Statement of Principles concerning malignant neoplasm of unknown primary site (Balance of Probabilities) (No. 104 of 2022)

Administered by Department of Veterans' Affairs

Legislation au F2022L01380 In force Legislative Instrument

Legislation content

EXPLANATORY STATEMENT

 

Statement of Principles concerning

MALIGNANT NEOPLASM OF UNKNOWN PRIMARY SITE

(Balance of PROBABILITIES) (NO. 104 OF 2022)

 

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 unknown primary site (Balance of Probabilities) (No. 104 of 2022).

Background

2.             The Repatriation Medical Authority (the Authority), under subsection 196B(8) of the Veterans' Entitlements Act 1986 (the VEA), repeals Instrument No. 81 of 2014 (Federal Register of Legislation No. F2014L01143) determined under subsections 196B(3) and (8) of the VEA concerning malignant neoplasm of unknown primary site.

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 unknown primary site and death from malignant neoplasm of unknown primary site 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 unknown primary site (Balance of Probabilities) (No. 104 of 2022).  This Instrument will in effect replace the repealed Statement of Principles.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 unknown primary site or death from malignant neoplasm of unknown primary site 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 unknown primary site 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 unknown primary site' in subsection 7(2);
  • revising the reference to 'ICD-10-AM code' in subsection 7(4);
  • revising the factor in subsection 9(1) concerning having smoked tobacco products;
  • new factor in subsection 9(2) concerning consuming alcohol;
  • revising the factor in subsection 9(3) concerning ionising radiation, by the inclusion of a note;
  • revising the factor in subsection 9(4) concerning having infection with human papillomavirus type 16 or 18, for squamous cell carcinoma of unknown primary site of the head and neck only;
  • new factor in subsection 9(5) concerning having infection with a specified human papillomavirus, for squamous cell carcinoma of unknown primary site involving the inguinal lymph nodes only;
  • new factor in subsection 9(6) concerning having infection with Epstein-Barr virus, for squamous cell carcinoma of unknown primary site of the head and neck only;
  • new definitions of 'MRCA', 'one pack-year', 'specified human papillomavirus', 'squamous cell carcinoma of unknown primary site of the head and neck' and 'VEA' in the Schedule 1 - Dictionary;
  • revising the definition of 'relevant service' in the Schedule 1 – Dictionary; and
  • deleting the definition of 'head and neck squamous cell carcinoma of unknown primary site', '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 unknown primary site 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

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 unknown primary site as advertised in the Government Notices Gazette of 2 November 2021.

References

13.         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. 104 of 2022

Kind of Injury, Disease or Death: Malignant neoplasm of unknown primary site

 

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 unknown primary site;
  • 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 unknown primary site 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. 81 of 2014; and
  • reflects developments in the available sound medical-scientific evidence concerning malignant neoplasm of unknown primary site 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 Unknown Primary Site (Balance of Probabilities) (No. 104 of 2022) was enacted to address the issue of determining the connection between malignant neoplasm of unknown primary site and specific types of service rendered by individuals. This legislative instrument was introduced by the Repatriation Medical Authority (the Authority) under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA). The primary objective of this Statement of Principles is to outline the factors that must exist, and which of those factors must be related to eligible service, before it can be said that, on the balance of probabilities, malignant neoplasm of unknown primary site or death from malignant neoplasm of unknown primary site is connected with the circumstances of that service. The Statement of Principles aims to facilitate claimants in making, and the Repatriation Commission and the Military Rehabilitation and Compensation Commission in assessing, claims under the VEA and the MRCA respectively. It also 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 unknown primary site is connected with the circumstances of eligible service rendered by a person. This instrument was determined to replace Instrument No. 81 of 2014 and reflects the developments in the available sound medical-scientific evidence concerning malignant neoplasm of unknown primary site that have occurred since the earlier instrument was determined. The Statement of Principles is compatible with human rights and promotes the rights of veterans, current and former Defence Force members, and other persons such as 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 malignant neoplasm of unknown primary site (Balance of Probabilities) (No. 104 of 2022) applies to veterans and other eligible persons who have been diagnosed with malignant neoplasm of unknown primary site and are seeking medical treatment and compensation under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA). The Statement of Principles specifies the factors that must exist for it to be said that, on the balance of probabilities, the malignant neoplasm of unknown primary site is connected with the circumstances of eligible service rendered by a person. This includes the types of service that may be considered eligible, such as eligible war service, defence service, and peacetime service. The Statement of Principles has been determined under the VEA and the MRCA and applies to the whole of Australia. The Statement of Principles incorporates the latest medical-scientific evidence and replaces the previous Instrument No. 81 of 2014. Subordinate instruments such as regulations or guidelines may be used to further extend or restrict the application of the Statement of Principles. The Statement of Principles is compatible with human rights and does not derogate from any human rights. Instead, it promotes a number of 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. The Statement of Principles ensures that these 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. The Repatriation Medical Authority has determined this Statement of Principles in accordance with the requirements of the VEA and the MRCA, and it is available to the public on the Authority's website or by contacting the Registrar.

Key Provisions

The main operative sections of the Statement of Principles concerning malignant neoplasm of unknown primary site (Balance of Probabilities) (No. 104 of 2022) (the Instrument) determine the connection between the specified kinds of service and malignant neoplasm of unknown primary site. The Instrument outlines the circumstances in which a malignant neoplasm of unknown primary site or death from such a neoplasm can be connected with particular kinds of service. This is based on the sound medical-scientific evidence available, which indicates it is more probable than not that the condition or death is related to the service. The Instrument specifies the factors that must exist for a connection to be made between the service and the condition or death. These factors include exposure to specific risk factors such as smoking, alcohol consumption, ionising radiation, and infections with human papillomavirus type 16 or 18, and Epstein-Barr virus, among others. The obligations imposed by the Act include the requirement for claimants to provide evidence of their service and the presence of the specified factors that connect their service with the malignant neoplasm of unknown primary site. The Repatriation Commission and the Military Rehabilitation and Compensation Commission must assess claims based on the evidence provided and the criteria outlined in the Instrument. The Veterans' Review Board and the Administrative Appeals Tribunal are responsible for reviewing decisions made by the Commissions. The Repatriation Medical Authority, which determines the Instrument, must ensure it reflects the latest sound medical-scientific evidence and is compatible with human rights. Breaches of the provisions in the Instrument may not directly result in criminal or civil penalties, but failure to comply with the requirements for claiming benefits or providing necessary evidence can lead to the denial of a claim. The consequences of non-compliance may include the rejection of a claim for medical treatment and compensation, with the right to appeal such decisions through the appropriate review bodies. The Instrument ensures that claims are assessed based on sound medical-scientific evidence and that the rights of veterans and Defence Force members are protected. The Instrument does not outline specific criminal or civil penalties for breaches but focuses on ensuring that claims are assessed fairly and transparently. The maximum consequences for non-compliance primarily involve the denial of benefits and the right to seek review and appeal of such decisions. The emphasis is on maintaining the integrity of the claims process and ensuring that claimants receive appropriate support based on the available evidence.

Legal classification tags

Area of Law
Veterans' Law
Instrument
Act
Concepts
Definitions & Interpretation
Reporting & Disclosure Obligations
Compliance Obligations
Rights & Protections

Interactions

Authorises

All Versions

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.