Statement of Principles concerning concussion (Balance of Probabilities) (No. 93 of 2018)

Administered by Department of Veterans' Affairs

Legislation au F2018L01493 In force Legislative Instrument

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EXPLANATORY STATEMENT

 

STATEMENT OF PRINCIPLES CONCERNING

CONCUSSION

(BALANCE OF PROBABILITIES) (NO. 93 OF 2018)

 

VETERANS' ENTITLEMENTS ACT 1986

MILITARY REHABILITATION AND COMPENSATION ACT 2004

 

  1. This is the Explanatory Statement to the Statement of Principles concerning concussion (Balance of Probabilities) (No. 93 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. 65 of 2012 (Federal Register of Legislation No. F2012L01810) determined under subsection 196B(3) of the VEA concerning concussion.

3.             The Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that concussion and death from concussion 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 concussion (Balance of Probabilities) (No. 93 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  This Instrument will in effect replace the repealed Statement of Principles.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, concussion or death from concussion 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 9 January 2018 concerning concussion 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 'concussion' in subsection 7(2);
  • revising the factor in subsection 9(1) concerning 'experiencing a specified event';
  • new definitions of 'MRCA' and 'VEA' in Schedule 1 - Dictionary; and
  • revising the definition of 'specified event' in Schedule 1 – Dictionary.

Consultation

8.             Prior to determining this Instrument, the Authority advertised its intention to undertake an investigation in relation to concussion in the Government Notices Gazette of 9 January 2018, 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 Instrument finalises the investigation in relation to concussion as advertised in the Government Notices Gazette of 9 January 2018.

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. 93 of 2018

Kind of Injury, Disease or Death: Concussion

 

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 concussion;
  • 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, concussion 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. 65 of 2012; and
  • reflects developments in the available sound medical-scientific evidence concerning concussion 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 concussion (Balance of Probabilities) (No. 93 of 2018) was enacted to address the issue of determining the connection between concussion, including death from concussion, and particular kinds of service as defined under the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004. This legislative instrument, determined by the Repatriation Medical Authority under subsection 196B(8) of the VEA, was developed to replace the previously repealed Instrument No. 65 of 2012, reflecting the latest available sound medical-scientific evidence. The primary objective of this statement is to facilitate the assessment of claims for medical treatment and compensation by specifying the circumstances under which such benefits can be extended to eligible persons suffering from concussion. It also aims to promote human rights, ensuring that the qualifying conditions for benefits are reasonable, proportionate, and transparent, and that they are exercised without discrimination, thereby facilitating the enjoyment of rights such as social security, an adequate standard of living, and the highest attainable standard of physical and mental health.

Scope and Application

The Statement of Principles concerning concussion (Balance of Probabilities) (No. 93 of 2018) applies to claims under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA). It outlines the medical-scientific factors that must be present to establish a connection between concussion or death from concussion and particular types of military service, including eligible war service, defence service, and peacetime service. This Instrument is intended to assist claimants in making claims and the Repatriation Commission in assessing these claims, ensuring that the determinations are based on sound medical-scientific evidence. The Instrument also facilitates the review of decisions by the Veterans' Review Board and the Administrative Appeals Tribunal. The geographic reach of this Act is national, as it applies across Australia under the VEA and MRCA. The Act does not specify any exclusions, exemptions, or thresholds, but it does provide a structured framework for assessing the balance of probabilities concerning the connection between concussion and military service. The application of the Act may be extended or restricted through subordinate instruments, which may include further regulations or guidelines issued by the Repatriation Medical Authority.

Key Provisions

The Statement of Principles concerning concussion (Balance of Probabilities) (No. 93 of 2018) under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA) outlines the factors that need to be present for a claim of concussion to be considered on the balance of probabilities. According to section 5, this includes factors related to eligible war service, defence service, and peacetime service. These factors must be related to the service circumstances to establish a connection with concussion or death from concussion. The determination of these factors is based on the sound medical-scientific evidence available, as outlined in section 6. The obligations imposed by this Statement of Principles include the necessity for claimants to provide evidence that aligns with the factors specified in the Statement. This includes proof of service and the occurrence of events that align with the defined circumstances. The Repatriation Medical Authority, as stated in section 2, must assess these claims based on the evidence presented, applying the specified factors to determine eligibility for compensation or medical treatment under the VEA and the MRCA. Additionally, the Authority is required to ensure that the determination of these claims is based on the latest available medical-scientific evidence, reflecting any updates or changes in understanding since the previous Instrument No. 65 of 2012. The consequences for non-compliance with the requirements set forth in the Statement of Principles can be significant. Breaches of the obligations outlined in the Statement of Principles, such as providing false evidence or failing to meet the specified criteria, can result in the denial of claims. This can be considered a civil consequence, as it directly impacts the claimant's entitlement to benefits. Moreover, there may be potential criminal consequences if false claims are made knowingly and intentionally, which could lead to legal proceedings under the relevant Acts. The penalties for such actions are not explicitly stated in the document but could include fines and imprisonment as provided under the VEA and the MRCA.

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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.