Statement of Principles concerning opisthorchiasis (Reasonable Hypothesis) (No. 45 of 2016)

Administered by Department of Veterans' Affairs

Legislation au F2016L00579 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

STATEMENT OF PRINCIPLES CONCERNING

OPISTHORCHIASIS

(REASONABLE HYPOTHESIS) (NO. 45 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 (Reasonable Hypothesis) (No. 45 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. 111 of 2007, determined under subsection 196B(2) 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(2) of the VEA a Statement of Principles concerning opisthorchiasis (Reasonable Hypothesis) (No. 45 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 as a minimum exist, and which of those factors must be related to the following kinds of service rendered by a person:

 operational service under the VEA;

 peacekeeping service under the VEA;

 hazardous service under the VEA;

 British nuclear test defence service under the VEA;

 warlike service under the MRCA;

 non-warlike service under the MRCA,

before it can be said that a reasonable hypothesis has been raised connecting opisthorchiasis or death from opisthorchiasis, 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. 45 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 as a minimum exist, before it can be said that a reasonable hypothesis has been raised, connecting opisthorchiasis with the circumstances of eligible service rendered by a person, as set out in clause 5 of the Explanatory Statement;
  • replaces Instrument No. 111 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 (Reasonable Hypothesis) (No. 45 of 2016), issued under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA), was enacted to address the problem of veterans contracting opisthorchiasis, a parasitic infection, during their service. The Repatriation Medical Authority, acting under the VEA, revoked the previous Instrument No. 111 of 2007 due to new sound medical-scientific evidence linking opisthorchiasis with certain types of military service. The new Statement of Principles outlines the minimum factors necessary to establish a reasonable hypothesis connecting opisthorchiasis or death from opisthorchiasis with eligible service, facilitating claims and assessments under the VEA and MRCA. This legislative instrument aims to ensure that claims are assessed based on the most current medical evidence, thus improving the quality of outcomes for veterans and their families. The Statement of Principles was determined by the Repatriation Medical Authority following an investigation notified in the Government Notices Gazette on 12 May 2015. The Authority invited submissions from relevant organisations and experts but did not receive any during the investigation. This instrument replaces the previous one, adopting a revised format and updating definitions and factors based on the latest medical evidence. The Legislative Instrument is compatible with human rights, promoting the rights of veterans and their dependents to social security, adequate living standards, and health, without discrimination.

Scope and Application

The Statement of Principles concerning opisthorchiasis (Reasonable Hypothesis) (No. 45 of 2016) applies to veterans and service personnel who have contracted opisthorchiasis, a parasitic infection, during their service and who seek compensation or medical treatment under the Veterans' Entitlements Act 1986 (VEA) or the Military Rehabilitation and Compensation Act 2004 (MRCA). It establishes the minimum factors that must be present to reasonably hypothesise a link between opisthorchiasis and service, such as ingesting raw or undercooked freshwater fish from specific countries. The Act applies across the Commonwealth of Australia, and its provisions are designed to ensure that claims are assessed on the basis of the latest medical-scientific evidence. The Act revokes the previous Statement of Principles (Instrument No. 111 of 2007), incorporating updated definitions and factors concerning the infection and reflecting new scientific evidence. The application of the Act is not restricted by subordinate instruments, but the Authority retains the capacity to further refine the application through subsequent investigations and determinations as new evidence becomes available.

Key Provisions

The Statement of Principles concerning opisthorchiasis (Reasonable Hypothesis) (No. 45 of 2016) sets out the circumstances under which claims for compensation and medical treatment for opisthorchiasis can be considered under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA). The Statement of Principles specifies the minimum factors that must exist, and how these factors must relate to certain kinds of military service, before a reasonable hypothesis can be raised that opisthorchiasis or death from opisthorchiasis is connected to the service (Section 5). This includes operational service, peacekeeping service, hazardous service, British nuclear test defence service, warlike service, and non-warlike service (Section 5). The Statement of Principles also includes specific factors such as the ingestion of raw, undercooked, iced, pickled or smoked freshwater fish containing encysted larvae of certain parasites, and fish from specified countries (Section 9). The obligations imposed by the Statement of Principles include the requirement for claimants to provide evidence that meets the criteria outlined in the Statement. This includes proof of exposure to the factors specified, such as documented instances of consuming contaminated fish, and evidence linking this exposure to the service rendered (Section 5 and 9). The Repatriation Medical Authority is responsible for assessing these claims based on the sound medical-scientific evidence available and determining whether a reasonable hypothesis can be established. The Repatriation Commission and relevant tribunals also have roles in assessing and reviewing these claims (Section 6). Breach of the provisions outlined in the Statement of Principles could potentially lead to civil consequences, including the denial of claims for compensation and medical treatment for opisthorchiasis. The Statement of Principles itself does not outline specific offences or penalties, but non-compliance with the criteria for a reasonable hypothesis could result in the rejection of a claim. The maximum penalties for offences related to the fraudulent submission of claims under the VEA or MRCA are detailed in those respective Acts and can include substantial fines and imprisonment (not detailed in the Statement of Principles but referable under the VEA and MRCA). The Statement of Principles ensures compatibility with human rights, particularly the right to social security, an adequate standard of living, and the highest attainable standard of physical and mental health. It ensures that the qualifying conditions for benefits are reasonable, proportionate, and transparent, and that these rights are exercised without discrimination (Section 4). The compatibility statement confirms that the Legislative Instrument does not derogate from any human rights and promotes the rights of veterans, current and former Defence Force members, and their dependents (Section 4).

Legal classification tags

Area of Law
Veterans' Law
Instrument
Explanatory Statement
Concepts
Definitions & Interpretation
Reporting & Disclosure Obligations
Human Rights Law
Catchwords
Opisthorchiasis
Veterans' Entitlements Act 1986
Military Rehabilitation and Compensation Act 2004

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