Statement of Principles concerning opisthorchiasis (Balance of Probabilities) (No. 46 of 2016)

Administered by Department of Veterans' Affairs

Legislation au F2016L00584 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

STATEMENT OF PRINCIPLES CONCERNING

OPISTHORCHIASIS

(BALANCE OF PROBABILITIES) (NO. 46 OF 2016)

 

VETERANS’ ENTITLEMENTS ACT 1986

MILITARY REHABILITATION AND COMPENSATION ACT 2004

 

  1. This is the Explanatory Statement to the Statement of Principles concerning opisthorchiasis (Balance of Probabilities) (No. 46 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. 112 of 2007, determined under subsection 196B(3) of the VEA concerning opisthorchiasis.

3.             The Authority is of the view that there is sound medical-scientific evidence that indicates that opisthorchiasis and death from opisthorchiasis 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 opisthorchiasis (Balance of Probabilities) (No. 46 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, opisthorchiasis or death from opisthorchiasis 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 12 May 2015 concerning opisthorchiasis 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 'opisthorchiasis' in subsection 7(2);
  • revising the reference to 'ICD-10-AM code' in subsection 7(4);
  • new factor in subsection 9(1)(a) concerning 'ingesting the skin or flesh of raw, undercooked, iced, pickled or smoked freshwater fish containing encysted larvae of Opisthorchis viverrini', for infection with Opisthorchis viverrini only;
  • revising the factor in subsection 9(1)(b) concerning 'ingesting the skin or flesh of raw, undercooked, iced, pickled or smoked freshwater fish from a country from Specified List 1 of countries', for infection with Opisthorchis viverrini only;
  • new factor in subsection 9(2)(a) concerning 'ingesting the skin or flesh of raw, undercooked, iced, pickled or smoked freshwater fish containing encysted larvae of Opisthorchis felineus', for infection with Opisthorchis felineus only;
  • revising the factor in subsection 9(2)(b) concerning 'ingesting the skin or flesh of raw, undercooked, iced, pickled or smoked freshwater fish from a country from Specified List 2 of countries', for infection with Opisthorchis felineus only;
  • new definitions of 'MRCA', 'Specified List 1 of countries', 'Specified List 2 of countries' and 'VEA' in Schedule 1 - Dictionary;
  • revising the definition of 'relevant service' in Schedule 1 - Dictionary; and
  • deleting the definitions of 'one of the areas in Specified List 1' and 'one of the areas in Specified List 2'.

Consultation

8.             Prior to determining this Instrument, the Authority advertised its intention to undertake an investigation in relation to opisthorchiasis in the Government Notices Gazette of 12 May 2015, 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 opisthorchiasis as advertised in the Government Notices Gazette of 12 May 2015.


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. 46 of 2016

Kind of Injury, Disease or Death: Opisthorchiasis

 

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 opisthorchiasis;
  • 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, opisthorchiasis 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. 112 of 2007; and
  • reflects developments in the available sound medical-scientific evidence concerning opisthorchiasis 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 opisthorchiasis (Balance of Probabilities) (No. 46 of 2016) is an instrument determined under the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004 by the Repatriation Medical Authority. This legislative instrument was introduced to address the need for a comprehensive and updated framework for assessing claims related to opisthorchiasis, a parasitic infection caused by consuming raw or undercooked freshwater fish, among veterans and members of the Defence Force. The Authority revoked Instrument No. 112 of 2007 and established the new Statement of Principles based on the latest sound medical-scientific evidence available. The policy objective of the instrument is to facilitate the assessment and determination of claims for medical treatment and compensation for eligible veterans and Defence Force members who have contracted opisthorchiasis, ensuring that the benefits are reasonable, proportionate, and transparent, and in line with human rights standards. The instrument aims to streamline the process of assessing and adjudicating claims by clearly outlining the factors that must exist for opisthorchiasis to be considered connected to particular types of service, including eligible war service, defence service, and peacetime service. The updated framework reflects the most recent medical-scientific evidence concerning the disease and its relation to specific service circumstances, ensuring that the provisions are accurate and relevant. This instrument not only replaces the outdated Statement of Principles but also promotes human rights by facilitating access to social security, an adequate standard of living, and the highest attainable standard of health for veterans, current and former Defence Force members, and their dependents.

Scope and Application

The Statement of Principles concerning opisthorchiasis (Balance of Probabilities) (No. 46 of 2016) applies to individuals making claims under the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004, specifically relating to opisthorchiasis, a disease caused by parasitic flatworms. This legislative instrument is applicable to veterans and current or former Defence Force members who have contracted opisthorchiasis or have died from the disease, provided it is connected to certain kinds of service as outlined in the Act. The instrument applies nationally across Australia and is determined by the Repatriation Medical Authority under the Veterans' Entitlements Act 1986, effectively replacing the previous Statement of Principles concerning opisthorchiasis (No. 112 of 2007). This new instrument incorporates updated medical-scientific evidence and outlines specific circumstances under which opisthorchiasis is deemed connected to service, facilitating the assessment and determination of claims for medical treatment and compensation. The instrument does not specify any exclusions or exemptions and extends its application through subordinate instruments as necessary.

Key Provisions

The Statement of Principles concerning opisthorchiasis (Balance of Probabilities) (No. 46 of 2016) outlines the circumstances under which opisthorchiasis or death from opisthorchiasis can be considered related to particular kinds of service under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA). It specifies the factors that must exist and be related to eligible war service, defence service, and peacetime service for such a connection to be made on the balance of probabilities (sections 5 and 9). This Statement of Principles replaces the previously revoked Instrument No. 112 of 2007 and incorporates recent medical-scientific evidence concerning opisthorchiasis. The Statement imposes specific obligations on claimants and the Repatriation Commission, including the need for claimants to provide evidence of service and the factors outlined in the Statement to substantiate their claims for medical treatment and compensation (section 5). The Repatriation Commission must assess claims in accordance with the factors set out in this Statement, ensuring that decisions are based on sound medical-scientific evidence. Additionally, the Veterans' Review Board and the Administrative Appeals Tribunal are required to review decisions in line with the criteria established by the Statement. Breaches of the provisions outlined in the Statement of Principles can lead to civil and criminal consequences. While the Statement itself does not specify penalties, any failure to comply with the requirements of the VEA and MRCA, including the fraudulent submission of claims, can result in civil penalties under these Acts. In cases of serious misconduct, criminal penalties may also apply, as governed by the respective Acts. The specific penalties would be determined based on the nature and severity of the breach under the applicable legislative frameworks. The Statement of Principles ensures that the determination of opisthorchiasis-related claims is based on the most current and reliable medical-scientific evidence. It facilitates the assessment and review processes for claimants, ensuring that their rights to social security, adequate living standards, and health care are upheld in a transparent and non-discriminatory manner. By providing clear criteria, the Statement aids in the equitable distribution of benefits and compensation to eligible veterans and service personnel.

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