Statement of Principles concerning cluster headache (Balance of Probabilities) (No. 58 of 2018)

Administered by Department of Veterans' Affairs

Legislation au F2018L00903 In force Legislative Instrument

Legislation content

EXPLANATORY STATEMENT

 

STATEMENT OF PRINCIPLES CONCERNING

CLUSTER HEADACHE

(BALANCE OF PROBABILITIES) (NO. 58 OF 2018)

 

VETERANS' ENTITLEMENTS ACT 1986

MILITARY REHABILITATION AND COMPENSATION ACT 2004

 

  1. This is the Explanatory Statement to the Statement of Principles concerning cluster headache (Balance of Probabilities) (No. 58 of 2018).

Background

2.             The Repatriation Medical Authority (the Authority), under subsection 196B(8) of the Veterans' Entitlements Act 1986 (the VEA), repeals Instrument No. 21 of 2010 (Federal Register of Legislation No. F2010L01037) determined under subsection 196B(3) of the VEA concerning cluster headache.

3.             The Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that cluster headache and death from cluster headache 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 cluster headache (Balance of Probabilities) (No. 58 of 2018).  This Instrument will in effect replace the repealed Statement of Principles.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, cluster headache or death from cluster headache 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 14 November 2017 concerning cluster headache 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 'cluster headache' in subsection 7(2);
  • revising the reference to 'ICD-10-AM code' in subsection 7(4);
  • revising the factor in subsection 9(1) concerning 'taking glyceryl trinitrate, isosorbide mononitrate or isosorbide dinitrate', for clinical worsening only;
  • new factor in subsection 9(2) concerning 'consuming alcohol', for clinical worsening only;
  • 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 cluster headache in the Government Notices Gazette of 14 November 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 Instrument finalises the investigation in relation to cluster headache as advertised in the Government Notices Gazette of 14 November 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. 58 of 2018

Kind of Injury, Disease or Death: Cluster headache

 

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 cluster headache;
  • 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, cluster headache 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. 21 of 2010; and
  • reflects developments in the available sound medical-scientific evidence concerning cluster headache 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, 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 cluster headache (Balance of Probabilities) (No. 58 of 2018) was enacted to address the need for a comprehensive understanding and assessment of cluster headaches in the context of veterans' and military personnel's service, as determined by the Repatriation Medical Authority under the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004. This legislative instrument replaces the previously repealed Instrument No. 21 of 2010 and aims to ensure that claims for compensation and medical treatment related to cluster headaches are assessed based on the most current medical-scientific evidence. The Authority concluded that there is sufficient evidence to suggest a probable connection between cluster headaches and certain types of military service, thereby facilitating the claims process for affected veterans and service members. The instrument outlines the specific circumstances and factors that must exist for a claim to be substantiated, thereby providing clarity and consistency in the assessment and determination of entitlements under both acts. The policy objective of this legislative instrument is to ensure that veterans, current and former Defence Force members, and their dependents receive appropriate social security benefits and medical treatment when their cluster headaches are connected to their service. This is achieved by setting out the sound medical-scientific evidence required to establish a link between the condition and the service rendered, thus promoting the right to social security, an adequate standard of living, and the highest attainable standard of physical and mental health. The instrument also ensures that these rights are exercised without discrimination, in line with the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of Persons with Disabilities.

Scope and Application

The Statement of Principles concerning cluster headache (Balance of Probabilities) (No. 58 of 2018) applies to individuals who have served in the Australian Defence Force and are claiming benefits or compensation under the Veterans' Entitlements Act 1986 or the Military Rehabilitation and Compensation Act 2004. It pertains to veterans, current and former Defence Force members, and their dependents who have been diagnosed with cluster headache or claim to have suffered death from cluster headache, and need to establish a link between their condition and their service to qualify for benefits. The Statement of Principles specifies the circumstances and factors that must be considered to determine the connection between cluster headache and service, thereby facilitating the assessment of claims and the provision of compensation and medical treatment. The legislation is applicable nationally, covering all eligible individuals across Australia. The application of this Act is not restricted by geographical boundaries or state jurisdictions, as it operates under the authority of Commonwealth legislation. There are no stated exclusions, exemptions, or specific thresholds mentioned in the text, though the determination of a connection between service and cluster headache is contingent upon the balance of probabilities based on available medical-scientific evidence. The application of the Act may be extended or restricted through subordinate instruments, which are not detailed in the provided text.

Key Provisions

The Statement of Principles concerning cluster headache (Balance of Probabilities) (No. 58 of 2018), as determined by the Repatriation Medical Authority, provides a framework for assessing claims related to cluster headache under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA). This Statement of Principles replaces the previous Instrument No. 21 of 2010 and incorporates updated medical-scientific evidence regarding cluster headache. The primary purpose of this legislative instrument is to specify the circumstances under which cluster headache and death from cluster headache can be considered connected to particular types of military service (subsection 5). This involves detailing the factors that must exist and be related to eligible war service, defence service, or peacetime service, depending on the context of the claim under the VEA or MRCA. The obligations imposed by the Statement of Principles require claimants to demonstrate that their cluster headache or death from cluster headache is connected to their service, as outlined in the document. This involves presenting evidence that satisfies the specified factors indicating a link to the service rendered. The Statement of Principles also outlines the responsibilities of the Repatriation Commission in assessing these claims, ensuring that they are conducted in a manner that is consistent with the medical-scientific evidence and the principles set forth in the legislation. The legislation includes provisions for penalties and consequences in the event of non-compliance or breaches of the requirements set out in the Statement of Principles. While the document does not explicitly detail the specific penalties, it is implied that failure to adhere to the stipulated guidelines and evidence requirements could result in the denial of claims for compensation or medical treatment. Under the VEA and MRCA, there may be further legal or administrative consequences for providing false or misleading information, which could lead to civil or criminal penalties. The precise nature and extent of these penalties would typically be governed by the relevant sections of the VEA and MRCA, which are not detailed in this explanatory statement.

Legal classification tags

Area of Law
Veterans' Law
Instrument
Regulation
Concepts
Definitions & Interpretation
Offence Provisions
Reporting & Disclosure Obligations
Catchwords
Statement of Principles

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.