Statement of Principles concerning human immunodeficiency virus infection (Balance of Probabilities) (No. 6 of 2019)

Administered by Department of Veterans' Affairs

Legislation au F2018L01842 In force Legislative Instrument

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EXPLANATORY STATEMENT

 

STATEMENT OF PRINCIPLES CONCERNING

HUMAN IMMUNODEFICIENCY VIRUS INFECTION

(BALANCE OF PROBABILITIES) (NO. 6 OF 2019)

 

VETERANS' ENTITLEMENTS ACT 1986

MILITARY REHABILITATION AND COMPENSATION ACT 2004

 

  1. This is the Explanatory Statement to the Statement of Principles concerning human immunodeficiency virus infection (Balance of Probabilities) (No. 6 of 2019).

Background

2.             The Repatriation Medical Authority (the Authority), under subsection 196B(8) of the Veterans' Entitlements Act 1986 (the VEA), repeals Instrument No. 6 of 2010 (Federal Register of Legislation No. F2010L00013) determined under subsection 196B(3) of the VEA concerning human immunodeficiency virus.

3.             The Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that human immunodeficiency virus infection and death from human immunodeficiency virus 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 human immunodeficiency virus infection (Balance of Probabilities) (No. 6 of 2019).  This Instrument will in effect replace the repealed Statement of Principles.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, human immunodeficiency virus infection or death from human immunodeficiency virus 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 19 October 2016 concerning human immunodeficiency virus 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:

  • adopting the latest revised Instrument format, which commenced in 2015;
  • specifying a day of commencement for the Instrument in section 2;
  • changing the title of the Instrument to 'human immunodeficiency virus infection';
  • revising the definition of 'human immunodeficiency virus 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 HIV-1 or HIV-2';
  • new factor in subsection 9(2) concerning 'a genital ulcerative disease' or 'non‑ulcerative anogenital sexually transmitted infection' or 'herpes simplex virus type 2 anogential infection'; 
  • new factor in subsection 9(3) concerning 'depot medroxyprogesterone acetate contraception';
  • new factor in subsection 9(4) concerning 'tuberculosis';
  • new definitions of 'MRCA' and 'VEA' in Schedule 1 - Dictionary; and
  • revising the definitions of 'being exposed to HIV-1 or HIV-2', 'relevant service' and 'specified body substance' in Schedule 1 - Dictionary.

Consultation

8.             Prior to determining this Instrument, the Authority advertised its intention to undertake an investigation in relation to human immunodeficiency virus in the Government Notices Gazette of 19 October 2016, 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 during 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 human immunodeficiency virus as advertised in the Government Notices Gazette of 19 October 2016.

References

11.         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. 6 of 2019

Kind of Injury, Disease or Death: Human immunodeficiency virus 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(8) 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 linking 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 human immunodeficiency virus 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, human immunodeficiency virus 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. 6 of 2010; and
  • reflects developments in the available sound medical-scientific evidence concerning human immunodeficiency virus 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, 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 human immunodeficiency virus infection (Balance of Probabilities) (No. 6 of 2019) was enacted to address the need for a comprehensive framework that outlines the circumstances in which human immunodeficiency virus (HIV) infection can be considered related to specific types of service under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA). This legislation was introduced by the Repatriation Medical Authority, which operates under the auspices of the Australian Government, with the policy objective of ensuring that the qualifying conditions for benefits related to HIV infection are reasonable, proportionate, and transparent. The authority determined this statement of principles based on the latest sound medical-scientific evidence, reflecting advancements since the previous instrument was established in 2010. This instrument facilitates the process of making and reviewing claims, ensuring that veterans and service members receive appropriate medical treatment and compensation where HIV infection is linked to their service. The new instrument, which replaces Instrument No. 6 of 2010, aligns with human rights by promoting the right to social security, an adequate standard of living, and the highest attainable standard of physical and mental health, ensuring that these rights are exercised without discrimination. It also specifies the factors necessary to establish a connection between HIV infection and particular service circumstances, thereby guiding the assessment and review processes under both the VEA and the MRCA.

Scope and Application

The Statement of Principles concerning human immunodeficiency virus infection (Balance of Probabilities) (No. 6 of 2019) applies to individuals making claims under the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004, particularly those who have served in eligible war service, defence service, or peacetime service, and who are dealing with human immunodeficiency virus infection. This Statement of Principles is designed to facilitate the assessment and determination of claims related to HIV infection, ensuring that the connection between the infection and the circumstances of service is established on the balance of probabilities. The principles outlined in this instrument are applicable nationally, as it is determined under the authority of the Repatriation Medical Authority and affects veterans and service personnel across Australia. The instrument replaces the previous Instrument No. 6 of 2010 and reflects updated medical-scientific evidence. It does not introduce any new exclusions or exemptions, but rather refines the factors considered in determining a claim, ensuring the process remains both accurate and fair. The application of this Statement of Principles can be further extended or specified through subordinate instruments, which may provide additional details or clarifications as necessary.

Key Provisions

The main operative sections of the Statement of Principles concerning human immunodeficiency virus infection (Balance of Probabilities) (No. 6 of 2019) (the Instrument) focus on setting out the circumstances under which human immunodeficiency virus (HIV) infection and related death can be considered connected to particular kinds of service. Section 2 of the Instrument specifies its commencement date, and Section 5 details the factors that must exist for a connection to be made on the balance of probabilities. This connection applies to eligible war service (other than operational service), defence service (other than hazardous service and British nuclear test defence service), and peacetime service as defined under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA). The Instrument also revises definitions and adopts a new format to reflect the latest sound medical-scientific evidence. The Instrument imposes several obligations on the parties it governs. It requires claimants to provide evidence that aligns with the factors outlined in the Statement of Principles when seeking compensation or medical treatment related to HIV infection. The Repatriation Commission, which assesses claims under the VEA, must apply these principles when evaluating the eligibility of claims. Similarly, the Military Rehabilitation and Compensation Commission, which deals with claims under the MRCA, must use the Statement of Principles to determine the connection between service and HIV infection. Both commissions are also required to facilitate the review of their decisions by the Veterans' Review Board and the Administrative Appeals Tribunal. Breaches of the requirements set out in the Instrument can lead to civil or criminal consequences, though the specific nature of these consequences is not detailed in the explanatory statement. The penalties for non-compliance would typically be determined under the relevant sections of the VEA and the MRCA, which may include fines or other legal actions. The Instrument, however, does not specify the exact penalties within its text, leaving it to the governing acts to outline the repercussions of non-compliance. The overarching aim is to ensure that claims are assessed fairly and in accordance with the sound medical-scientific evidence available, thereby protecting the rights of claimants and the integrity of the compensation process.

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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.