REPATRIATION MEDICAL AUTHORITY
INSTRUMENT NO. 28 of 2007
VETERANS’ ENTITLEMENTS ACT 1986
MILITARY REHABILITATION AND COMPENSATION ACT 2004
EXPLANATORY NOTES FOR TABLING
- The Repatriation Medical Authority ('the Authority'), under subsection 196B(8) of the Veterans’ Entitlements Act 1986 ('the VEA') revokes Instrument No. 61 of 1994, determined under subsection 196B(3) of the VEA concerning herpes zoster and death from herpes zoster.
2. The Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that herpes zoster and death from herpes zoster 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, Instrument No. 28 of 2007 concerning herpes zoster. This Instrument will in effect replace the revoked Statements of Principles.
3. The provisions of the Military Rehabilitation and Compensation Act 2004 ('the MRCA') relating to claims for compensation commenced on 1 July 2004. Claims under section 319 of the MRCA for acceptance of liability for a service injury sustained, a service disease contracted or service death on or after 1 July 2004 are determined by the Military Rehabilitation and Compensation Commission by reference to Statements of Principles issued by the Authority pursuant to the VEA.
4. 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) under the VEA;
peacetime service under the MRCA,
before it can be said that, on the balance of probabilities, herpes zoster or death from herpes zoster is connected with the circumstances of that service.
5. This new instrument results from an investigation notified by the Authority in the Government Notices Gazette of 15 June 2005 concerning herpes zoster in accordance with section 196G of the Act. 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.
6. The contents of the new Instrument are in similar terms as the revoked Instruments. Comparing the new and the revoked Instruments, the differences include:
- adopting the latest revised Instrument format, which commenced in 2005;
- deleting the ICD code from the Instrument header;
- revising the definition of 'herpes zoster' in clause 3;
- new factor 6(b) concerning vaccine strain herpes zoster;
- former factors for 'Hodgkin's disease', 'non-Hodgkin's lymphoma', and 'bone marrow transplant' are redundant as they would be covered by factor 6(c) concerning immunocompromised state;
- new factor 6(d) concerning trauma;
- new factor 6(e) concerning a worsening factor for immunocompromised state;
- deleting the definitions of 'Hodgkin's disease'; 'ICD-code'; and 'non-Hodgkin's lymphoma';
- including new definitions of 'death from herpes zoster'; 'ICD-10-AM code'; 'relevant service'; 'terminal event'; and 'vaccine strain herpes zoster', in clause 9; and
- specifying a date of effect for the Instrument in clause 11.
7. Further changes to the format of the Instrument reflect the commencement of the MRCA and clarify that pursuant to subsection 196B(3A) of the VEA, the Statement of Principles has been determined for the purposes of both the VEA and the MRCA.
8. Prior to determining this instrument, the Authority advertised its intention to undertake an investigation in relation to herpes zoster in the Government Notices Gazette of 15 June 2005, 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, 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.
9. The determining of this new instrument finalises the investigation in relation to herpes zoster as advertised in the Government Notices Gazette of 15 June 2005.
10. A list of references relating to the above condition is available, on written request, from the Repatriation Medical Authority Secretariat.
Overview
The Repatriation Medical Authority Instrument No. 28 of 2007 amends the Veterans’ Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004 by addressing the issue of herpes zoster and death from herpes zoster in relation to specific service rendered by individuals. This legislation was enacted to provide a more definitive linkage between these medical conditions and particular service circumstances, based on the latest medical-scientific evidence available. The Repatriation Medical Authority, under the authority granted by the Veterans’ Entitlements Act 1986, has revoked the previous Instrument No. 61 of 1994 and established a new Statement of Principles to replace it. This new instrument outlines the conditions under which herpes zoster or death from herpes zoster can be considered connected to eligible war service, defence service, or peacetime service. The policy objective is to ensure that veterans and service personnel receive appropriate recognition and compensation for service-related medical conditions, aligning with the latest medical understanding and legislative requirements.
Scope and Application
The Repatriation Medical Authority Instrument No. 28 of 2007, issued under the Veterans’ Entitlements Act 1986, revokes the previous Instrument No. 61 of 1994 regarding herpes zoster and death from herpes zoster. This new instrument applies to individuals who have contracted herpes zoster or died from the condition, and who have provided eligible war service, defence service, or peacetime service. The Authority has determined that it is more probable than not that herpes zoster and death from herpes zoster can be related to certain kinds of service, thus establishing a Statement of Principles to address these connections. This instrument is also applicable to claims under the Military Rehabilitation and Compensation Act 2004, where compensation for service injuries, diseases, or deaths on or after 1 July 2004 is determined by the Military Rehabilitation and Compensation Commission, referencing the Statements of Principles issued by the Authority. The instrument does not specify any exclusions, exemptions, or thresholds, and its application extends across the Commonwealth of Australia.
Key Provisions
The main operative sections of the legislation (subsection 196B(8) of the Veterans’ Entitlements Act 1986) involve the revocation of Instrument No. 61 of 1994, which previously concerned herpes zoster and death from herpes zoster. This revocation is pursuant to the Repatriation Medical Authority's (the Authority) determination, based on sound medical-scientific evidence, that herpes zoster and death from herpes zoster are more likely than not related to certain kinds of service. In place of the revoked instrument, the Authority has issued Instrument No. 28 of 2007, which includes a Statement of Principles for herpes zoster. This new instrument sets out the factors that must exist to establish a connection between herpes zoster or death from herpes zoster and eligible war service, defence service, or peacetime service, as defined in the Act.
The legislation imposes several obligations and requirements on the parties it governs. Firstly, the Authority must determine the Statement of Principles based on the sound medical-scientific evidence available, ensuring that the new instrument reflects the most current understanding of the relationship between herpes zoster and service. The Authority is also required to advertise its intention to investigate and determine the instrument, as well as to invite submissions from relevant organisations and individuals. Additionally, the Military Rehabilitation and Compensation Commission must determine claims for compensation under the Military Rehabilitation and Compensation Act 2004 by reference to the Statements of Principles issued by the Authority. The Authority must ensure that the Statement of Principles is determined for the purposes of both the Veterans’ Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004, as clarified in the revised instrument format.
The legislation does not explicitly state any offences, penalties, or civil/criminal consequences for breach. However, non-compliance with the requirements to advertise investigations, invite submissions, and determine the Statement of Principles could potentially result in legal challenges or disputes regarding the validity of the instrument. The Authority must ensure that the process is transparent and inclusive to avoid such issues. Additionally, any claims for compensation that are not determined in accordance with the Statements of Principles could also lead to disputes and potential legal action by affected parties. While the legislation does not detail specific penalties, the importance of adhering to the outlined process is evident to maintain the integrity and fairness of the compensation claims process.