Statement of Principles concerning hepatitis E infection (Balance of Probabilities) (No. 40 of 2024)

Administered by Department of Veterans' Affairs

Legislation au F2024L00737 In force Legislative Instrument

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EXPLANATORY STATEMENT

 

STATEMENT OF PRINCIPLES CONCERNING

HEPATITIS E INFECTION

(BALANCE OF PROBABILITIES) (NO. 40 OF 2024)

 

VETERANS' ENTITLEMENTS ACT 1986

MILITARY REHABILITATION AND COMPENSATION ACT 2004

 

  1. This is the Explanatory Statement to the Statement of Principles concerning hepatitis E infection (Balance of Probabilities) (No. 40 of 2024).

Background

2.             The Repatriation Medical Authority (the Authority), under subsection 196B(8) of the Veterans' Entitlements Act 1986 (the VEA), repeals Instrument No. 113 of 2015 (Federal Register of Legislation No. F2015L01333) determined under subsection 196B(3) of the VEA concerning hepatitis E.

3.             The Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that hepatitis E infection and death from hepatitis E infection 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 hepatitis E infection (Balance of Probabilities) (No. 40 of 2024).  This Instrument will in effect replace the repealed Statement of Principles.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, hepatitis E infection or death from hepatitis E infection 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 1 November 2022 concerning hepatitis E 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:

  • specifying a day of commencement for the Instrument in section 2;
  • revising the definition of 'hepatitis E infection' in subsection 7(2);
  • revising the reference to 'ICD-10-AM code' in subsection 7(4);
  • revising the factor in subsection 9(1) concerning being exposed to the hepatitis E virus;
  • new factor in subsection 9(2) concerning having solid organ transplant;
  • new factor in subsection 9(3) concerning having a liver, kidney, heart, lung, stem cell or bone marrow transplant;
  • new factor in subsection 9(4) concerning being pregnant at the time of death due to hepatitis E;
  • new factor in subsection 9(5) concerning having chemotherapy for cancer;
  • new definition of 'clinical onset' in Schedule 1 - Dictionary; and
  • deleting the definition of 'being exposed to the hepatitis E virus'.

Consultation

8.             Prior to determining this Instrument, the Authority advertised its intention to undertake an investigation in relation to hepatitis E in the Government Notices Gazette of 1 November 2022, 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

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 hepatitis E as advertised in the Government Notices Gazette of 1 November 2022.

References

11.         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. 40 of 2024

Kind of Injury, Disease or Death: Hepatitis E infection

 

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 hepatitis E infection;
  • 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, hepatitis E infection 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. 113 of 2015; and
  • reflects developments in the available sound medical-scientific evidence concerning hepatitis E infection 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 hepatitis E infection (Balance of Probabilities) (No. 40 of 2024) was determined by the Repatriation Medical Authority (the Authority) under subsection 196B(3) of the Veterans' Entitlements Act 1986 (the VEA). This legislative instrument repeals Instrument No. 113 of 2015, which was determined under the same subsection of the VEA concerning hepatitis E. The Authority, after examining the available sound medical-scientific evidence, concluded that it is more probable than not that hepatitis E infection and death from hepatitis E infection can be related to particular kinds of service. This Statement of Principles aims to facilitate claims under the VEA and the Military Rehabilitation and Compensation Act 2004 by setting out the factors that must exist to establish a connection between hepatitis E infection or death from hepatitis E infection and the circumstances of eligible service. This instrument ensures that the assessment and determination of compensation and benefits for hepatitis E infection are in line with the most current medical-scientific evidence. The Authority, in determining this instrument, advertised its intention to undertake an investigation into hepatitis E and invited submissions from relevant stakeholders. However, no submissions were received. The instrument is compatible with human rights, as it does not derogate from any human rights and promotes several human rights, including the right to social security, an adequate standard of living, and the highest attainable standard of physical and mental health. The instrument also ensures that these rights will be exercised without discrimination of any kind.

Scope and Application

The Statement of Principles concerning hepatitis E infection (Balance of Probabilities) (No. 40 of 2024) applies to individuals who have contracted hepatitis E infection or died from the infection in connection with their service as stipulated under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA). This Statement of Principles is applicable to eligible war service, defence service, and peacetime service as defined by these acts. It sets out the specific factors that must exist for a claim to be considered valid under the VEA and MRCA, providing a framework for determining the connection between the infection and the service rendered. The application of this legislation is national in scope, as it pertains to the Commonwealth's obligations under the VEA and MRCA. However, it excludes situations not covered by the definitions of eligible service as outlined in these acts. The Repatriation Medical Authority has the power to extend or restrict the application of this instrument through subordinate instruments, ensuring that it remains aligned with the latest medical-scientific evidence.

Key Provisions

The Statement of Principles concerning hepatitis E infection (Balance of Probabilities) (No. 40 of 2024) (the Statement of Principles) sets out the factors that must exist, and which of those factors must be related to particular kinds of service, before it can be said that, on the balance of probabilities, hepatitis E infection or death from hepatitis E infection is connected with the circumstances of that service (section 5). This applies to eligible war service, defence service, and peacetime service as defined under the Veterans' Entitlements Act 1986 (the VEA) and the Military Rehabilitation and Compensation Act 2004 (the MRCA). The Statement of Principles has been determined under subsection 196B(3) of the VEA and applies for the purposes of both the VEA and the MRCA. The obligations and requirements imposed by the Statement of Principles include the specification of factors that must exist, such as exposure to the hepatitis E virus, having a solid organ transplant, being pregnant at the time of death due to hepatitis E, having chemotherapy for cancer, and having a liver, kidney, heart, lung, stem cell, or bone marrow transplant (subsection 9). These factors must be related to the relevant service for a claim to be considered valid under the VEA and the MRCA. The Statement of Principles facilitates the assessment and determination of claims by providing clear criteria based on the available sound medical-scientific evidence. The Statement of Principles does not create new offences but outlines the conditions under which compensation and benefits can be claimed for hepatitis E infection related to service. Breach of the conditions specified in the Statement of Principles could lead to the denial of a claim, as the claims must be supported by evidence that meets the criteria outlined in the Statement of Principles. There are no explicit civil or criminal penalties stated for breach of the Statement of Principles, but the failure to meet the specified conditions could result in the rejection of a claim for compensation or benefits. The maximum penalties, if any, would be determined under the relevant sections of the VEA or the MRCA. The compatibility of the Statement of Principles with human rights is affirmed in the Statement of Compatibility with Human Rights. This Legislative Instrument 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, by facilitating the assessment and determination of benefits for veterans and Defence Force members suffering from hepatitis E infection related to service. The Repatriation Medical Authority ensures that these rights are exercised without discrimination, as required by international human rights standards.

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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.