Statement of Principles concerning concussion No. 64 of 2012

Administered by Department of Veterans' Affairs

Legislation au F2012L01809 Not in force Legislative Instrument

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REPATRIATION MEDICAL AUTHORITY

 

INSTRUMENT NO. 64 of 2012

 

VETERANS’ ENTITLEMENTS ACT 1986

MILITARY REHABILITATION AND COMPENSATION ACT 2004

 

EXPLANATORY NOTES FOR TABLING

 

 

  1. The Repatriation Medical Authority (the Authority) has determined, under subsection 196B(2) of the Veterans’ Entitlements Act 1986 (the VEA), Statement of Principles Instrument No. 64 of 2012 concerning concussion and death from concussion.

 

2.             The Authority is of the view that there is sound medical-scientific evidence that indicates that concussion and death from concussion can be related to particular kinds of service.  The Authority has therefore determined this Statement of Principles concerning concussion pursuant to subsection 196B(2) of the VEA.

 

3.             Pursuant to the provisions of the VEA and the Military Rehabilitation and Compensation Act 2004 (the MRCA), claims for pension under the VEA or compensation under the MRCA are determined by the Repatriation Commission or the Military Rehabilitation and Compensation Commission by reference to Statements of Principles issued by the Authority pursuant to the VEA.

 

4.             The Statement of Principles sets out the factors that must as a minimum exist, and which of those factors must be related to the following kinds of service rendered by a person:

 

 operational service under the VEA;

 peacekeeping service under the VEA;

 hazardous service under the VEA;

 British nuclear test defence service under the VEA;

 warlike service under the MRCA;

 non-warlike service under the MRCA,

 

before it can be said that a reasonable hypothesis has been raised connecting concussion or death from concussion, with the circumstances of that service.

 

5.             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 concussion or death from concussion 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 120A(3) of the VEA or subsection 338(3) of the MRCA).

 

6.             This new Instrument results from an investigation notified by the Authority in the Government Notices Gazette of 14 December 2011 concerning traumatic brain injury in accordance with section 196G of the VEA.  The investigation involved an examination of the sound medical-scientific evidence available to the Authority.

 

7.             Prior to determining this Instrument, the Authority advertised its intention to undertake an investigation in relation to traumatic brain injury in the Government Notices Gazette of 14 December 2011, 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.  Three submissions were received for consideration by the Authority during the investigation.

 

8.             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.

 

9.             The determining of this new Instrument finalises the investigation in relation to traumatic brain injury as advertised in the Government Notices Gazette of 14 December 2011.

 

10.         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. 64 of 2012

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).

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; and
  • outlines the factors which the current sound medical-scientific evidence indicates must as a minimum exist, before it can be said that a reasonable hypothesis has been raised, connecting concussion with the circumstances of eligible service rendered by a person, as set out in clause 4 of the Explanatory Notes.

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; and
  • the rights of persons with disabilities by facilitating the determination of claims relating to treatment and rehabilitation (Art 26, CRPD).

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 Repatriation Medical Authority Instrument No. 64 of 2012, concerning concussion and death from concussion, was enacted in 2012 under the authority of the Veterans’ Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004. This legislation was introduced to address the need for clear and consistent criteria for the assessment of claims related to concussion in veterans and current and former Defence Force members. The problem it aimed to resolve was the lack of a definitive framework for evaluating claims related to concussion and its consequences, which had caused difficulties for claimants and those responsible for assessing their claims. The enacting body was the Repatriation Medical Authority, and the policy objective was to establish a Statement of Principles that would provide a clear basis for the assessment of claims related to concussion. This legislation ensures that claims can only be considered if they meet the criteria set out in the Statement of Principles, thus facilitating the proper assessment and review of claims for benefits and compensation related to concussion.

Scope and Application

The Statement of Principles Instrument No. 64 of 2012, issued by the Repatriation Medical Authority under the Veterans’ Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004, pertains specifically to claims involving concussion and death from concussion related to military service. This legislative instrument applies to veterans, service personnel, and their dependants who have served in various capacities including operational, peacekeeping, hazardous, British nuclear test defence service, warlike, and non-warlike service. It sets forth the minimum medical-scientific criteria that must be met to establish a reasonable hypothesis linking concussion or death from concussion to the service rendered by the claimant. The instrument affects claims made on or after 1 June 1994 for the VEA and 1 July 2004 for the MRCA, ensuring that the Repatriation Commission, Military Rehabilitation and Compensation Commission, Veterans’ Review Board, or Administrative Appeals Tribunal can only uphold claims that align with the specified criteria. The instrument does not exclude any specific groups but rather sets a threshold that must be met for any claim to be considered valid. Furthermore, this instrument is compatible with human rights, as it promotes the rights to social security, an adequate standard of living, and the highest attainable standard of physical and mental health, without derogating from any human rights.

Key Provisions

The main operative sections of this legislation, Statement of Principles Instrument No. 64 of 2012, outline the criteria for recognising concussion and death from concussion as service-related injuries. This is established under subsection 196B(2) of the Veterans’ Entitlements Act 1986 (VEA) and is intended to guide the Repatriation Commission, Military Rehabilitation and Compensation Commission, Veterans’ Review Board, and Administrative Appeals Tribunal in their assessments of claims (subsections 120A(3) of the VEA and 338(3) of the Military Rehabilitation and Compensation Act 2004 (MRCA)). This Statement of Principles lists the necessary conditions that must be met for a claim to be considered valid, specifically detailing the types of service that can be linked to concussion or death from concussion. The obligations imposed by this Act on parties such as the Repatriation Commission and the Military Rehabilitation and Compensation Commission are stringent. They are mandated to only accept claims for pension or compensation concerning concussion or death from concussion if these claims are supported by the Statement of Principles issued by the Repatriation Medical Authority. This requirement ensures that all claims are assessed based on the sound medical-scientific evidence that correlates the injury with specific service conditions. Additionally, the Act requires the Repatriation Medical Authority to advertise investigations into traumatic brain injury and to invite submissions from relevant organisations and experts, as demonstrated in the investigation concerning concussion. Failure to comply with the requirements set forth in this Statement of Principles can result in significant legal consequences. Under the VEA and the MRCA, any claim for pension or compensation related to concussion or death from concussion that was lodged after the specified dates (1 June 1994 for the VEA and 1 July 2004 for the MRCA) and not supported by this Statement of Principles will not be accepted. This strict adherence to the criteria outlined in the Statement of Principles underscores the importance of precise and evidence-based claims processing. While the legislation does not explicitly mention specific penalties for non-compliance, the implication is that any unsupported claims will be denied, potentially leading to disputes and appeals through the Veterans’ Review Board and Administrative Appeals Tribunal.

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