EXPLANATORY STATEMENT
STATEMENT OF PRINCIPLES CONCERNING
CHRONIC OBSTRUCTIVE PULMONARY DISEASE
(BALANCE OF PROBABILITIES) (NO. 18 OF 2023)
VETERANS' ENTITLEMENTS ACT 1986
MILITARY REHABILITATION AND COMPENSATION ACT 2004
- This is the Explanatory Statement to the Statement of Principles concerning chronic obstructive pulmonary disease (Balance of Probabilities) (No. 18 of 2023).
Background
2. The Repatriation Medical Authority (the Authority), under subsection 196B(8) of the Veterans' Entitlements Act 1986 (the VEA), repeals Instrument No. 38 of 2014 (Federal Register of Legislation No. F2014L00475) determined under subsections 196B(3) and (8) of the VEA concerning chronic obstructive pulmonary disease.
3. The Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that chronic obstructive pulmonary disease and death from chronic obstructive pulmonary disease 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 chronic obstructive pulmonary disease (Balance of Probabilities) (No. 18 of 2023). This Instrument will in effect replace the repealed Statement of Principles.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, chronic obstructive pulmonary disease or death from chronic obstructive pulmonary disease 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 2 November 2021 concerning chronic obstructive pulmonary disease 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 'chronic obstructive pulmonary disease' in subsection 7(2);
- including ICD-10-AM codes for 'chronic obstructive pulmonary disease' in subsection 7(3);
- revising the reference to 'ICD-10-AM code' in subsection 7(4);
- revising the factor in subsection 9(1) and 9(14) concerning having smoked tobacco products;
- revising the factor in subsection 9(2) and 9(15) concerning being exposed to second-hand smoke;
- revising the factor in subsection 9(3) and 9(16) concerning having smoked cannabis;
- revising the factor in subsection 9(4) and 9(17) concerning inhaling smoke from the combustion of polluting fuels in an enclosed space;
- revising the factor in subsection 9(5) and 9(18) concerning inhaling a respiratory tract irritant from the specified list of respiratory tract irritants;
- revising the factor in subsection 9(6) and 9(19) concerning inhaling vapour, gas, or fumes of a substance from the specified list of substances in an enclosed space;
- revising the factor in subsection 9(7) and 9(20) concerning inhaling vapour, gas, or fumes of a substance from the specified list of substances, in an open environment;
- revising the factor in subsection 9(8) and 9(21) concerning inhaling organic or inorganic dust at a concentration of greater than 5 milligrams per cubic metre;
- revising the factor in subsection 9(9) and 9(22) concerning having infection with human immunodeficiency virus;
- revising the factor in subsection 9(10) and 9(24) concerning having pulmonary tuberculosis;
- new factor in subsection 9(11) and 9(25) concerning having alpha-1 antitrypsin deficiency;
- new factor in subsection 9(12) and 9(26) concerning having asthma;
- new factor in subsection 9(13) and 9(27) concerning having bronchiectasis;
- new factor in subsection 9(23) concerning having at least 4 episodes of acute viral or bacterial lower respiratory tract infection requiring medical treatment;
- new factor in subsection 9(28) concerning having gastro-oesophageal reflux disease;
- new definitions of 'being exposed to second hand smoke', 'lower respiratory tract', 'one pack-year', 'persistent airflow limitation', 'polluting fuels', and 'pulmonary tuberculosis'. in Schedule 1 - Dictionary; and
- revising the definitions of 'dust', 'specified list of respiratory tract irritants', and 'specified list of substances' in Schedule 1 – Dictionary.
Consultation
8. Prior to determining this Instrument, the Authority advertised its intention to undertake an investigation in relation to chronic obstructive pulmonary disease in the Government Notices Gazette of 2 November 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.
9. On 25 October 2022, 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 an update to the definition of "dust" to exclude "wood dust". 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
10. 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
11. The determining of this Instrument finalises the investigation in relation to chronic obstructive pulmonary disease as advertised in the Government Notices Gazette of 2 November 2021.
References
12. 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. 18 of 2023
Kind of Injury, Disease or Death: Chronic obstructive pulmonary disease
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 chronic obstructive pulmonary disease;
- 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, chronic obstructive pulmonary disease 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. 38 of 2014; and
- reflects developments in the available sound medical-scientific evidence concerning chronic obstructive pulmonary disease 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.