meet the criteria specified in the Statement of Principles will not be accepted, and any benefits already granted based on such a claim may be subject to review and potential revocation. Additionally, if there is evidence of fraudulent claims or misrepresentation of facts, individuals may face civil or criminal penalties. The maximum penalties for such offences can include fines and imprisonment, depending on the severity of the breach and the specific provisions of the VEA and MRCA. It is crucial for all parties to comply with the requirements of the Act to avoid these potential consequences.

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