Statement of Principles concerning moderate to severe traumatic brain injury (Balance of Probabilities) (No. 95 of 2018)

Administered by Department of Veterans' Affairs

Legislation au F2018L01488 In force Legislative Instrument

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EXPLANATORY STATEMENT

 

STATEMENT OF PRINCIPLES CONCERNING

MODERATE TO SEVERE TRAUMATIC BRAIN INJURY

(BALANCE OF PROBABILITIES) (NO. 95 OF 2018)

 

VETERANS' ENTITLEMENTS ACT 1986

MILITARY REHABILITATION AND COMPENSATION ACT 2004

 

  1. This is the Explanatory Statement to the Statement of Principles concerning moderate to severe traumatic brain injury (Balance of Probabilities) (No. 95 of 2018).

Background

2.             The Repatriation Medical Authority (the Authority), under subsection 196B(8) of the Veterans' Entitlements Act 1986 (the VEA), repeals Instrument No. 63 of 2012 (Federal Register of Legislation No. F2012L01805) determined under subsection 196B(3) of the VEA concerning moderate to severe traumatic brain injury.

3.             The Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that moderate to severe traumatic brain injury and death from moderate to severe traumatic brain injury 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 moderate to severe traumatic brain injury (Balance of Probabilities) (No. 95 of 2018).  This Instrument will in effect replace the repealed Statement of Principles.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, moderate to severe traumatic brain injury or death from moderate to severe traumatic brain injury 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 9 January 2018 concerning moderate to severe traumatic brain injury 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 'moderate to severe traumatic brain injury' in subsection 7(2);
  • revising the factor in subsection 9(1) concerning 'experiencing a specified event';
  • new definitions of 'MRCA' and 'VEA' in Schedule 1 - Dictionary; and
  • revising the definition of 'specified event' in Schedule 1 - Dictionary.

Consultation

8.             Prior to determining this Instrument, the Authority advertised its intention to undertake an investigation in relation to moderate to severe traumatic brain injury in the Government Notices Gazette of 9 January 2018, 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, 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 moderate to severe traumatic brain injury as advertised in the Government Notices Gazette of 9 January 2018.

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. 95 of 2018

Kind of Injury, Disease or Death: Moderate to severe traumatic brain injury

 

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 moderate to severe traumatic brain injury;
  • 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, moderate to severe traumatic brain injury 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. 63 of 2012; and
  • reflects developments in the available sound medical-scientific evidence concerning moderate to severe traumatic brain injury 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 moderate to severe traumatic brain injury (Balance of Probabilities) (No. 95 of 2018), enacted under the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004, addresses the gap in the legal framework concerning the connection between moderate to severe traumatic brain injury and particular kinds of service. This legislation was introduced to ensure that claims for medical treatment and compensation for moderate to severe traumatic brain injury can be effectively assessed and determined based on the available sound medical-scientific evidence. The Repatriation Medical Authority, acting under the provisions of the Veterans' Entitlements Act, repealed the previous Statement of Principles No. 63 of 2012 and determined this new Statement of Principles to reflect updated evidence and improve the medico-scientific quality of outcomes. The policy objective of this legislation is to facilitate the assessment of claims and the review of decisions by specifying the necessary factors that must exist for a connection between the injury and service to be established on the balance of probabilities. This legislative instrument not only updates the legal criteria for assessing claims but also aligns with human rights, promoting the rights of veterans, current and former Defence Force members, and their dependents by ensuring reasonable, proportionate, and transparent qualifying conditions for benefits. It also supports the right to social security, an adequate standard of living, and the highest attainable standard of physical and mental health, ensuring these rights are exercised without discrimination.

Scope and Application

The Statement of Principles concerning moderate to severe traumatic brain injury (Balance of Probabilities) (No. 95 of 2018) applies to persons who have served in eligible war service, defence service, or peacetime service and who have sustained moderate to severe traumatic brain injury. It governs the assessment of claims under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA). This legislative instrument replaces the previously repealed Instrument No. 63 of 2012. The scope of the legislation extends to the Commonwealth jurisdiction, addressing claims related to service rendered by individuals who have suffered moderate to severe traumatic brain injury. The legislation provides a framework for determining the circumstances under which such injuries are connected to the service, thereby facilitating the assessment and granting of benefits and compensation. Notably, the application of this Statement of Principles is consistent with human rights as it promotes various rights, including the right to social security and the right to an adequate standard of living, without derogation from any human rights.

Key Provisions

The main operative sections of the Statement of Principles concerning moderate to severe traumatic brain injury (Balance of Probabilities) (No. 95 of 2018) are those that specify the conditions under which moderate to severe traumatic brain injury or death from such injury can be connected to certain types of service rendered by a person. This includes eligible war service (other than operational service) and defence service (other than hazardous service and British nuclear test defence service) under the Veterans' Entitlements Act 1986 (VEA), as well as peacetime service under the Military Rehabilitation and Compensation Act 2004 (MRCA) (sections 5 and 6). This Statement of Principles is intended to facilitate the process of making and assessing claims under the VEA and the MRCA, as well as the review of such decisions by the Veterans' Review Board and the Administrative Appeals Tribunal (section 4). The Statement of Principles imposes obligations on claimants and the Repatriation Commission to ensure that the factors outlined in the principles are met before a connection can be made between the service rendered and the moderate to severe traumatic brain injury or death from such injury. This involves the provision of sound medical-scientific evidence to support the claim and the assessment of the evidence by the Commission. The Statement of Principles also imposes obligations on the Repatriation Medical Authority to determine the principles based on the available sound medical-scientific evidence, as well as to ensure that the principles are compatible with human rights as recognised or declared in international instruments (section 9). There are no explicit offences, penalties, or civil/criminal consequences for breach outlined in the Statement of Principles. However, failure to meet the requirements of the principles may result in a claim being denied or compensation being refused. The Statement of Principles is intended to improve the medico-scientific quality of outcomes under the VEA and the MRCA, and to promote the human rights of veterans, current and former Defence Force members, and their dependents (section 3). The compatibility of the Statement of Principles with human rights is outlined in the Statement of Compatibility with Human Rights, which follows the Explanatory Statement.

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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.