REPATRIATION MEDICAL AUTHORITY
INSTRUMENT NO. 52 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. 18 of 1995 determined under subsection 196B(3) of the VEA concerning horseshoe kidney and death from horseshoe kidney.
2. The Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that horseshoe kidney and death from horseshoe kidney 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. 52 of 2007 concerning horseshoe kidney. This Instrument will in effect replace the revoked Statement 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, horseshoe kidney or death from horseshoe kidney 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 horseshoe kidney 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 'horseshoe kidney' in clause 3;
- deleting the factor concerning 'physical trauma';
- new definitions of 'death from horseshoe kidney'; 'ICD-10-AM code'; 'relevant service' and 'terminal event' in clause 6;
- deleting definitions of 'ICD code' and 'physical trauma' in clause 6; and
- specifying a date of effect for the Instrument in clause 8.
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 horseshoe kidney 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. On 20 December 2006, the Authority wrote to organisations representing veterans, service personnel and their dependants regarding the proposed Instrument and the medical-scientific material considered by the Authority. This letter emphasised the deletion of factor relating to physical trauma. The Authority provided an opportunity to the organisations to make representations in relation to the proposed instrument prior to its determination. No submissions were received for consideration by the Authority.
10. The determining of this new instrument finalises the investigation in relation to horseshoe kidney as advertised in the Government Notices Gazette of 15 June 2005.
11. 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. 52 of 2007 was enacted in 2007 to address the issue of horseshoe kidney and death from horseshoe kidney in relation to service rendered by individuals under the Veterans’ Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004. This legislation was introduced by the Repatriation Medical Authority, in accordance with subsection 196B(3) of the VEA, to establish a Statement of Principles concerning horseshoe kidney, effectively replacing the previously revoked Instrument No. 18 of 1995. The policy objective was to ensure that claims for compensation for service injuries, diseases, or deaths on or after 1 July 2004 are determined by the Military Rehabilitation and Compensation Commission, using the newly established Statements of Principles. This was achieved by examining the available sound medical-scientific evidence and revising the Instrument format to align with current practices.
Scope and Application
The Repatriation Medical Authority Instrument No. 52 of 2007 amends the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004 to establish a new Statement of Principles concerning horseshoe kidney, replacing the previously revoked Instrument No. 18 of 1995. This Act applies to veterans and service personnel who have rendered eligible war service, defence service, or peacetime service, and who have contracted horseshoe kidney or died from it, provided these conditions are linked to their service on the balance of probabilities. The legislation has a national reach, impacting individuals across Australia who fall under the jurisdiction of the VEA and MRCA. The Act does not specify exclusions or exemptions but relies on the medical-scientific evidence available to determine eligibility. The Authority may extend or restrict the application of this Act through subordinate instruments, ensuring the criteria for determining horseshoe kidney remain consistent with the latest medical evidence.
Key Provisions
The Repatriation Medical Authority (the Authority) has issued Instrument No. 52 of 2007 under subsection 196B(3) of the Veterans’ Entitlements Act 1986 (VEA), replacing the previous Instrument No. 18 of 1995 regarding horseshoe kidney and death from horseshoe kidney. This new instrument establishes a Statement of Principles which sets out the factors that need to be present to determine if horseshoe kidney or death from horseshoe kidney can be related to specific types of service, namely eligible war service (excluding operational service), defence service (excluding hazardous service), and peacetime service (VEA section 3(1); VEA section 5(1)). The determination of these factors is made on the balance of probabilities and is intended to provide a basis for claims under the VEA and the Military Rehabilitation and Compensation Act 2004 (MRCA).
The Authority has outlined the obligations and requirements imposed by the new instrument, which include the adoption of the latest revised Instrument format, the deletion of certain factors such as the ICD code and physical trauma, and the introduction of new definitions for terms like 'horseshoe kidney', 'ICD-10-AM code', 'relevant service', and 'terminal event'. The Authority ensured transparency by advertising its intention to investigate and inviting submissions from relevant organisations and individuals. Despite these efforts, no submissions were received for consideration during the investigation or prior to the instrument's final determination.
The new instrument also clarifies the application of the Statement of Principles under both the VEA and the MRCA, effective from 1 July 2004, as per subsection 196B(3A) of the VEA. Claims for compensation under section 319 of the MRCA concerning injuries, diseases, or deaths occurring on or after this date are to be determined by the Military Rehabilitation and Compensation Commission using the Statements of Principles issued by the Authority. The instrument specifies its date of effect in clause 8 and reflects the latest medical-scientific evidence considered by the Authority.
In terms of consequences for non-compliance or breach, the legislation does not explicitly outline specific offences, penalties, or civil/criminal consequences within the provided explanatory notes. However, under the VEA and MRCA, failure to comply with the requirements or misrepresent facts in claims could potentially lead to penalties or the refusal of compensation claims. The Authority and the Military Rehabilitation and Compensation Commission have the authority to investigate and take appropriate action against those who do not adhere to the legislative requirements.