REPATRIATION MEDICAL AUTHORITY
INSTRUMENT NO. 61 of 2009
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. 173 of 1995 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, Instrument No. 61 of 2009 concerning malaria. 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, malaria or death from malaria 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 2 May 2007 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.
6. The contents of the new Instrument are in similar terms as the revoked Instrument. 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 'malaria' in clause 3;
- revising factor 6(a) concerning 'Plasmodium vivax' and 'Plasmodium ovale';
- new factor 6(b) concerning 'being bitten by a mosquito infected with Plasmodium vivax or Plasmodium ovale';
- new factor 6(c) concerning 'being exposed to Plasmodium malariae, Plasmodium falciparum or simian malaria species';
- new factor 6(d) concerning 'human immunodeficiency virus';
- new factor 6(e) concerning 'being pregnant';
- new definitions of 'being exposed to Plasmodium malariae, Plasmodium falciparum or simian malaria species', 'being exposed to Plasmodium vivax or Plasmodium ovale as specified', 'death from malaria', 'ICD-10-AM code', 'relevant service' and 'terminal event' in clause 9;
- deleting definition of 'being in an area described in the Schedule' and 'ICD code';
- deleting the 'Schedule' 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 malaria in the Government Notices Gazette of 2 May 2007, 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 malaria as advertised in the Government Notices Gazette of 2 May 2007.
10. 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 Secretariat
GPO Box 1014
BRISBANE QLD 4001
Overview
The Repatriation Medical Authority Instrument No. 61 of 2009 is an amendment to the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004, enacted to address the connection between malaria and specific types of military service. The Repatriation Medical Authority, under the Veterans' Entitlements Act, determined that it is more probable than not that malaria and death from malaria can be related to particular kinds of service. The new instrument, which revokes the previous Instrument No. 173 of 1995, aims to replace the outdated Statement of Principles with updated medical-scientific evidence. The policy objective is to ensure that claims for compensation are determined based on the most current and accurate information regarding the link between military service and malaria. This new instrument reflects the latest revised format and incorporates updated definitions and factors related to malaria, clarifying the circumstances under which a connection to service can be established for the purposes of both the Veterans' Entitlements Act and the Military Rehabilitation and Compensation Act.
Scope and Application
The Repatriation Medical Authority Instrument No. 61 of 2009, under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA), pertains to the determination of a new Statement of Principles regarding malaria. This Instrument applies to veterans and service personnel who have contracted malaria or died from malaria as a result of their service. The application of this legislation extends to those who have rendered eligible war service, defence service, or peacetime service as defined in the VEA and MRCA respectively. The Instrument sets out the factors that must be considered to establish a connection between malaria or death from malaria and the service circumstances, including exposure to specific types of malaria and other related factors. This new Instrument replaces the previously revoked Instrument No. 173 of 1995. The application of this Act is national in scope and is determined by the Military Rehabilitation and Compensation Commission for claims made on or after 1 July 2004, pursuant to section 319 of the MRCA. The Authority’s determination of this new Instrument concludes the investigation into malaria that was advertised in the Government Notices Gazette on 2 May 2007.
Key Provisions
The key provisions of this legislation, specifically Instrument No. 61 of 2009, are concerned with the determination of a new Statement of Principles concerning malaria, replacing the previously revoked Instrument No. 173 of 1995 (subsection 196B(8) of the Veterans' Entitlements Act 1986). This new instrument sets out the medical-scientific evidence on which the Repatriation Medical Authority (the Authority) has based its determination that it is more probable than not that malaria and death from malaria can be related to particular kinds of service (subsection 196B(3) of the VEA). The new Statement of Principles outlines the specific factors that must exist and be related to eligible war service, defence service, or peacetime service for a connection to be made between malaria or death from malaria and the circumstances of that service (section 4). The document also reflects changes in legislative format since the previous instrument, including the adoption of the latest revised Instrument format, the deletion of the ICD code from the Instrument header, and the revision of definitions and factors (sections 6 and 7).
The obligations and requirements imposed by this legislation on the parties it governs include the necessity for the Authority to base its determinations on sound medical-scientific evidence and to provide clear and updated Statements of Principles that accurately reflect the current understanding of the medical conditions in question. The Authority is required to advertise its intention to investigate and to solicit submissions from relevant organisations and individuals with expertise in the field (section 9). The legislation also requires the Authority to determine the new Statement of Principles for the purposes of both the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004, clarifying that claims for compensation for conditions sustained on or after 1 July 2004 are to be determined by the Military Rehabilitation and Compensation Commission in reference to these Statements of Principles (sections 3 and 7). Furthermore, the Authority must ensure that any person or organisation referred to in subsection 196E(1)(a) to (c) of the VEA can access a list of references relating to the condition (section 10).
The legislation does not explicitly state any offences, penalties, or civil/criminal consequences for breach. However, the Authority's role in determining the validity of claims for compensation under the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004 implies that any failure to adhere to the provisions of the new Statement of Principles or to provide accurate and updated medical evidence could result in claims being denied or compensation being withheld. The consequences for the Authority or for individuals whose claims are affected would depend on the specific circumstances of each case and the applicable provisions of the relevant Acts.