Statement of Principles concerning myopia, hypermetropia and astigmatism (Balance of Probabilities) (No. 10 of 2016)

Administered by Department of Veterans' Affairs

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EXPLANATORY STATEMENT

 

Statement of Principles concerning

myopia, hypermetropia and astigmatism

(Balance of Probabilities) (NO. 10 OF 2016)

 

VETERANS’ ENTITLEMENTS ACT 1986

MILITARY REHABILITATION AND COMPENSATION ACT 2004

 

  1. This is the Explanatory Statement to the Statement of Principles concerning myopia, hypermetropia and astigmatism (Balance of Probabilities) (No. 10 of 2016).

Background

2.             The Repatriation Medical Authority (the Authority), under subsection 196B(8) of the Veterans' Entitlements Act 1986 (the VEA), revokes Instrument No. 70 of 2007, determined under subsection 196B(3) of the VEA concerning myopia, hypermetropia and astigmatism.

3.             The Authority is of the view that there is sound medical-scientific evidence that indicates that myopia, hypermetropia and astigmatism and death from myopia, hypermetropia and astigmatism 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 myopia, hypermetropia and astigmatism (Balance of Probabilities) (No. 10 of 2016).  This Instrument will in effect replace the revoked 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, myopia, hypermetropia or astigmatism or death from myopia, hypermetropia or astigmatism 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 31 October 2012 concerning myopia, hypermetropia and astigmatism 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 revoked Instrument.  Comparing this Instrument and the revoked 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 'myopia, hypermetropia and astigmatism' in subsection 7(2);
  • revising the reference to 'ICD-10-AM code' in subsection 7(4);
  • revising the factors in subsections 9(1) & 9(9) concerning 'decentration or tilting of the lens';
  • revising the factors in subsections 9(2) & 9(10) concerning 'corneal surgery';
  • revising the factors in subsections 9(3) & 9(11) concerning 'surgery for cataract';
  • revising the factor in subsection 9(4) concerning 'albinism';
  • revising the factors in subsections 9(5)(b) & 9(12)(b) concerning 'lenticonus', for myopia only;
  • revising the factors in subsections (9)(7)(a) & (9)(14)(a) concerning 'surgery involving the sclera', for astigmatism only;
  • revising the factors in subsections 9(8)(a) & 9(15)(a) concerning 'keratoconus', for myopia and astigmatism only;
  • revising the factors in subsections 9(8)(b) & 9(15)(b) concerning 'surgery for retinal detachment', for myopia and astigmatism only;;
  • new definitions of 'aphakia', 'MRCA' and 'VEA' in Schedule 1 - Dictionary;
  • revising the definition of 'relevant service' in Schedule 1 - Dictionary; and
  • deleting the definition of 'surgery for retinal detachment'.

Consultation

8.             Prior to determining this Instrument, the Authority advertised its intention to undertake an investigation in relation to myopia, hypermetropia and astigmatism in the Government Notices Gazette of 31 October 2012, 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 myopia, hypermetropia and astigmatism as advertised in the Government Notices Gazette of 31 October 2012.

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. 10 of 2016

Kind of Injury, Disease or Death: Myopia, hypermetropia and astigmatism

 

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 myopia, hypermetropia or astigmatism;
  • 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, myopia, hypermetropia or astigmatism 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. 70 of 2007; and
  • reflects developments in the available sound medical-scientific evidence concerning myopia, hypermetropia and astigmatism 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 myopia, hypermetropia and astigmatism (Balance of Probabilities) (No. 10 of 2016) was enacted to address the need for a revised framework for assessing claims related to myopia, hypermetropia, and astigmatism under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA). This legislation was introduced by the Repatriation Medical Authority (the Authority), which revoked the previous Instrument No. 70 of 2007. The new Statement of Principles was determined based on the sound medical-scientific evidence available at the time, aiming to replace the outdated instrument and better reflect the current understanding of these conditions. The primary objective is to facilitate the assessment of claims by specifying the factors that must exist for a connection to be made between the conditions and service rendered by a person. This new instrument will help in the review of such claims and ensures that the determination of benefits is based on the latest medical-scientific evidence. This Legislative Instrument ensures compatibility with human rights, promoting the rights of veterans, current and former Defence Force members, and their dependents by providing a transparent and proportionate process for the assessment and determination of benefits. It facilitates access to social security, adequate standard of living, and the highest attainable standard of physical and mental health, ensuring that these rights are exercised without discrimination.

Scope and Application

The Statement of Principles concerning myopia, hypermetropia and astigmatism (Balance of Probabilities) (No. 10 of 2016) applies to eligible persons making claims under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA). These Acts cover veterans, current and former Defence Force members, and their dependents. The Statement of Principles sets out the factors that must exist, and which of those factors must be related to specific kinds of service, before it can be said that, on the balance of probabilities, myopia, hypermetropia or astigmatism is connected with the circumstances of the service rendered. The principles are intended to facilitate the assessment and determination of claims by the Repatriation Commission and the review of such decisions by the Veterans' Review Board and the Administrative Appeals Tribunal. This Instrument revokes Instrument No. 70 of 2007 and reflects developments in the available sound medical-scientific evidence concerning myopia, hypermetropia and astigmatism. The geographic and jurisdictional reach of this Statement of Principles is national, as it applies to all eligible persons making claims under the VEA and the MRCA throughout Australia. This Statement of Principles has been determined pursuant to subsection 196B(3) of the VEA and applies to all eligible persons making claims under the VEA and the MRCA. The scope of the application extends to those who have myopia, hypermetropia, or astigmatism and have rendered eligible war service, defence service, or peacetime service as defined by the respective Acts. The application of the Statement of Principles is not restricted by any stated exclusions or exemptions in the Explanatory Statement, although subordinate instruments may further define or modify its application. The determination of this Instrument finalises the investigation in relation to myopia, hypermetropia and astigmatism as advertised in the Government Notices Gazette of 31 October 2012.

Key Provisions

The Statement of Principles concerning myopia, hypermetropia and astigmatism (Balance of Probabilities) (No. 10 of 2016) (the Instrument) is a legislative instrument determined under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA) (sections 2 and 4). It revokes the previous Statement of Principles No. 70 of 2007 and sets out the factors that must exist, and which of those factors must be related to specific kinds of service, before it can be said that, on the balance of probabilities, myopia, hypermetropia or astigmatism or death from these conditions is connected with the circumstances of that service (subsection 5(1)). The Instrument applies to claims under the VEA and the MRCA, facilitating the assessment and determination of compensation and benefits for veterans and current or former Defence Force members who have these conditions (subsection 5(2)). The Statement of Principles also includes new definitions of terms such as 'aphakia', 'MRCA', and 'VEA', and revises certain definitions from the previous instrument (Schedule 1 - Dictionary). The Statement of Principles imposes obligations on claimants, the Repatriation Commission, the Veterans' Review Board, and the Administrative Appeals Tribunal. Claimants must provide evidence to support their claims, and the Repatriation Commission must assess these claims based on the factors outlined in the Instrument (subsections 5(3) and 5(4)). The Veterans' Review Board and the Administrative Appeals Tribunal are responsible for reviewing decisions made by the Repatriation Commission (subsection 5(5)). The Instrument also requires the Repatriation Medical Authority to advertise its intention to investigate and to invite submissions from relevant organisations and individuals, although in this case, no submissions were received (subsection 8). The Instrument does not create new offences or penalties, but failure to comply with the requirements of the VEA and MRCA may result in civil or criminal consequences, such as fines or imprisonment, depending on the nature and severity of the breach. The maximum penalties for offences under the VEA and MRCA are set out in the respective Acts. Additionally, non-compliance with the Statement of Principles may result in the rejection of a claim or the reduction of compensation or benefits payable to a claimant. 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. It promotes the human rights of veterans, current and former Defence Force members, and their dependents, including the right to social security, the right to an adequate standard of living, the right to the enjoyment of the highest attainable standard of physical and mental health, and the rights of persons with disabilities (subsection 4). The Instrument ensures that these rights will be exercised without discrimination of any kind.

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