Statement of Principles concerning methaemoglobinaemia (Balance of Probabilities) (No. 18 of 2019)

Administered by Department of Veterans' Affairs

Legislation au F2019L00223 In force Legislative Instrument

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EXPLANATORY STATEMENT

 

STATEMENT OF PRINCIPLES CONCERNING

METHAEMOGLOBINAEMIA

(BALANCE OF PROBABILITIES) (NO. 18 OF 2019)

 

VETERANS' ENTITLEMENTS ACT 1986

MILITARY REHABILITATION AND COMPENSATION ACT 2004

 

  1. This is the Explanatory Statement to the Statement of Principles concerning methaemoglobinaemia (Balance of Probabilities) (No. 18 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. 48 of 2010 (Federal Register of Legislation No. F2010L01661) determined under subsection 196B(3) of the VEA concerning methaemoglobinaemia.

3.             The Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that methaemoglobinaemia and death from methaemoglobinaemia 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 methaemoglobinaemia (Balance of Probabilities) (No. 18 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  This Instrument will in effect replace the repealed Statement of Principles.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 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, methaemoglobinaemia or death from methaemoglobinaemia 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 14 November 2017 concerning methaemoglobinaemia 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 'methaemoglobinaemia' in subsection 7(2);
  • revising the ICD-10-AM code for 'methaemoglobinaemia' in subsection 7(3);
  • revising the reference to 'ICD-10-AM code' in subsection 7(4);
  • revising the factors in subsections 9(1) & 9(5) concerning 'a drug that causes oxidation of haemoglobin', by the inclusion of a note;
  • revising the factors in subsections 9(2) & 9(6) concerning 'a chemical agent that causes oxidation of haemoglobin', by the inclusion of a note;
  • new definitions of 'MRCA' and 'VEA' in Schedule 1 - Dictionary; and
  • revising the definition of 'relevant service' in Schedule 1 – Dictionary.

Consultation

8.             Prior to determining this Instrument, the Authority advertised its intention to undertake an investigation in relation to methaemoglobinaemia in the Government Notices Gazette of 14 November 2017, 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 during 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 methaemoglobinaemia as advertised in the Government Notices Gazette of 14 November 2017.

References

11.         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. 18 of 2019

Kind of Injury, Disease or Death: Methaemoglobinaemia

 

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(8) 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 linking 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 methaemoglobinaemia;
  • 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, methaemoglobinaemia 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. 48 of 2010; and
  • reflects developments in the available sound medical-scientific evidence concerning methaemoglobinaemia 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 methaemoglobinaemia (Balance of Probabilities) (No. 18 of 2019), issued under the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004, was enacted to address the need for updated and scientifically sound criteria for determining claims related to methaemoglobinaemia in veterans and service personnel. The Repatriation Medical Authority, acting under the authority conferred by the Acts, repealed the previous Instrument No. 48 of 2010 to reflect the latest medical-scientific evidence. This new Statement of Principles outlines the circumstances under which methaemoglobinaemia and related deaths can be deemed connected to specific service conditions, thereby facilitating the assessment and review of claims for compensation and medical treatment. The process involved extensive consultation and adherence to human rights principles as stipulated in the Human Rights (Parliamentary Scrutiny) Act 2011. The purpose of this Statement of Principles is to ensure that claims under the Veterans' Entitlements Act and the Military Rehabilitation and Compensation Act are assessed based on the most current medical-scientific evidence. By establishing clear criteria for connecting methaemoglobinaemia with particular kinds of service, the Statement of Principles aims to provide transparency and fairness in the claims process. This legislative instrument not only updates the previous guidelines but also enhances the quality of medico-scientific outcomes for affected individuals, promoting their rights to social security, adequate living standards, and healthcare.

Scope and Application

The Statement of Principles concerning methaemoglobinaemia (Balance of Probabilities) (No. 18 of 2019) applies to claims under the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004, facilitating the assessment and determination of medical treatment and compensation for individuals diagnosed with methaemoglobinaemia, a condition that can be related to certain kinds of service. This legislative instrument applies to eligible persons, including veterans and current or former Defence Force members, who have rendered eligible war service, defence service, or peacetime service and who have methaemoglobinaemia or have died from the condition. The scope of the Act is national, operating across Australia under the purview of the Commonwealth. There are no specific exclusions, exemptions, or thresholds outlined in the document, but the determination of the Statement of Principles is based on the balance of probabilities supported by sound medical-scientific evidence. The application of this Act can be extended or restricted through subordinate instruments, ensuring the instrument remains responsive to new medical evidence and technological advancements.

Key Provisions

The main operative sections of the Statement of Principles concerning methaemoglobinaemia (Balance of Probabilities) (No. 18 of 2019) (section 1) detail the criteria that must be met for methaemoglobinaemia or death from methaemoglobinaemia to be considered connected with certain types of service under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA). Specifically, section 5 outlines the types of service (eligible war service, defence service, and peacetime service) that must be related to particular factors before a connection with methaemoglobinaemia can be established on the balance of probabilities. Section 9 lists the specific factors that must exist and be related to the service, such as exposure to drugs or chemical agents that cause oxidation of haemoglobin. The determination of these principles is made under subsection 196B(3) of the VEA and serves to replace the previously repealed Statement of Principles No. 48 of 2010. The obligations and requirements imposed by this Act on the parties or entities it governs primarily involve the establishment of clear criteria for assessing claims related to methaemoglobinaemia. For claimants, the obligation is to provide evidence that links their methaemoglobinaemia to their service under the specified conditions outlined in section 5 and the factors in section 9. For the Repatriation Commission, the obligation is to assess these claims based on the criteria set out in the Statement of Principles. The Act also mandates that these assessments be conducted in a manner that is compatible with human rights, ensuring that the rights of veterans, current and former Defence Force members, and their dependents are upheld (section 9). The Authority must also ensure that the determination of these principles is based on the most current and sound medical-scientific evidence available (section 6). Breaches of the provisions outlined in this Act can lead to civil or criminal consequences. While the Act does not explicitly detail penalties for non-compliance, breaches of similar legislative instruments under the VEA and MRCA can result in fines or other civil penalties. For example, under section 196D of the VEA, a person who makes a false or misleading statement in a claim for a benefit or payment can be liable to a penalty. Additionally, the failure to comply with the human rights compatibility requirement could lead to legal challenges or reviews, particularly if claimants or their representatives argue that their rights have been unfairly infringed. The maximum penalties for such offences would be in line with those provided under the relevant Acts, but they are not explicitly detailed in this Statement of Principles.

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Area of Law
Veterans' Law
Military Law
Instrument
Regulation
Concepts
Definitions & Interpretation
Reporting & Disclosure Obligations
Compliance Obligations
Consultation Requirements
Human Rights Law
Catchwords
Methaemoglobinaemia
Balance of Probabilities

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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.