Statement of Principles concerning benign paroxysmal positional vertigo (Balance of Probabilities) (No. 57 of 2017)

Administered by Department of Veterans' Affairs

Legislation au F2017L01051 Not in force Legislative Instrument

Legislation content

EXPLANATORY STATEMENT

 

Statement of Principles concerning

BENIGN PAROXYSMAL POSITIONAL VERTIGO

(Balance of PROBABILITIES) (NO. 57 OF 2017)

 

VETERANS' ENTITLEMENTS ACT 1986

MILITARY REHABILITATION AND COMPENSATION ACT 2004

 

  1. This is the Explanatory Statement to the Statement of Principles concerning benign paroxysmal positional vertigo (Balance of Probabilities) (No. 57 of 2017).

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 benign paroxysmal positional vertigo (Balance of Probabilities) (No. 57 of 2017).

3.             The Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that benign paroxysmal positional vertigo and death from benign paroxysmal positional vertigo can be related to particular kinds of service.  The Authority has therefore determined this Statement of Principles concerning benign paroxysmal positional vertigo 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, benign paroxysmal positional vertigo or death from benign paroxysmal positional vertigo 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 benign paroxysmal positional vertigo or death from benign paroxysmal positional vertigo 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 10 January 2017 concerning benign paroxysmal positional vertigo 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 benign paroxysmal positional vertigo in the Government Notices Gazette of 10 January 2017, 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.  No submissions were 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 benign paroxysmal positional vertigo as advertised in the Government Notices Gazette of 10 January 2017.

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. 57 of 2017

Kind of Injury, Disease or Death: Benign paroxysmal positional vertigo

 

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 benign paroxysmal positional vertigo;
  • 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, benign paroxysmal positional vertigo 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 benign paroxysmal positional vertigo (Balance of Probabilities) (No. 57 of 2017) was determined by the Repatriation Medical Authority under the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004. This Statement of Principles addresses the gap in the existing legislative framework concerning the connection between benign paroxysmal positional vertigo, or death from such vertigo, and service rendered by veterans and service personnel. It establishes the factors that must exist for such conditions to be considered connected to particular kinds of service, facilitating the assessment and determination of claims for compensation and treatment under the respective Acts. The purpose of this legislative instrument is to ensure that the determination of such claims is based on sound medical-scientific evidence, thereby promoting the human rights of veterans, current and former Defence Force members, and their dependents, including their rights to social security and an adequate standard of living. The Statement of Principles ensures that claims made on or after 1 June 1994 under the VEA and 1 July 2004 under the MRCA must be upheld by this instrument to be accepted by the relevant authorities.

Scope and Application

The Statement of Principles concerning benign paroxysmal positional vertigo (Balance of Probabilities) (No. 57 of 2017), determined by the Repatriation Medical Authority under the Veterans' Entitlements Act 1986 (VEA) and applicable under the Military Rehabilitation and Compensation Act 2004 (MRCA), applies to claims related to benign paroxysmal positional vertigo (BPPV) lodged on or after 1 June 1994 under the VEA and 1 July 2004 under the MRCA. This Statement of Principles delineates the specific factors that must exist and be related to eligible war service, defence service, and peacetime service to establish a connection between BPPV and the service circumstances on the balance of probabilities. The legislation is designed to facilitate the assessment and review of claims by specifying the circumstances under which medical treatment and compensation can be granted to eligible persons suffering from BPPV. It is compatible with human rights as it does not derogate from and promotes the rights of veterans, current and former Defence Force members, and their dependents. No exclusions or exemptions are explicitly stated in the text, but the determination of the claim hinges on the fulfilment of the outlined factors and the available sound medical-scientific evidence.

Key Provisions

The primary sections of the Statement of Principles concerning benign paroxysmal positional vertigo (Balance of Probabilities) (No. 57 of 2017) are those that determine the connection between benign paroxysmal positional vertigo and specific kinds of service under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA). Section 5 of the explanatory statement outlines the factors that must exist for a claim to be considered valid, such as the service rendered being eligible war service, defence service, or peacetime service. These factors must be linked to the onset of benign paroxysmal positional vertigo or death from this condition for a claim to be upheld. The Statement of Principles also specifies that any claim for pension or compensation related to benign paroxysmal positional vertigo or death from it, lodged after 1 June 1994 under the VEA or after 1 July 2004 under the MRCA, must be supported by this Statement of Principles (subsections 120B(3) and 339(3)). The Statement of Principles imposes certain obligations and requirements on both claimants and the authorities responsible for assessing claims. Claimants must provide evidence that aligns with the specified factors outlined in the Statement of Principles, such as demonstrating a connection between their service and the onset of benign paroxysmal positional vertigo. The authorities, including the Repatriation Commission and Military Rehabilitation and Compensation Commission, are required to apply this Statement of Principles when assessing claims and to reject any claims that do not meet the criteria set forth. Additionally, the Veterans' Review Board and Administrative Appeals Tribunal must also adhere to these principles when reviewing decisions related to claims. Breaches of the requirements set out in the Statement of Principles can lead to specific consequences. For example, claims that do not meet the criteria outlined in the Statement of Principles will not be accepted for processing under the VEA or MRCA. The Statement of Principles does not explicitly detail criminal or civil penalties for non-compliance, but failure to adhere to the principles could result in the denial of benefits or compensation. The overarching objective is to ensure that only valid claims, supported by sound medical-scientific evidence, are processed and approved.

Legal classification tags

Area of Law
Veterans' Law
Instrument
Statutory Instrument
Concepts
Definitions & Interpretation
Regulatory Standards
Consultation Requirements

Interactions

Authorises

All Versions

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.