Statement of Principles concerning malignant neoplasm of the breast (Balance of Probabilities) (No. 85 of 2023)

Administered by Department of Veterans' Affairs

Legislation au F2023L01175 In force Legislative Instrument

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EXPLANATORY STATEMENT

 

STATEMENT OF PRINCIPLES CONCERNING

MALIGNANT NEOPLASM OF THE BREAST

(BALANCE OF PROBABILITIES) (NO. 85 OF 2023)

 

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 breast (Balance of Probabilities) (No. 85 of 2023).

Background

2.             The Repatriation Medical Authority (the Authority), under subsection 196B(8) of the Veterans' Entitlements Act 1986 (the VEA), repeals Instrument No. 97 of 2014 (Federal Register of Legislation No. F2014L01387) determined under subsections 196B(3) and (8) of the VEA concerning malignant neoplasm of the breast.

3.             The Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that malignant neoplasm of the breast and death from malignant neoplasm of the breast 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 malignant neoplasm of the breast (Balance of Probabilities) (No. 85 of 2023).  This Instrument will in effect replace the repealed Statement of Principles.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 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, malignant neoplasm of the breast or death from malignant neoplasm of the breast 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.

6.             This Instrument results from an investigation notified by the Authority in the Government Notices Gazette of 10 May 2022 concerning malignant neoplasm of the breast 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 breast' in subsection 7(2);
  • revising the reference to 'ICD-10-AM code' in subsection 7(4);
  • revising the factor in subsection 9(2) concerning taking menopausal hormone therapy;
  • revising the factor in subsection 9(3) concerning using a combined oral contraceptive pill;
  • revising the factor in subsection 9(4) concerning taking disthylstilbestrol while pregnant;
  • revising the factor in subsection 9(7) concerning being pregnant;
  • revising the factor in subsection 9(8) concerning having a first live birth after the age of 30 years;
  • revising the factor in subsection 9(9) concerning for females only, having smoked tobacco products;
  • revising the factor in subsection 9(10) concerning for females only, consuming alcohol;
  • revising the factor in subsection 9(11) concerning inability to undertake any physical activity greater than 3 METs;
  • new definitions of '8-hour time-weighted average', 'BMI', 'having been exposed to second-hand smoke', 'menopausal hormone therapy', 'MRCA', 'one pack-year', 'parous', 'ppm-years' and 'VEA' in Schedule 1 - Dictionary;
  • revising the definition of 'being obese' in Schedule 1 - Dictionary; and
  • deleting the definitions of 'alcohol', 'combined oral contraceptive pill', 'hormone replacement therapy' and 'pack-years of cigarettes, or the equivalent thereof in other tobacco products'.

 

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 www.rma.gov.au or from the Repatriation Medical Authority, Level 8, 480 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 breast in the Government Notices Gazette of 10 May 2022, 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.

11.         On 23 May 2023, the Authority wrote to organisations representing veterans, service personnel and their dependants regarding the proposed Instrument and the medical-scientific material considered by the Authority.  This letter emphasised the deletion of factors relating to; "using digoxin for a continuous period of at least one year before the clinical onset of malignant neoplasm of the breast, and where use of digoxin has ceased, the clinical onset of malignant neoplasm of the breast has occurred within 5 years of cessation"; and "for males and postmenopausal females only, having diabetes mellitus before the clinical onset of malignant neoplasm of the breast".  The Authority provided an opportunity to the organisations to make representations in relation to the proposed Instrument prior to its determination.  No submissions were received for consideration by the Authority.  No changes were made to the proposed Instrument following this consultation process.

Human Rights

12.         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

13.         The determining of this Instrument finalises the investigation in relation to malignant neoplasm of the breast as advertised in the Government Notices Gazette of 10 May 2022.

References

14.         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. 85 of 2023

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

 

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 malignant neoplasm of the breast;
  • 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, malignant neoplasm of the breast 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. 97 of 2014; and
  • reflects developments in the available sound medical-scientific evidence concerning malignant neoplasm of the breast 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 malignant neoplasm of the breast (Balance of Probabilities) (No. 85 of 2023), enacted by the Repatriation Medical Authority under the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004, addresses the gap in the recognition of the link between malignant neoplasm of the breast and particular kinds of service. The Repatriation Medical Authority, having reviewed the latest sound medical-scientific evidence, determined that it is more probable than not that malignant neoplasm of the breast and death from malignant neoplasm of the breast can be related to certain services. This Statement of Principles outlines the factors that must exist, and which must be related to specific types of service, for a connection to be established on the balance of probabilities. The primary objective of this instrument is to facilitate claims under the VEA and the MRCA by specifying the circumstances for extending medical treatment and compensation to eligible persons. The Authority, having examined the available evidence, determined that this Statement of Principles replaces the previous Instrument No. 97 of 2014 and reflects advancements in medical-scientific understanding concerning malignant neoplasm of the breast. This legislative instrument is designed to ensure that claimants and the relevant Commissions can assess claims more effectively, thereby improving the quality of medico-scientific outcomes under the Acts. Additionally, the Statement of Principles is compatible with human rights, promoting the rights of veterans, Defence Force members, and their dependents by ensuring reasonable, proportionate, and transparent conditions for benefit eligibility.

Scope and Application

The Statement of Principles concerning malignant neoplasm of the breast (Balance of Probabilities) (No. 85 of 2023) applies to veterans and current or former Defence Force members who have developed malignant neoplasm of the breast, as well as their dependants, and it is relevant for claims under the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004. The principles set out in the Statement of Principles are designed to guide the assessment of claims by the Repatriation Commission and the Military Rehabilitation and Compensation Commission, and subsequent review by the Veterans' Review Board and the Administrative Appeals Tribunal. The legislation addresses the connection between the development of malignant neoplasm of the breast and specific types of service rendered, including eligible war service, defence service, and peacetime service, based on the balance of probabilities. This legislative instrument replaces the previously repealed Instrument No. 97 of 2014 and incorporates recent developments in sound medical-scientific evidence. The determination of this instrument concludes the investigation into malignant neoplasm of the breast as advertised in the Government Notices Gazette on 10 May 2022. The instrument is compatible with human rights as it does not infringe upon any rights and actively promotes the rights of veterans and Defence Force members, including their right to social security and to the highest attainable standard of health.

Key Provisions

The primary sections of the Statement of Principles concerning malignant neoplasm of the breast (Balance of Probabilities) (No. 85 of 2023) include section 5, which outlines the specific factors that must be present and related to particular types of service to establish a connection between malignant neoplasm of the breast or death from it and the service circumstances. These types of service include eligible war service (excluding operational service) under the Veterans' Entitlements Act 1986 (VEA), defence service (excluding hazardous service and British nuclear test defence service) under the VEA, and peacetime service under the Military Rehabilitation and Compensation Act 2004 (MRCA). This instrument aims to replace the repealed Instrument No. 97 of 2014 and incorporates the latest medical-scientific evidence. The obligations and requirements imposed by this Act on parties and entities it governs are primarily centered around the assessment and determination of claims related to malignant neoplasm of the breast. The Repatriation Medical Authority is required to apply the Statement of Principles when assessing claims under the VEA and MRCA. Claimants must provide evidence that links their malignant neoplasm of the breast or death from it to the specified types of service, as outlined in the Statement of Principles. The Repatriation Commission and the Military Rehabilitation and Compensation Commission are responsible for reviewing the claims based on the factors set forth in the Statement of Principles. The Statement of Principles includes provisions for offences, penalties, or consequences for breach. While the Statement of Principles itself does not explicitly outline penalties for non-compliance, the VEA and MRCA contain provisions that could apply in cases where claims are made in bad faith or with fraudulent intent. Under section 196D(1) of the VEA, a person who makes a false or misleading statement in a claim for benefits may be subject to penalties, including fines and imprisonment. Similarly, section 128 of the MRCA provides for penalties for fraudulent claims, which could include fines and imprisonment. The maximum penalties for such offences are determined by the respective acts and can vary based on the severity and intent of the offence. In conclusion, the Statement of Principles concerning malignant neoplasm of the breast (Balance of Probabilities) (No. 85 of 2023) sets out the necessary factors for establishing a connection between the disease and specific types of service, imposes obligations on claimants and authorities to assess claims based on these factors, and references potential penalties for fraudulent claims under the VEA and MRCA. This legislative instrument is designed to ensure that compensation and benefits are provided to eligible individuals in a transparent and evidence-based manner.

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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.