Statement of Principles concerning mesothelioma (Balance of Probabilities) (No. 42 of 2024)

Administered by Department of Veterans' Affairs

Legislation au F2024L00740 In force Legislative Instrument

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EXPLANATORY STATEMENT

 

Statement of Principles concerning

MESOTHELIOMA

(Balance of PROBABILITIES) (NO. 42 OF 2024)

 

VETERANS' ENTITLEMENTS ACT 1986

MILITARY REHABILITATION AND COMPENSATION ACT 2004

 

  1. This is the Explanatory Statement to the Statement of Principles concerning mesothelioma (Balance of Probabilities) (No. 42 of 2024).

Background

2.             The Repatriation Medical Authority (the Authority), under subsection 196B(8) of the Veterans' Entitlements Act 1986 (the VEA), repeals Instrument No. 105 of 2015 (Federal Register of Legislation No. F2015L01320) determined under subsections 196B(3) and (8) of the VEA concerning mesothelioma.

3.             The Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that mesothelioma and death from mesothelioma 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 mesothelioma (Balance of Probabilities) (No. 42 of 2024).  This Instrument will in effect replace the repealed Statement of Principles.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, mesothelioma or death from mesothelioma 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 4 January 2023 concerning mesothelioma 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:

  • specifying a day of commencement for the Instrument in section 2;
  • revising the definition of 'mesothelioma' in subsection 7(2);
  • revising the reference to 'ICD-10-AM code' in subsection 7(4);
  • new factor in subsection 9(4) concerning inhaling fluoro-edenite fibres;
  • revising the factor in subsection 9(5) concerning inhaling erionite fibres;
  • new factor in subsection 9(7) concerning having received ablative radiotherapy;
  • revising the factor in subsection 9(8) concerning firefighting;
  • new definition of 'fluoro-edenite' in Schedule 1 - Dictionary; and
  • revising the definitions of 'cumulative equivalent dose' and 'erionite' in Schedule 1 –Dictionary.

Consultation

8.             Prior to determining this Instrument, the Authority advertised its intention to undertake an investigation in relation to mesothelioma in the Government Notices Gazette of 4 January 2023, 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 mesothelioma as advertised in the Government Notices Gazette of 4 January 2023.

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. 42 of 2024

Kind of Injury, Disease or Death: Mesothelioma

 

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 mesothelioma;
  • 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, mesothelioma 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. 105 of 2015; and
  • reflects developments in the available sound medical-scientific evidence concerning mesothelioma 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 mesothelioma (Balance of Probabilities) (No. 42 of 2024) is an instrument determined by the Repatriation Medical Authority under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA). This Statement of Principles repeals Instrument No. 105 of 2015 and replaces it to reflect the latest medical-scientific evidence available. It identifies the factors that must exist for it to be concluded that, on the balance of probabilities, mesothelioma or death from mesothelioma is connected to eligible kinds of service, thereby facilitating claims under both the VEA and MRCA. The purpose of this instrument is to assist in the assessment and determination of benefits and compensation for veterans and current or former Defence Force members suffering from mesothelioma, ensuring that the process is transparent, proportionate, and reasonable, and thereby upholding various human rights including the right to social security and an adequate standard of living. The Legislative Instrument was developed following an investigation notified in the Government Notices Gazette on 4 January 2023, which involved an extensive review of available medical-scientific evidence. The Authority consulted widely, although no submissions were received. The Legislative Instrument is compatible with human rights, as it does not derogate from any rights and promotes several human rights including the right to the highest attainable standard of physical and mental health, and the rights of persons with disabilities. The instrument finalises the investigation concerning mesothelioma and is intended to improve the quality of medico-scientific outcomes under the VEA and MRCA.

Scope and Application

The Statement of Principles concerning mesothelioma (Balance of Probabilities) (No. 42 of 2024) applies to individuals who have served in eligible war service, defence service, or peacetime service, and who have developed mesothelioma or who died from mesothelioma. The application of this Statement of Principles is governed by the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004, and it facilitates the assessment and determination of claims for compensation and benefits by the Repatriation Commission and the Military Rehabilitation and Compensation Commission. This instrument is intended to reflect the latest sound medical-scientific evidence regarding the connection between service and mesothelioma. The application of this Statement of Principles is not restricted geographically, but it is within the jurisdictional scope of the Commonwealth of Australia. There are no specific exclusions or exemptions stated within the instrument, although the factors outlined in the Statement of Principles must be met for a claim to be considered. The instrument may be further extended or restricted through subordinate instruments, as appropriate, to accommodate changes in medical-scientific evidence or legislative requirements.

Key Provisions

The Statement of Principles concerning mesothelioma (Balance of Probabilities) (No. 42 of 2024), issued under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA), outlines the circumstances in which mesothelioma or death from mesothelioma can be linked to certain types of military service. This Statement of Principles (section 2) will replace the previously repealed Instrument No. 105 of 2015 and is effective in guiding claims under the VEA and the MRCA (section 4). The document specifies the factors that must exist for mesothelioma to be connected to eligible war service, defence service, and peacetime service (section 5). It provides a detailed examination of the sound medical-scientific evidence, including new factors such as inhaling fluoro-edenite fibres and ablative radiotherapy (section 6 and 7). The Repatriation Medical Authority (the Authority) is obligated to determine such instruments under the VEA and the MRCA, focusing on the sound medical-scientific evidence available (section 4). The Authority is required to consult with relevant stakeholders, including veterans' organisations, service personnel, and experts in the field, although no submissions were received for this particular investigation (section 8). The Authority must also ensure that the determination of this Statement of Principles is compatible with human rights, as outlined in the Human Rights (Parliamentary Scrutiny) Act 2011 (section 9). Breaches of the provisions in the Statement of Principles could result in significant legal consequences. Under the VEA and the MRCA, failure to adhere to the outlined factors for connecting mesothelioma to military service could lead to disputes in the assessment and approval of claims for compensation and medical treatment. While the Statement of Principles itself does not impose specific penalties, non-compliance with the underlying acts could result in civil or criminal penalties, depending on the nature of the breach. For instance, providing false information in a claim could lead to penalties under the Crimes Act 1914, including fines and imprisonment. The Authority is tasked with ensuring that the determination of these principles aligns with both the legislative requirements and human rights standards to avoid any adverse legal outcomes.

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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.