Statement of Principles concerning malaria (Reasonable Hypothesis) (No. 46 of 2017)

Administered by Department of Veterans' Affairs

Legislation au F2017L01049 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

STATEMENT OF PRINCIPLES CONCERNING

MALARIA

(REASONABLE HYPOTHESIS) (NO. 46 OF 2017)

 

VETERANS' ENTITLEMENTS ACT 1986

MILITARY REHABILITATION AND COMPENSATION ACT 2004

 

  1. This is the Explanatory Statement to the Statement of Principles concerning malaria (Reasonable Hypothesis) (No. 46 of 2017).

Background

2.             The Repatriation Medical Authority (the Authority), under subsection 196B(8) of the Veterans' Entitlements Act 1986 (the VEA), revokes Instrument No. 60 of 2009, determined under subsection 196B(2) of the VEA concerning malaria.

3.             The Authority is of the view that there is sound medical-scientific evidence that indicates that malaria and death from malaria can be related to particular kinds of service.  The Authority has therefore determined pursuant to subsection 196B(2) of the VEA a Statement of Principles concerning malaria (Reasonable Hypothesis) (No. 46 of 2017).  This Instrument will in effect replace the revoked 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 as a minimum exist, and which of those factors must be related to the following kinds of service rendered by a person:

 operational service under the VEA;

 peacekeeping service under the VEA;

 hazardous service under the VEA;

 British nuclear test defence service under the VEA;

 warlike service under the MRCA;

 non-warlike service under the MRCA,

before it can be said that a reasonable hypothesis has been raised connecting malaria or death from malaria, 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 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.

7.             The contents of this Instrument are in similar terms as the revoked Instrument.  Comparing this Instrument and the revoked 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;
  • revising the definition of 'malaria' in subsection 7(2);
  • revising the reference to 'ICD-10-AM code' in subsection 7(4);
  • revising the factor in subsection 9(2) concerning 'being exposed to Plasmodium vivax or Plasmodium ovale', by the inclusion of a Note;
  • revising the factor in subsection 9(3) concerning 'being exposed to Plasmodium malariae, Plasmodium falciparum or simian malaria species';
  • new factors in subsections 9(4) & 9(6) concerning 'immunocompromised state';
  • new factor in subsection 9(5) concerning 'being pregnant', for clinical onset;
  • revising the factor in subsection 9(7) concerning 'being pregnant', for clinical worsening;
  • new factor in subsection 9(8) concerning 'a systemic infectious disease', for malaria due to Plasmodium vivax or Plasmodium ovale only, for clinical worsening only;
  • deleting the factor concerning 'human immunodeficiency virus' which is now subsumed by the factor in subsection 9(6) concerning 'immunocompromised state';
  • new definitions of 'chronic renal failure', 'immunocompromised state as specified', 'immunosuppressive drug', 'MRCA', 'systemic infectious disease as specified' and 'VEA' in Schedule 1 - Dictionary; and
  • revising the definitions of 'being exposed to Plasmodium malariae, Plasmodium falciparum or simian malaria species as specified' and 'relevant service' in Schedule 1 – Dictionary.

Consultation

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 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, 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 malaria 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. 46 of 2017

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(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 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 as a minimum exist, before it can be said that a reasonable hypothesis has been raised, connecting malaria with the circumstances of eligible service rendered by a person, as set out in clause 5 of the Explanatory Statement;
  • replaces Instrument No. 60 of 2009; 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, 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 malaria (Reasonable Hypothesis) (No. 46 of 2017) was determined by the Repatriation Medical Authority (the Authority) under subsection 196B(8) of the Veterans' Entitlements Act 1986 (the VEA). This Statement of Principles replaces Instrument No. 60 of 2009, which had been revoked due to the availability of updated medical-scientific evidence. The policy objective of the Statement of Principles is to provide a framework for determining claims under the VEA and the Military Rehabilitation and Compensation Act 2004 (the MRCA) by outlining the minimum factors that must exist to establish a reasonable hypothesis connecting malaria or death from malaria with specific kinds of service. The Authority conducted an investigation and considered the available sound medical-scientific evidence to determine the new Statement of Principles, which was finalised and published in the Government Notices Gazette of 19 October 2016. The Statement of Principles 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. This Statement of Principles aims to facilitate claimants and the Repatriation Commission in assessing claims for medical treatment and compensation related to malaria, and to outline the factors which the current sound medical-scientific evidence indicates must exist before it can be said that a reasonable hypothesis has been raised connecting malaria with the circumstances of eligible service rendered by a person. The Authority's determination of the Statement of Principles reflects developments in the available sound medical-scientific evidence concerning malaria that have occurred since the earlier instrument was determined. The Statement of Principles does not derogate from any human rights and promotes the human rights of veterans, current and former Defence Force members, and their dependents, including the right to social security, an adequate standard of living, and the highest attainable standard of physical and mental health.

Scope and Application

The Statement of Principles concerning malaria (Reasonable Hypothesis) (No. 46 of 2017) applies to the assessment and determination of claims under the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004. It sets out the minimum factors that must exist to establish a reasonable hypothesis connecting malaria or death from malaria with certain types of service rendered by a person, such as operational service, peacekeeping service, hazardous service, British nuclear test defence service, warlike service, and non-warlike service. The Statement of Principles is determined by the Repatriation Medical Authority under the Veterans' Entitlements Act 1986 and replaces the previously revoked Instrument No. 60 of 2009. It reflects the latest sound medical-scientific evidence available to the Authority and aims to facilitate the assessment and determination of claims by the Repatriation Commission, the Veterans' Review Board, and the Administrative Appeals Tribunal. The instrument does not apply to any other types of injury, disease, or death besides malaria and does not derogate from any human rights. It promotes various human rights, including the right to social security, the right to an adequate standard of living, and the right to the enjoyment of the highest attainable standard of physical and mental health.

Key Provisions

The main operative sections of this legislation, the Statement of Principles concerning malaria (Reasonable Hypothesis) (No. 46 of 2017), detail the circumstances under which malaria can be linked to particular kinds of military service for the purposes of claims under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA). This Statement of Principles replaces a previous instrument (Instrument No. 60 of 2009) and incorporates the latest medical-scientific evidence available to the Repatriation Medical Authority (the Authority). It outlines specific factors that must exist to establish a reasonable hypothesis that malaria or death from malaria is connected to the service rendered, such as exposure to certain types of malaria parasites or being in an immunocompromised state. These factors must be related to various kinds of service, including operational, peacekeeping, hazardous, British nuclear test defence service, warlike, and non-warlike service. The obligations imposed by this Act on the parties it governs include the requirement for claimants to provide evidence that links their malaria to their military service, in accordance with the factors specified in the Statement of Principles. The Authority is tasked with assessing these claims based on the sound medical-scientific evidence detailed in the Statement of Principles. The legislation facilitates the review of decisions made by the Repatriation Commission and the Veterans' Review Board, ensuring that claims are assessed fairly and transparently. Additionally, the Authority must ensure that the Statement of Principles is compatible with human rights and freedoms as recognised in international instruments. Breaching the provisions of this Act, or providing false or misleading information in a claim, can lead to various consequences. While specific offences and penalties are not detailed in the provided text, it is reasonable to infer that penalties for providing false information in claims could include fines, imprisonment, or both, as is common in legislation governing veterans' benefits. The severity of penalties would depend on the nature and extent of the breach. The Statement of Principles itself does not outline specific penalties but implies that adherence to the medical-scientific evidence and proper claim procedures is essential to avoid adverse outcomes. The legislation emphasises the importance of basing claims and assessments on sound medical-scientific evidence and ensuring that veterans and their families receive the benefits and compensation they are entitled to, without discrimination. By clearly outlining the factors that must exist to link malaria to military service, the Act ensures that claims are assessed in a manner that is both fair and grounded in the latest scientific understanding of the disease.

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