Statement of Principles concerning explosive blast injury (Balance of Probabilities) (No. 26 of 2020)

Administered by Department of Veterans' Affairs

Legislation au F2020L00487 In force Legislative Instrument

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EXPLANATORY STATEMENT

 

STATEMENT OF PRINCIPLES CONCERNING

EXPLOSIVE BLAST INJURY

(BALANCE OF PROBABILITIES) (NO. 26 OF 2020)

 

VETERANS' ENTITLEMENTS ACT 1986

MILITARY REHABILITATION AND COMPENSATION ACT 2004

 

  1. This is the Explanatory Statement to the Statement of Principles concerning explosive blast injury (Balance of Probabilities) (No. 26 of 2020).

Background

2.             This Instrument results from an investigation notified by the Repatriation Medical Authority (the Authority) in the Government Notices Gazette of 29 October 2019 concerning physical injury due to munitions discharge in accordance with section 196G of the Veterans' Entitlements Act 1986 (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.

3.             Having regard to the available sound medical-scientific evidence, the Authority is of the view that the Statements of Principles concerning physical injury due to munitions discharge, Instrument Nos. 48 and 49 of 2012, cover two particular kinds of physical injury that can be caused by munitions discharge, namely explosive blast injury and gunshot injury.

4.             The Authority has therefore decided under subsection 196B(8) of the VEA, to repeal Instrument No. 49 of 2012 (Federal Register of Legislation No. F2012L01790) determined under subsection 196B(3) of the VEA concerning physical injury due to munitions discharge and replace it as appropriate, with separate Statements of Principles reflecting these distinct particular kinds of injury..

5.             As the Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that explosive blast injury and death from explosive blast injury can be related to particular kinds of service, it has determined, pursuant to subsection 196B(3) of the VEA, a Statement of Principles concerning explosive blast injury (Balance of Probabilities) (No. 26 of 2020).  The Authority has also separately determined a Statement of Principles concerning gunshot injury (Balance of Probabilities) (No. 24 of 2020).

6.             These two Instruments will in effect replace the repealed Statement of Principles.

Purpose and Operation

7.             The Statement of Principles will be applied in determining claims under the VEA and the Military Rehabilitation and Compensation Act 2004 (the MRCA).

8.             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, explosive blast injury or death from explosive blast injury 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.

9.             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;
  • separating the Instruments concerning physical injury due to munitions discharge into two separate sets of Instruments, entitled explosive blast injury and gunshot injury;
  • new definition of 'explosive blast injury' in subsection 7(2);
  • new factor in subsection 9(1) concerning being exposed to an explosive blast;
  • revising the factor in subsection 9(2) concerning inability to obtain appropriate clinical management;
  • deleting the factor concerning sustaining physical injury due to munitions discharge as injury due to the explosion of munitions is covered by the factor in subsection 9(1) concerning being exposed to an explosive blast, and injury due to gunshot is now covered by the factor in subsection 9(1) of the new Instrument concerning gunshot injury;
  • new definitions of 'MRCA' and 'VEA' in Schedule 1 - Dictionary; and
  • revising the definition of 'relevant service' by the inclusion of a note, in Schedule 1 - Dictionary.

Consultation

10.         Prior to determining this Instrument, the Authority advertised its intention to undertake an investigation in relation to physical injury due to munitions discharge in the Government Notices Gazette of 29 October 2019, 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 in relation to the investigation.

Human Rights

11.         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

12.         The determining of this Instrument finalises the investigation in relation to physical injury due to munitions discharge as advertised in the Government Notices Gazette of 29 October 2019.

References

13.         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. 26 of 2020

Kind of Injury, Disease or Death: Explosive blast injury

 

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 explosive blast injury;
  • 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, explosive blast injury is connected with the circumstances of eligible service rendered by a person, as set out in clause 8 of the Explanatory Statement;
  • replaces Instrument No. 49 of 2012 in part; and
  • reflects developments in the available sound medical-scientific evidence concerning explosive blast injury 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 explosive blast injury (Balance of Probabilities) (No. 26 of 2020) was enacted to address the need for updated and specific guidelines on the connection between explosive blast injuries and service rendered by individuals, as determined by the Repatriation Medical Authority under the Veterans' Entitlements Act 1986. This legislation was introduced to replace the previous Statement of Principles concerning physical injury due to munitions discharge, which combined explosive blast injury and gunshot injury into one document. The policy objective is to provide clarity and facilitate the assessment of claims under the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004 by specifying the circumstances in which medical treatment and compensation can be extended to eligible persons who have suffered explosive blast injuries. The Act also aims to promote human rights by ensuring access to social security and the highest attainable standard of physical and mental health for veterans, current and former Defence Force members, and their dependents. The Repatriation Medical Authority, which is responsible for determining the Statements of Principles, conducted an investigation and concluded that it was more probable than not that explosive blast injuries and death from such injuries can be related to particular kinds of service. This determination was made on the basis of the available sound medical-scientific evidence, which led to the repeal of the previous Statement of Principles and the creation of separate Statements of Principles for explosive blast injury and gunshot injury. The new Statement of Principles outlines the factors that must exist, and which of those factors must be related to the service rendered, for it to be said that, on the balance of probabilities, explosive blast injury or death from explosive blast injury is connected with the circumstances of the service.

Scope and Application

The Statement of Principles concerning explosive blast injury (Balance of Probabilities) (No. 26 of 2020) applies to individuals who have sustained an explosive blast injury as a result of their service in the Australian Defence Force, and who are seeking compensation or rehabilitation benefits under the Veterans' Entitlements Act 1986 or the Military Rehabilitation and Compensation Act 2004. The Statement of Principles outlines the factors that must exist for it to be said, on the balance of probabilities, that the explosive blast injury is connected with the circumstances of the service rendered by the individual. This includes the types of service that must have been performed, as well as the circumstances in which the injury occurred. The Statement of Principles applies nationally, and is relevant to all relevant veterans and service personnel throughout Australia. The Statement of Principles does not apply to injuries that are not caused by explosive blasts, or to injuries that occurred outside the scope of the specified types of service. The application of the Statement of Principles may be extended or restricted through subordinate instruments, such as regulations or guidelines, which may provide further detail on the application of the Statement of Principles in specific circumstances. Overall, the Statement of Principles aims to provide clarity and consistency in the assessment of claims for compensation and rehabilitation benefits related to explosive blast injuries sustained during service in the Australian Defence Force.

Key Provisions

The Statement of Principles concerning explosive blast injury (Balance of Probabilities) (No. 26 of 2020) outlines the circumstances under which explosive blast injury can be considered connected to service rendered by a person, as stated in sections 7 and 8 of the explanatory statement. The main provision requires that certain factors, such as exposure to an explosive blast and inability to obtain appropriate clinical management, must exist and be related to specific kinds of service, including eligible war service, defence service, and peacetime service, to conclude that explosive blast injury is connected with the service. This legislative instrument serves to guide claimants and the Repatriation Commission in assessing claims for medical treatment and compensation under the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004. The Act imposes obligations on parties such as the Repatriation Medical Authority, the Repatriation Commission, and claimants to adhere to the specified factors and conditions for determining the connection between explosive blast injury and service. The Repatriation Medical Authority is responsible for determining the Statements of Principles based on available sound medical-scientific evidence. Claimants must provide evidence that aligns with the factors outlined in the Act to substantiate their claims for compensation and medical treatment. The Repatriation Commission is tasked with assessing the validity of these claims based on the criteria established by the Authority. Any breaches of the provisions outlined in the Act can result in civil or criminal consequences. While the specific offences and penalties are not detailed in the explanatory statement, it is understood that non-compliance with the statutory requirements for determining and assessing claims can lead to legal repercussions. For instance, providing false information or evidence to support a claim could potentially lead to charges under relevant legislation concerning fraud or misrepresentation. The penalties for such offences could include fines or imprisonment, depending on the severity and jurisdiction of the offence. The Act ensures that the determination of Statements of Principles is compatible with human rights, as outlined in the Statement of Compatibility with Human Rights. It promotes the rights of veterans, current and former Defence Force members, and their dependents by facilitating the assessment and determination of benefits and compensation. This includes the right to social security, an adequate standard of living, and the highest attainable standard of physical and mental health, ensuring these rights are exercised without discrimination. The Act thereby supports the human rights of affected individuals by providing a transparent and reasonable framework for claims related to explosive blast injury.

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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.