Statement of Principles concerning malignant neoplasm of the anus and anal canal No. 51 of 2013

Administered by Department of Veterans' Affairs

Legislation au F2013L01638 Not in force Legislative Instrument

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REPATRIATION MEDICAL AUTHORITY

 

INSTRUMENT NO. 51 of 2013

 

VETERANS’ ENTITLEMENTS ACT 1986

MILITARY REHABILITATION AND COMPENSATION ACT 2004

 

EXPLANATORY NOTES FOR TABLING

 

 

  1. The Repatriation Medical Authority (the Authority), under subsection 196B(8) of the Veterans' Entitlements Act 1986 (the VEA), revokes Instrument No. 34 of 2002, determined under subsection 196B(2) of the VEA concerning malignant neoplasm of the anal canal.

 

2.             The Authority is of the view that there is sound medical-scientific evidence that indicates that malignant neoplasm of the anus or anal canal and death from malignant neoplasm of the anus or anal canal 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, Instrument No. 51 of 2013 concerning malignant neoplasm of the anus and anal canal.  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 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 malignant neoplasm of the anus or anal canal or death from malignant neoplasm of the anus or anal canal, with the circumstances of that service.

 

5.             This Instrument results from an investigation notified by the Authority in the Government Notices Gazette of 30 June 2010 concerning malignant neoplasm of the anal canal 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 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 2005;
  • deleting the ICD code from the Instrument header;
  • changing the name of the Instrument to 'malignant neoplasm of the anus and anal canal';
  • new definition of 'malignant neoplasm of the anus and anal canal' in clause 3;
  • revising factor 6(a) concerning 'smoking';
  • revising factor 6(b) concerning 'oncogenic human papilloma virus';
  • new factor 6(c) concerning 'receptive anal intercourse';
  • revising factor 6(d) concerning 'human immunodeficiency virus';
  • revising factor 6(e) concerning 'systemic immunosuppressive therapy';
  • new factor 6(f) concerning 'perianal Crohn's disease';
  • new definition of 'an oncogenic human papilloma virus (HPV)' in clause 9;
  • revising the definitions of 'ICD-10-AM code', 'pack-years of cigarettes, or the equivalent thereof in other tobacco products' and 'relevant service' in clause 9;
  • deleting the definition of 'anogenital human papilloma virus infection'; 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 malignant neoplasm of the anal canal in the Government Notices Gazette of 30 June 2010, 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.             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.

 

10.         The determining of this Instrument finalises the investigation in relation to malignant neoplasm of the anal canal as advertised in the Government Notices Gazette of 30 June 2010.

 

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. 51 of 2013

Kind of Injury, Disease or Death: Malignant neoplasm of the anus and anal canal

 

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).

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 malignant neoplasm of the anus or anal canal;
  • 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 malignant neoplasm of the anus or anal canal with the circumstances of eligible service rendered by a person, as set out in clause 4 of the Explanatory Notes;
  • replaces Instrument No. 34 of 2002; and
  • reflects developments in the available sound medical-scientific evidence concerning malignant neoplasm of the anus and anal canal 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; and
  • the rights of persons with disabilities by facilitating the determination of claims relating to treatment and rehabilitation (Art 26, CRPD).

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 Repatriation Medical Authority Instrument No. 51 of 2013, concerning malignant neoplasm of the anus and anal canal, was enacted to address the problem of linking malignant neoplasm of the anus or anal canal to certain types of military service, particularly in light of new medical-scientific evidence. This Instrument revokes the earlier Instrument No. 34 of 2002 and replaces it with updated criteria based on the latest available evidence. The Authority, under the Veterans' Entitlements Act 1986, determined this Statement of Principles to facilitate claims for compensation under both the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004. The policy objective of this Instrument is to ensure that claimants and the Repatriation Commission can effectively assess claims by outlining the minimum factors that must exist to connect malignant neoplasm of the anus or anal canal with specific types of military service, thereby promoting transparency and fairness in the claims process.

Scope and Application

The Repatriation Medical Authority Instrument No. 51 of 2013, concerning malignant neoplasm of the anus and anal canal, applies to individuals who have rendered particular kinds of service, including operational, peacekeeping, hazardous, British nuclear test defence, warlike, and non-warlike service, under the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004. This instrument facilitates claims for medical treatment and compensation for veterans and current or former Defence Force members who have been diagnosed with malignant neoplasm of the anus or anal canal. The instrument is a replacement for Instrument No. 34 of 2002 and reflects the latest sound medical-scientific evidence available. It outlines the factors that must exist to connect the disease with the service circumstances, and it specifies the types of service that qualify for consideration. The instrument has a national jurisdictional reach as it is determined under the VEA and MRCA. There are no stated exclusions, exemptions, or thresholds within the instrument itself; however, the instrument may be subject to subordinate instruments that extend or restrict its application. The instrument is compatible with human rights, promoting the 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.

Key Provisions

The key provisions of the Repatriation Medical Authority Instrument No. 51 of 2013 (the Instrument) revolve around the establishment of a Statement of Principles concerning malignant neoplasm of the anus and anal canal. This Statement of Principles is designed to facilitate both the assessment of claims and the determination of eligibility for medical treatment and compensation under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA). The Instrument outlines specific circumstances and factors that must exist to establish a reasonable hypothesis linking the condition to certain types of service rendered by the claimant (section 4). It replaces the previously revoked Instrument No. 34 of 2002, updating the criteria to reflect the latest medical-scientific evidence available (section 2). The Instrument imposes several obligations on both claimants and the Repatriation Medical Authority. Claimants are required to provide evidence that links their malignant neoplasm of the anus or anal canal to their service under the VEA or MRCA, adhering to the specified factors and circumstances outlined in the Statement of Principles. The Authority, in turn, must assess these claims in accordance with the criteria set out in the Instrument, ensuring that the claims are evaluated based on the latest medical-scientific evidence (section 6). The Repatriation Medical Authority must also ensure that the Statement of Principles is compatible with human rights, promoting the rights of veterans and Defence Force members, as well as their dependents, to social security and healthcare benefits. Failure to comply with the requirements set out in the Instrument may result in various consequences. For claimants, not adhering to the specified factors and circumstances may lead to the denial of their claims for medical treatment and compensation. The Authority is mandated to ensure that claims are assessed in line with the Statement of Principles, and any non-compliance on their part could potentially lead to judicial review or administrative action. The Instrument itself is designed to be compatible with human rights, ensuring that the rights of veterans and Defence Force members, as well as their dependents, are protected and promoted (section 9). Under the VEA and MRCA, breaches of the provisions regarding the assessment and determination of claims can result in civil and criminal penalties. For instance, making a false claim or providing false evidence can lead to penalties under section 333 of the VEA, which includes fines and imprisonment. The maximum penalties for these offences are set out in the respective Acts, with the severity of the penalty dependent on the nature and extent of the breach. The Authority is responsible for enforcing these provisions and ensuring that all claims are assessed fairly and in accordance with the law.

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