Statement of Principles concerning frostbite (Balance of Probabilities) (No. 38 of 2026)

Administered by Department of Veterans' Affairs

Legislation au F2026L00460 In force Legislative Instrument

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EXPLANATORY STATEMENT

 

STATEMENT OF PRINCIPLES CONCERNING

FROSTBITE

(BALANCE OF PROBABILITIES) (NO. 38 OF 2026)

 

VETERANS' ENTITLEMENTS ACT 1986

MILITARY REHABILITATION AND COMPENSATION ACT 2004

 

  1.              This is the Explanatory Statement to the Statement of Principles concerning frostbite (Balance of Probabilities) (No. 38 of 2026).

Background

  1.              The Repatriation Medical Authority (the Authority), under subsection 196B(8) of the Veterans' Entitlements Act 1986 (the VEA), repeals Instrument No. 12 of 2018 (Federal Register of Legislation No. F2018L00014) determined under subsection/s 196B(3) of the VEA concerning frostbite.
  2.              The Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that frostbite and death from frostbite 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 frostbite (Balance of Probabilities) (No. 38 of 2026).  This Instrument will in effect replace the repealed Statement of Principles.

Purpose and Operation

  1.              The Statement of Principles will be applied in determining claims under the VEA and the Military Rehabilitation and Compensation Act 2004 (the MRCA).
  2.              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, frostbite or death from frostbite 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.

  1.              This Instrument results from an investigation notified by the Authority in the Government Notices Gazette of  28 August 2025 concerning frostbite 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.
  2.              The contents of this Instrument are in similar terms as the repealed Instrument.  Comparing this Instrument and the repealed Instrument, the differences include:
  • specifying a day of commencement for the Instrument in section 2; and
  • revising the factor in subsection 9(7) concerning inability to obtain appropriate clinical management.

Incorporation

  1.              This Instrument refers to The International Statistical Classification of Diseases and Related Health Problems, Tenth Revision, Australian Modification (ICD-10-AM), Tenth Edition, effective date of 1 July 2017, copyrighted by the Independent Hospital Pricing Authority, ISBN 978-1-76007-296-4.

The reference to the ICD-10-AM in this instrument is included for contextual and explanatory purposes only. Although not incorporated by reference, information about the ICD-10-AM can be obtained upon application in writing to the Repatriation Medical Authority either via our website at www.rma.gov.au or postal address GPO Box 1014, Brisbane, Queensland 4001.

Consultation

  1.              Prior to determining this Instrument, the Authority advertised its intention to undertake an investigation in relation to frostbite in the Government Notices Gazette of 28 August 2025, 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

  1.          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

  1.          The determining of this Instrument finalises the investigation in relation to frostbite as advertised in the Government Notices Gazette of 28 August 2025.

References

  1.          A list of references relating to the above condition is available on the Authority's website at: www.rma.gov.au. Any other document referred to in this Statement of Principles is available on request to the Repatriation Medical Authority at the following address:

              

Email:    info@rma.gov.au

Post:      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. 38 of 2026

Kind of Injury, Disease or Death: frostbite

 

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 and the Military Rehabilitation and Compensation 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 frostbite;
  • 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, frostbite 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. 12 of 2018; and
  • reflects developments in the available sound medical-scientific evidence concerning frostbite 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, ICESCR; 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, ICESCR 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 frostbite (Balance of Probabilities) (No. 38 of 2026) was enacted by the Repatriation Medical Authority under subsection 196B(3) of the Veterans' Entitlements Act 1986. This legislative instrument addresses the gap in the existing framework by updating the criteria for determining whether frostbite can be related to particular kinds of service, specifically eligible war service, defence service, and peacetime service, as per the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004. The primary objective of this instrument is to ensure that the assessment and compensation for frostbite are based on the most recent and reliable medical-scientific evidence, thereby facilitating the review and claims processes for affected veterans and service personnel. This instrument replaces the previously repealed Statement of Principles No. 12 of 2018, reflecting advancements in medical-scientific knowledge concerning frostbite. It outlines the specific factors that must exist for it to be probable that frostbite or death from frostbite is connected to the service circumstances, ensuring that the criteria for determining eligibility for benefits are transparent, proportionate, and reasonable. By doing so, it promotes the human rights of veterans and service personnel, including their rights to social security, an adequate standard of living, and the highest attainable standard of physical and mental health, without discrimination.

Scope and Application

The Statement of Principles concerning frostbite (Balance of Probabilities) (No. 38 of 2026) applies to claims under the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004. It sets out the circumstances in which frostbite or death from frostbite can be considered connected to eligible war service, defence service, or peacetime service, based on the available sound medical-scientific evidence. This instrument, determined by the Repatriation Medical Authority, replaces the previously repealed Instrument No. 12 of 2018, reflecting updated evidence. The principles are designed to facilitate the assessment and determination of claims for veterans and Defence Force members, ensuring that the qualifying conditions for benefits are reasonable, proportionate, and transparent. It also promotes various human rights, including the right to social security, an adequate standard of living, and the highest attainable standard of physical and mental health, without discrimination. The instrument specifies the factors that must exist for a claim to be substantiated and provides a clear framework for assessing these claims, thereby ensuring that benefits are provided in a manner that is compatible with human rights. This Statement of Principles has a national reach, applying across Australia in the context of claims under the specified Acts. It does not incorporate other legislation or documents by reference, although it refers to the International Statistical Classification of Diseases and Related Health Problems, Tenth Revision, Australian Modification (ICD-10-AM) for contextual purposes. The Repatriation Medical Authority consulted with relevant stakeholders, including veterans' organisations and the Repatriation Commission, but no submissions were received for consideration. The instrument's finalisation of the investigation into frostbite concludes the process initiated in the Government Notices Gazette of 28 August 2025. Any additional information or documentation can be requested from the Repatriation Medical Authority.

Key Provisions

The Statement of Principles concerning frostbite (Balance of Probabilities) (No. 38 of 2026) outlines the specific factors that must be present to establish a connection between frostbite and certain types of military service under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA) (section 5). This determination replaces the previous Instrument No. 12 of 2018, reflecting updated medical-scientific evidence. The Statement of Principles will be used in assessing claims for medical treatment and compensation related to frostbite, ensuring that the assessment process is based on the most current and reliable scientific evidence (section 6). The obligations imposed by the Statement of Principles include the necessity for claimants to provide evidence that meets the specified factors, such as the type of service rendered and the presence of frostbite, in order to be considered for benefits under the VEA and MRCA. The Repatriation Medical Authority (the Authority) and the relevant Commissions are required to apply these principles when assessing claims. The Authority is also obligated to review and revise the Statement of Principles as new medical-scientific evidence emerges, ensuring that the principles remain current and accurate (section 7). The Statement of Principles does not explicitly detail specific offences or penalties for non-compliance with its provisions. However, any breaches of the requirements set out in the VEA or MRCA in the context of claims for frostbite could lead to civil or administrative penalties. These could include fines or other penalties for providing false information or documents in support of a claim, as provided under the VEA and MRCA. Additionally, failure to comply with the determinations of the Repatriation Commission or the Military Rehabilitation and Compensation Commission could result in administrative or judicial review, potentially leading to the overturning of a decision and the imposition of further administrative penalties.

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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.