Statement of Principles concerning malaria (Balance of Probabilities) (No. 26 of 2026)

Administered by Department of Veterans' Affairs

Legislation au F2026L00151 In force Legislative Instrument

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EXPLANATORY STATEMENT

 

STATEMENT OF PRINCIPLES CONCERNING

MALARIA

(BALANCE OF PROBABILITIES) (NO. 26 OF 2026)

 

VETERANS' ENTITLEMENTS ACT 1986

MILITARY REHABILITATION AND COMPENSATION ACT 2004

 

  1.              This is the Explanatory Statement to the Statement of Principles concerning malaria (Balance of Probabilities) (No. 26 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. 47 of 2017 (Federal Register of Legislation No. F2017L01061) determined under subsection 196B(3) of the VEA concerning malaria.
  2.              The Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that malaria and death from malaria 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 malaria (Balance of Probabilities) (No. 26 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  This Instrument will in effect replace the repealed Statement of Principles.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, malaria or death from malaria 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 April 2025 concerning malaria 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;
  • revising the factor in subsection 9(1) concerning being exposed to Plasmodium malariae, Plasmodium falciparum or simian malaria species;
  • revising the factor in subsection 9(2) concerning being bitten by a mosquito;
  • revising the factor in subsection 9(3) concerning being exposed to Plasmodium vivax or Plasmodium ovale;
  • revising the factor in subsection 9(5) concerning having infection with human immunodeficiency virus or asplenia;
  • new factor in subsection 9(4) concerning inability to access appropriate chemoprophylaxis;
  • deleting the definitions of being exposed to ‘Plasmodium vivax or Plasmodium ovale as specified’; and
  • deleting the definitions of being exposed to ‘Plasmodium malariae, Plasmodium falciparum or simian malaria species as specified’.

Consultation

  1.              Prior to determining this Instrument, the Authority advertised its intention to undertake an investigation in relation to malaria in the Government Notices Gazette of 28 April 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 malaria as advertised in the Government Notices Gazette of 28 April 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. 26 of 2026

Kind of Injury, Disease or Death: malaria

 

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 malaria;
  • 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, malaria 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. 47 of 2017; and
  • reflects developments in the available sound medical-scientific evidence concerning malaria 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 malaria (Balance of Probabilities) (No. 26 of 2026) was enacted to address the specific issues related to the medical evidence linking malaria and death from malaria to particular kinds of military service. The Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA) serve as the legislative frameworks under which this instrument operates. The Repatriation Medical Authority (the Authority), pursuant to subsection 196B(3) of the VEA, repealed the previous Instrument No. 47 of 2017 and introduced this new statement to better reflect the current medical-scientific evidence available. The purpose of this Statement of Principles is to outline the circumstances under which malaria or death from malaria can be considered connected to the service rendered by a person, thus facilitating the claims process under the VEA and MRCA. This legislative instrument ensures that claims are assessed based on sound medical-scientific evidence, thereby promoting the human rights of veterans and service personnel, including their rights to social security and healthcare.

Scope and Application

The Statement of Principles concerning Malaria (Balance of Probabilities) (No. 26 of 2026) applies to individuals claiming benefits under the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004. This includes veterans, current and former Defence Force members, and their dependents who have contracted malaria or died from the disease as a result of eligible war service, defence service, or peacetime service. The principles set forth in this instrument are intended to facilitate the determination of claims by clearly outlining the factors that must exist to establish a connection between malaria and the circumstances of the service rendered. This legislative instrument is applicable nationally across Australia and is designed to replace the previously repealed Instrument No. 47 of 2017, ensuring that the assessment of malaria-related claims is based on the most current medical-scientific evidence. The Authority has determined that the instrument is compatible with human rights, promoting the rights of veterans, current and former Defence Force members, and their dependents to social security, adequate living standards, and the highest attainable standard of physical and mental health. This instrument is subject to modifications and extensions through subordinate instruments, which may further refine the criteria for claims and ensure that the application remains consistent with the latest medical-scientific evidence. No exclusions, exemptions, or thresholds have been specified in this instrument, and the Authority has ensured that it does not derogate from any human rights as recognised in the International Instruments listed in Section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Key Provisions

The Statement of Principles concerning malaria (Balance of Probabilities) (No. 26 of 2026) outlines the specific conditions that must be met for a claim related to malaria to be considered valid under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA). These conditions include exposure to certain types of malaria, being bitten by a mosquito, and factors such as the inability to access appropriate chemoprophylaxis or having infections like human immunodeficiency virus or asplenia (subsection 9). These provisions are designed to ensure that claims for malaria are assessed based on sound medical-scientific evidence, facilitating the process for both claimants and the authorities involved in the assessment and review of these claims. Under this Act, there are several obligations and requirements imposed on parties involved in the claims process. Claimants must provide evidence that aligns with the specified factors outlined in the Statement of Principles. The Repatriation Commission and the Military Rehabilitation and Compensation Commission are required to assess these claims based on the criteria set out in the Statement, ensuring that the evaluation is thorough and grounded in the most current medical-scientific evidence. The Veterans' Review Board and the Administrative Appeals Tribunal are also tasked with reviewing decisions made by these commissions, ensuring that the process is fair and just. Breaches of the provisions outlined in the Statement of Principles can lead to various consequences, including the denial of claims that do not meet the specified criteria. While the Act does not explicitly outline criminal or civil penalties for non-compliance, the failure to adhere to the stipulated requirements can result in the invalidation of claims, which can have significant implications for claimants seeking medical treatment and compensation. The seriousness of the consequences underscores the importance of accurate and comprehensive evidence submission in line with the Act's requirements. The Statement of Principles is fully compatible with human rights, as it does not derogate from any rights and, in fact, promotes several human rights by facilitating access to social security and healthcare for veterans and their dependants. The principles support 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. This compatibility highlights the Act's role in supporting the welfare and rights of veterans and Defence Force members, aligning with 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.