Statement of Principles concerning malignant neoplasm of the stomach (Balance of Probabilities) (No. 75 of 2023)

Administered by Department of Veterans' Affairs

Legislation au F2023L00943 In force Legislative Instrument

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EXPLANATORY STATEMENT

 

STATEMENT OF PRINCIPLES CONCERNING

MALIGNANT NEOPLASM OF THE STOMACH

(BALANCE OF PROBABILITIES) (NO. 75 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 stomach (Balance of Probabilities) (No. 75 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. 59 of 2014 (Federal Register of Legislation No. F2014L00938) determined under subsections 196B(3) and (8) of the VEA concerning malignant neoplasm of the stomach.

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 stomach and death from malignant neoplasm of the stomach 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 stomach (Balance of Probabilities) (No. 75 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  This Instrument will in effect replace the repealed Statement of Principles.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 stomach or death from malignant neoplasm of the stomach 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 2 November 2021 concerning malignant neoplasm of the stomach 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 stomach' in subsection 7(2);
  • including ICD-10-AM codes for 'malignant neoplasm of the stomach' in subsection 7(3);
  • revising the reference to 'ICD-10-AM code' in subsection 7(4);
  • Revising the factors in Section 9 that must as a minimum exist before it can be said on the balance of probabilities that malignant neoplasm of the stomach or death from malignant neoplasm of the stomach can be connected with the circumstances of a person's relevant service. The revision is required to reflect advances is sound medical scientific evidence that have occurred since the repealed Statement of Principles was made;
  • new factor in subsection 9(7) concerning having a gastric ulcer;
  • new factor in subsection 9(8) concerning having an autoimmune disease;
  • new factor in subsection 9(9) taking a proton pump inhibitor;
  • revising the definitions in the Schedule 1 – Dictionary.

 

Consultation

8.             Prior to determining this Instrument, the Authority advertised its intention to undertake an investigation in relation to malignant neoplasm of the stomach in the Government Notices Gazette of 2 November 2021, 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.

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 malignant neoplasm of the stomach as advertised in the Government Notices Gazette of 2 November 2021.

 

 

References

11.         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. 75 of 2023

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

 

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 stomach;
  • 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 stomach 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. 59 of 2014; and
  • reflects developments in the available sound medical-scientific evidence concerning malignant neoplasm of the stomach 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 Stomach (Balance of Probabilities) (No. 75 of 2023) was enacted to address the need for updated guidelines regarding the connection between malignant neoplasm of the stomach and service rendered by individuals. This legislative instrument was enacted by the Repatriation Medical Authority under the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004. The primary objective of this legislation is to facilitate the assessment and determination of claims for compensation and benefits for veterans, current and former Defence Force members, and their dependents, by outlining the factors that must exist before it can be said that, on the balance of probabilities, malignant neoplasm of the stomach is connected with the circumstances of service rendered by a person. This legislation reflects the latest sound medical-scientific evidence available and replaces the previous Statement of Principles concerning malignant neoplasm of the stomach (No. 59 of 2014). The Statement of Principles is designed to ensure that the qualifying conditions for benefits are reasonable, proportionate, and transparent, while promoting human rights such as the right to social security, an adequate standard of living, and the highest attainable standard of physical and mental health. This legislation is compatible with human rights as it does not derogate from and promotes a number of human rights, 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".

Scope and Application

The Statement of Principles concerning malignant neoplasm of the stomach (Balance of Probabilities) (No. 75 of 2023) applies to eligible veterans, current and former members of the Defence Force, and their dependents who are making claims under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA). The scope of the Act extends to the service rendered by these individuals, including eligible war service, defence service, and peacetime service, and concerns the connection between these services and the development of malignant neoplasm of the stomach. The legislation is applicable nationally within Australia, as it is enacted under Commonwealth jurisdiction. The determination of this Statement of Principles replaces the previously repealed Instrument No. 59 of 2014, with modifications to reflect the latest medical-scientific evidence. Notably, the Statement of Principles does not specify any exclusions, exemptions, or thresholds within its text, though its application may be subject to further regulation through subordinate instruments. This legislative instrument facilitates the assessment of claims by providing a clear framework based on the balance of probabilities, and it is compatible with human rights as it does not derogate from and promotes various human rights, including the right to social security and the right to an adequate standard of living.

Key Provisions

Section 2 of the Statement of Principles (No. 75 of 2023) outlines the repeal of Instrument No. 59 of 2014, which was determined under subsections 196B(3) and (8) of the Veterans' Entitlements Act 1986 (VEA). This new Statement of Principles is intended to replace the repealed one and incorporates the latest revised Instrument format, including specific definitions and ICD-10-AM codes for malignant neoplasm of the stomach. Section 4 of the Statement of Principles details the circumstances under which malignant neoplasm of the stomach or death from such neoplasm can be considered connected with service, which applies to eligible war service, defence service, and peacetime service. The factors outlined in Section 9, such as having a gastric ulcer or taking a proton pump inhibitor, are now required to exist before a connection can be made on the balance of probabilities. The Statement of Principles imposes obligations on the Repatriation Medical Authority (the Authority) to determine and review these principles based on available sound medical-scientific evidence. It also requires the Repatriation Commission and the Military Rehabilitation and Compensation Commission to assess claims in light of these principles. Claimants must provide evidence that aligns with the factors set out in the Statement of Principles to substantiate their claims for medical treatment and compensation under the VEA and the Military Rehabilitation and Compensation Act 2004 (MRCA). The Veterans' Review Board and the Administrative Appeals Tribunal are tasked with reviewing decisions made under these Acts, ensuring they are in accordance with the Statement of Principles. There are no specific offences or penalties outlined in this Statement of Principles itself. However, breaches of the provisions of the VEA or the MRCA, which this Statement of Principles is designed to support, could result in civil or criminal consequences. For instance, making a false statement in a claim under the VEA could be considered an offence under section 199A of the VEA, potentially leading to fines or imprisonment. Similarly, any fraudulent behaviour in the context of claims under the MRCA could be prosecuted under relevant sections of the MRCA or other applicable laws. The exact penalties would depend on the nature and severity of the breach, as stipulated in the respective Acts. This Statement of Principles is compatible with human rights as it does not derogate from any human rights and, in fact, promotes several human rights. It facilitates the assessment and determination of social security benefits, ensuring that the qualifying conditions are reasonable, proportionate, and transparent. It also supports the right to an adequate standard of living and the highest attainable standard of physical and mental health, particularly for veterans, current and former Defence Force members, and their dependents. By promoting these rights, the Statement of Principles ensures they are exercised without discrimination, aligning with international human rights standards.

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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.