Statement of Principles concerning malignant neoplasm of the bladder (Reasonable Hypothesis) (No. 83 of 2019)

Administered by Department of Veterans' Affairs

Legislation au F2019L01096 In force Legislative Instrument

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EXPLANATORY STATEMENT

 

STATEMENT OF PRINCIPLES CONCERNING

malignant neoplasm of the bladder

(REASONABLE HYPOTHESIS) (NO. 83 OF 2019)

 

VETERANS' ENTITLEMENTS ACT 1986

MILITARY REHABILITATION AND COMPENSATION ACT 2004

 

  1. This is the Explanatory Statement to the Statement of Principles concerning malignant neoplasm of the bladder (Reasonable Hypothesis) (No. 83 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. 96 of 2011 (Federal Register of Legislation No. F2011L01728) determined under subsections 196B(2) and (8) of the VEA concerning malignant neoplasm of the bladder.

3.             The Authority is of the view that there is sound medical-scientific evidence that indicates that malignant neoplasm of the bladder and death from malignant neoplasm of the bladder 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 malignant neoplasm of the bladder (Reasonable Hypothesis) (No. 83 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  This Instrument will in effect replace the repealed Statement of Principles.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 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 bladder  or death from malignant neoplasm of the bladder, 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 6 November 2018 concerning malignant neoplasm of the bladder  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;
  • revising the definition of  'malignant neoplasm of the bladder' in subsection 7(2);
  • revising the reference to 'ICD-10-AM code' in subsection 7(4);
  • revising the factor in subsection 9(1) concerning smoking;
  • revising the factors in subsections 9(3) and 9(4) concerning exposure to polycyclic aromatic hydrocarbons;
  • revising the factors in subsections 9(5) and 9(6) concerning aromatic amines;
  • revising the factor in subsection 9(7) concerning tetrachloroethylene;
  • new factor in subsection 9(8) concerning 2-mercaptobenzothiazole exposure;
  • revising the factor in subsection 9(9) concerning diesel engine exhaust exposure;
  • new factor in subsection 9(10) concerning exposure to lead;
  • revising the factor in subsection 9(12) concerning working as a hairdresser or barber;
  • revising the factor in subsection 9(13) concerning working as a painter;
  • revising the factor in subsection 9(15) concerning chronic renal failure;
  • revising the factor in subsection 9(16) concerning infection of the bladder with Schistosoma haematobium;
  • revising the factor in subsection 9(17) concerning indwelling bladder catheter or other foreign boy in the bladder;
  • revising the factor in subsection 9(18) concerning neurogenic bladder;
  • new factor in subsection 9(19) concerning chronic urinary tract infection;
  • revising the factor in subsection 9(21) concerning benign prostatic hyperplasia;
  • revising the factor in subsection 9(22) concerning ingesting aristolochic acid;
  • new factor in subsection 9(27) concerning taking opium;
  • new definitions of 'being exposed to lead as specified', 'chronic renal failure', 'chronic urinary tract infection', 'lead risk work as specified', 'MRCA', 'soot', 'specified industrial or manufacturing process 1', 'specified industrial or manufacturing process 2', 'specified list of aromatic amines', 'specified list of agents containing high concentrations of polycyclic aromatic hydrocarbons', 'specified list of aromatic amines', 'untreated or mildly treated mineral oils' and 'VEA' in Schedule 1 - Dictionary;
  • revising the definitions of 'neurogenic bladder', 'pack-years of cigarettes, or the equivalent thereof in other tobacco products', 'phenacetin', 'relevant service' and 'working as a painter' in Schedule 1 – Dictionary; and
  • deleting the definitions of 'an aromatic amine from the specified list', 'an enclosed space' and 'in the specified circumstances'.

Incorporation

8.             The definition of "cumulative equivalent dose" contained in the Schedule 1 – Dictionary incorporates the Guide to calculation of 'cumulative equivalent dose' for the purpose of applying ionising radiation factors contained in Statements of Principles determined under Part XIA of the Veterans' Entitlements Act 1986 (Cth), Australian Radiation Protection and Nuclear Safety Agency, as in force on 2 August 2017.  This writing is incorporated pursuant to subsection 14(b) of the Legislation Act 2003. 

9.             A copy of this document is available to any person on the website of the Repatriation Medical Authority at http://www.rma.gov.au or from the Repatriation Medical Authority, Level 8, 259 Queen St, Brisbane, Queensland 4000, by contacting the Registrar on telephone (07) 3815 9404.

Consultation

10.         Prior to determining this Instrument, the Authority advertised its intention to undertake an investigation in relation to malignant neoplasm of the bladder in the Government Notices Gazette of 6 November 2018, 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.  Two submissions were received for consideration by the Authority during the investigation.

Human Rights

11.         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

12.         The determining of this Instrument finalises the investigation in relation to malignant neoplasm of the bladder as advertised in the Government Notices Gazette of 6 November 2018.

References

13.         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. 83 of 2019

Kind of Injury, Disease or Death: Malignant neoplasm of the bladder

 

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(2) 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 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 bladder;
  • 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 bladder with the circumstances of eligible service rendered by a person, as set out in clause 5 of the Explanatory Statement;
  • replaces Instrument No. 96 of 2011; and
  • reflects developments in the available sound medical-scientific evidence concerning malignant neoplasm of the bladder 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 Malignant Neoplasm of the Bladder (Reasonable Hypothesis) (No. 83 of 2019) is an instrument determined by the Repatriation Medical Authority under subsection 196B(2) of the Veterans' Entitlements Act 1986 (VEA). This instrument replaces the previous Statement of Principles No. 96 of 2011 and addresses the gap in available sound medical-scientific evidence concerning malignant neoplasm of the bladder in relation to military service. The purpose of this instrument is to facilitate claims under the VEA and the Military Rehabilitation and Compensation Act 2004 by outlining the minimum factors that must exist to raise a reasonable hypothesis connecting malignant neoplasm of the bladder with the circumstances of eligible service rendered by a person. The instrument also promotes the human rights of veterans and their dependents by facilitating the assessment and determination of social security benefits and compensation. The instrument is compatible with human rights as it does not derogate from and promotes several human rights, including the right to social security, an adequate standard of living, and the highest attainable standard of physical and mental health. The instrument reflects the latest sound medical-scientific evidence concerning malignant neoplasm of the bladder and its connection to military service, and incorporates the Guide to calculation of 'cumulative equivalent dose' for the purpose of applying ionising radiation factors contained in Statements of Principles determined under Part XIA of the VEA. The instrument was determined following an investigation into malignant neoplasm of the bladder, which involved examining the available sound medical-scientific evidence and considering submissions from relevant organisations and individuals.

Scope and Application

The Statement of Principles concerning malignant neoplasm of the bladder (Reasonable Hypothesis) (No. 83 of 2019) applies to veterans and current or former members of the Defence Force who are seeking compensation and medical treatment for bladder cancer under the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004. It sets out the minimum factors that must exist and be related to specific types of service, such as operational, hazardous, or peacekeeping service, to establish a reasonable hypothesis that the bladder cancer is connected to the service. The factors include exposure to certain substances, occupations, and medical conditions that have been identified by sound medical-scientific evidence as potential causes of bladder cancer. The Statement of Principles is intended to assist claimants in making claims and the Repatriation Commission and Military Rehabilitation and Compensation Commission in assessing claims. It also facilitates the review of such decisions by the Veterans' Review Board and the Administrative Appeals Tribunal. The instrument replaces a previous Statement of Principles concerning malignant neoplasm of the bladder determined in 2011 and incorporates changes to the definition of bladder cancer and exposure factors based on the latest medical-scientific evidence. The Statement of Principles has a national reach, applying across Australia to eligible claimants under the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004. There are no stated exclusions or exemptions from the application of the Statement of Principles. However, the instrument notes that the factors set out are not exhaustive and that other factors may be relevant in individual cases. The Statement of Principles may be extended or restricted through subordinate instruments made under the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004.

Key Provisions

The Statement of Principles concerning malignant neoplasm of the bladder (Reasonable Hypothesis) (No. 83 of 2019), as detailed in sections 1 to 13 of the Explanatory Statement, is a legislative instrument that sets out the circumstances under which malignant neoplasm of the bladder, or death from such a condition, can be reasonably connected to certain types of service rendered by a person. These services include operational, peacekeeping, hazardous, and British nuclear test defence services under the Veterans' Entitlements Act 1986 (VEA), and warlike and non-warlike services under the Military Rehabilitation and Compensation Act 2004 (MRCA). The determination of these principles is based on sound medical-scientific evidence, which the Repatriation Medical Authority (the Authority) has reviewed and updated since the previous Statement of Principles was determined in 2011. The new Statement of Principles reflects the latest evidence and incorporates a revised definition of 'malignant neoplasm of the bladder', updated factors that may relate to the development of the condition, and new definitions for various terms relevant to the assessment of claims. The obligations imposed by this Statement of Principles primarily concern the assessment and review of claims for benefits and compensation related to malignant neoplasm of the bladder. The Authority is tasked with applying these principles when determining whether a claim should be accepted, while the Repatriation Commission and the Military Rehabilitation and Compensation Commission are responsible for assessing and reviewing claims based on these principles. Claimants must provide evidence that aligns with the factors outlined in the Statement of Principles to substantiate their claims. Furthermore, the Veterans' Review Board and the Administrative Appeals Tribunal are responsible for reviewing decisions made under the VEA and the MRCA, respectively, ensuring that the principles are applied correctly in the assessment process. Breaches of the obligations imposed by the Statement of Principles, or misrepresentations in the claims process, can result in civil and criminal consequences. While the Statement of Principles itself does not explicitly outline penalties, the VEA and the MRCA provide for various offences and penalties related to fraudulent claims, false statements, and other breaches of legislative requirements. For example, under section 122 of the VEA, a person who knowingly or recklessly makes a false statement in a claim for benefits can be subject to a penalty of up to five years' imprisonment or a fine of up to 5,000 penalty units, or both. Similarly, under section 144 of the MRCA, a person who knowingly or recklessly makes a false statement in a claim for compensation can be subject to a penalty of up to two years' imprisonment or a fine of up to 1,000 penalty units, or both. The Statement of Principles, therefore, indirectly contributes to the enforcement of these penalties by providing the criteria against which claims are assessed.

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