Statement of Principles concerning conductive hearing loss (Reasonable Hypothesis) (No. 81 of 2019)

Administered by Department of Veterans' Affairs

Legislation au F2019L01093 In force Legislative Instrument

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EXPLANATORY STATEMENT

 

STATEMENT OF PRINCIPLES CONCERNING

CONDUCTIVE HEARING LOSS

(REASONABLE HYPOTHESIS) (NO. 81 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 (Reasonable Hypothesis) (No. 81 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. 7 of 2011 (Federal Register of Legislation No. F2010L03255) determined under subsection 196B(2) of the VEA concerning conductive hearing loss.

3.             The Authority is of the view that there is sound medical-scientific evidence that indicates 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(2) of the VEA a Statement of Principles concerning conductive hearing loss (Reasonable Hypothesis) (No. 81 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  This Instrument will in effect replace the repealed Statement of Principles.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 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 conductive hearing loss or death from conductive hearing loss, 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(15) concerning bone diseases;
  • new factors in subsections 9(3) and 9(16) concerning osteoporosis;
  • revising the factors in subsections 9(4) and 9(17) concerning otitic barotrauma;
  • revising the factors in subsections 9(5) and 9(18) concerning peak sound pressure level;
  • new factors in subsections 9(6) and 9(19) concerning exposure to an explosive blast;
  • new factors in subsections 9(7) and 9(20) concerning exposure to lightning strike;
  • revising the factors in subsections 9(8) and 9(21) concerning blunt trauma, penetrating trauma or surgery;
  • revising the factors in subsection 9(9) and 9(22) concerning permanent narrowing or obstruction of the external auditory canal;
  • revising the factors in subsection 9(10) and 9(23) concerning chronic otitis media;
  • new factors in subsections 9(11) and 9(24) concerning a benign or malignant neoplasm or other mass lesion of the middle ear;
  • new factors in subsections 9(12) and 9(25) concerning autoimmune diseases;
  • revising the factors in subsections 9(13) and 9(26) 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. 81 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(2) 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 as a minimum exist, before it can be said that a reasonable hypothesis has been raised, connecting conductive hearing loss with the circumstances of eligible service rendered by a person, as set out in clause 5 of the Explanatory Statement;
  • replaces Instrument No. 7 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 (Reasonable Hypothesis) (No. 81 of 2019) was enacted to provide a framework for determining claims related to conductive hearing loss under the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004. This legislation was introduced to address the gap in establishing clear criteria and medical evidence for linking conductive hearing loss to specific types of military service. The Repatriation Medical Authority, as the enacting body, determined this Statement of Principles based on the available sound medical-scientific evidence, aiming to facilitate the assessment and compensation of eligible veterans and service members. The primary policy objective is to ensure that claimants and the Repatriation Commission can effectively navigate the process of making and assessing claims, thereby promoting the human rights of veterans and their dependents by providing reasonable, proportionate, and transparent benefits. This legislative instrument replaces the previous Instrument No. 7 of 2011, reflecting advancements in medical understanding and evidence concerning conductive hearing loss. It outlines specific factors that must exist to establish a reasonable hypothesis connecting the condition to particular service circumstances, thereby ensuring that claimants receive appropriate medical treatment and compensation. The instrument also aims to facilitate reviews by the Veterans' Review Board and the Administrative Appeals Tribunal, ensuring that decisions are fair and well-grounded in medical evidence.

Scope and Application

The Statement of Principles concerning Conductive Hearing Loss (Reasonable Hypothesis) (No. 81 of 2019) applies to veterans and current or former Defence Force members who may have developed conductive hearing loss due to their service, and is instrumental in facilitating claims under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA). This legislative instrument outlines the minimum factors that must exist to establish a reasonable hypothesis connecting conductive hearing loss with particular kinds of service, including operational, peacekeeping, hazardous, and British nuclear test defence service under the VEA, as well as warlike and non-warlike service under the MRCA. The instrument is applicable nationally across Australia, reflecting the broad jurisdictional reach necessary to address the needs of veterans and Defence Force members throughout the country. Exclusions or exemptions are not explicitly stated within the instrument, but the criteria set out ensure that claims are evaluated on the basis of sound medical-scientific evidence. The instrument is subject to revision through subordinate instruments to reflect advancements in medical-scientific understanding, ensuring that the legislative framework remains current and effective. This legislative instrument is compatible with human rights, promoting the rights of veterans and Defence Force members to social security, an adequate standard of living, and the highest attainable standard of health, without discrimination. It facilitates the assessment and determination of benefits and compensation, thereby upholding the human rights of those affected by conductive hearing loss due to their service.

Key Provisions

The Statement of Principles concerning conductive hearing loss (Reasonable Hypothesis) (No. 81 of 2019), as detailed in the Explanatory Statement, provides a framework for assessing claims related to conductive hearing loss under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA). It specifies the factors that must be present and related to certain types of service to establish a reasonable hypothesis connecting conductive hearing loss to service (sections 5 and 9). The types of service covered include operational, peacekeeping, hazardous, British nuclear test defence service under the VEA, and warlike and non-warlike service under the MRCA. The Statement of Principles requires that claimants demonstrate a connection between their conductive hearing loss and the specified service by presenting evidence that meets the outlined factors. These factors cover various medical conditions and exposures that could lead to conductive hearing loss, such as bone diseases, otitic barotrauma, exposure to explosive blasts, and autoimmune diseases. The document serves to streamline the claims process by providing clear criteria that must be met for compensation and medical treatment to be considered. The obligations imposed by the Act include the necessity for claimants to provide evidence supporting the connection between their hearing loss and their service, as outlined in the Statement of Principles. The Repatriation Medical Authority is required to assess these claims based on the sound medical-scientific evidence provided. Additionally, the Act mandates that the Authority remain updated with the latest medical-scientific evidence and revise the Statement of Principles as necessary to reflect new findings. Failure to comply with the requirements set forth in the Statement of Principles may result in the denial of claims for compensation or medical treatment. While the Explanatory Statement does not explicitly detail criminal or civil penalties for non-compliance, the implication is that not meeting the criteria outlined could lead to legal challenges or denials in the administrative processes governed by the VEA and MRCA. The focus remains on ensuring that claims are assessed fairly and in accordance with the best available medical evidence.

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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.