Statement of Principles concerning conductive hearing loss (Balance of Probabilities) (No. 82 of 2019)

Administered by Department of Veterans' Affairs

Legislation au F2019L01095 In force Legislative Instrument

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EXPLANATORY STATEMENT

 

STATEMENT OF PRINCIPLES CONCERNING

conductive hearing loss

(BALANCE OF PROBABILITIES) (NO. 82 OF 2019)

 

VETERANS' ENTITLEMENTS ACT 1986

MILITARY REHABILITATION AND COMPENSATION ACT 2004

 

  1. This is the Explanatory Statement to the Statement of Principles concerning conductive hearing loss (Balance of Probabilities) (No. 82 of 2019).

Background

2.             The Repatriation Medical Authority (the Authority), under subsection 196B(8) of the Veterans' Entitlements Act 1986 (the VEA), repeals Instrument No. 8 of 2011 (Federal Register of Legislation No. F2010L03256) determined under subsection 196B(3) of the VEA concerning conductive hearing loss.

3.             The Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that that conductive hearing loss and death from conductive hearing loss 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 conductive hearing loss (Balance of Probabilities) (No. 82 of 2019).  This Instrument will in effect replace the repealed Statement of Principles.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, conductive hearing loss or death from conductive hearing loss 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 8 May 2018 concerning conductive hearing loss 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 factors in subsections 9(2) and 9(14) concerning bone diseases;
  • revising the factors in subsections 9(3) and 9(15) concerning otitic barotrauma;
  • revising the factors in subsections 9(4) and 9(16) concerning peak sound pressure level;
  • new factors in subsections 9(5) and 9(17) concerning exposure to an explosive blast;
  • new factors in subsections 9(6) and 9(18) concerning exposure to lightning strike;
  • revising the factors in subsections 9(7) and 9(19) concerning blunt trauma, penetrating trauma or surgery;
  • revising the factors in subsections 9(8) and 9(20) concerning permanent narrowing or obstruction of the external auditory canal;
  • revising the factors in subsections 9(9) and 9(21) concerning chronic otitis media;
  • new factors in subsections 9(10) and 9(22) concerning a benign or malignant neoplasm or other mass lesion of the middle ear;
  • new factors in subsections 9(11) and 9(23) concerning autoimmune diseases;
  • revising the factors in subsections 9(12) and 9(24) concerning therapeutic radiation;
  • revising the definitions of 'chronic otitis media', 'conductive hearing apparatus' 'exostosis' and 'relevant service' in Schedule 1 – Dictionary;
  • new definitions of 'dB(C)', 'fibrous dysplasia', 'MRCA', 'osteoma', 'specified list of autoimmune diseases', 'specified list of bone diseases' and 'VEA' in Schedule 1 -Dictionary;
  • deleting the definitions of 'a course of therapeutic radiation', 'chronic otitis externa', 'granuloma' and ' obstruction of the external auditory canal' in Schedule 1– Dictionary.

Consultation

8.             Prior to determining this Instrument, the Authority advertised its intention to undertake an investigation in relation to conductive hearing loss in the Government Notices Gazette of 8 May 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, 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 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 conductive hearing loss as advertised in the Government Notices Gazette of 8 May 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. 82 of 2019

Kind of Injury, Disease or Death: Conductive hearing loss

 

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 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 conductive hearing loss;
  • 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, conductive hearing loss 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. 8 of 2011; and
  • reflects developments in the available sound medical-scientific evidence concerning conductive hearing loss 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 conductive hearing loss (Balance of Probabilities) (No. 82 of 2019) was introduced to address the relationship between conductive hearing loss and particular kinds of service, including eligible war service, defence service, and peacetime service. This Statement of Principles was enacted under subsection 196B(3) of the Veterans' Entitlements Act 1986 and applies to claims under both the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004. It was developed in response to an investigation initiated by the Repatriation Medical Authority in 2018, following a review of the available medical-scientific evidence. The policy objective is to facilitate the assessment and determination of claims for social security benefits, compensation, and rehabilitation services for veterans and Defence Force members who have developed conductive hearing loss as a result of their service. The Instrument also aims to ensure that these rights are exercised without discrimination, promoting the human rights of veterans and their dependents.

Scope and Application

The Statement of Principles concerning Conductive Hearing Loss (Balance of Probabilities) (No. 82 of 2019) applies to individuals who have experienced conductive hearing loss and are seeking to make claims under the Veterans' Entitlements Act 1986 or the Military Rehabilitation and Compensation Act 2004. The Act specifies the conditions and circumstances under which such hearing loss can be considered related to eligible war service, defence service, or peacetime service, thus qualifying for compensation and medical treatment. The instrument operates on a national level within Australia, governed by the Commonwealth. There are no stated exclusions or exemptions within the document, and its application may be extended or restricted through subordinate instruments, as per the provisions of the Acts it pertains to. The instrument replaces an earlier version (Instrument No. 8 of 2011), reflecting updates based on the latest available medical-scientific evidence.

Key Provisions

The Statement of Principles concerning conductive hearing loss (Balance of Probabilities) (No. 82 of 2019) sets out the factors that must exist to establish a connection between service and conductive hearing loss, on the balance of probabilities. This Statement of Principles, outlined in sections 9(1) through 9(24) of the instrument, is applicable for claims under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA). The factors include exposure to specific events or conditions during service, such as bone diseases, otitic barotrauma, peak sound pressure levels, exposure to explosive blasts or lightning strikes, trauma, and certain medical conditions. These factors must be related to eligible war service, defence service, or peacetime service to establish a connection with the service rendered. The obligations imposed by this Statement of Principles primarily concern the Repatriation Medical Authority, the Repatriation Commission, and claimants. The Authority is required to determine the Statement of Principles based on the available sound medical-scientific evidence, as mandated by subsection 196B(3) of the VEA. The Repatriation Commission must then assess claims for compensation and medical treatment based on these principles. Claimants need to provide evidence that aligns with the specified factors in the Statement of Principles to substantiate their claims. Breaches or non-compliance with the provisions of this Statement of Principles can lead to civil and criminal consequences. For instance, providing false or misleading information to the Repatriation Commission in the course of a claim could be considered a breach of the VEA or MRCA, potentially leading to penalties under those Acts. The maximum penalties for such offences can include fines and imprisonment, depending on the severity and intent of the offence. Additionally, failure to comply with the requirements for evidence and substantiation of claims can result in the rejection of claims, thereby denying claimants the benefits and compensation they might be entitled to. Overall, the Statement of Principles concerning conductive hearing loss (Balance of Probabilities) (No. 82 of 2019) aims to ensure that veterans and service personnel who suffer from conductive hearing loss as a result of their service can receive appropriate compensation and medical treatment. By setting out clear criteria and factors that must be met, the instrument seeks to balance the need for thorough evidence with the rights and needs of claimants, ensuring a fair and transparent process for all parties involved.

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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.