Statement of Principles concerning pulmonary barotrauma (Balance of Probabilities) (No. 65 of 2023)

Administered by Department of Veterans' Affairs

Legislation au F2023L00914 In force Legislative Instrument

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EXPLANATORY STATEMENT

 

STATEMENT OF PRINCIPLES CONCERNING

PULMONARY BAROTRAUMA

(BALANCE OF PROBABILITIES) (NO. 65 OF 2023)

 

VETERANS' ENTITLEMENTS ACT 1986

MILITARY REHABILITATION AND COMPENSATION ACT 2004

 

  1. This is the Explanatory Statement to the Statement of Principles concerning pulmonary barotrauma (Balance of Probabilities) (No. 65 of 2023).

Background

2.             The Repatriation Medical Authority (the Authority), under subsection 196B(8) of the Veterans' Entitlements Act 1986 (the VEA), repeals Instrument No. 16 of 2015 (Federal Register of Legislation No. F2014L01839) determined under subsection 196B(3) of the VEA concerning pulmonary barotrauma.

3.             The Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that pulmonary barotrauma and death from pulmonary barotrauma 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 pulmonary barotrauma (Balance of Probabilities) (No. 65 of 2023).  This Instrument will in effect replace the repealed Statement of Principles.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, pulmonary barotrauma or death from pulmonary barotrauma 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 10 May 2022 concerning pulmonary barotrauma 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 'pulmonary barotrauma' in subsection 7(2);
  • revising the factor in subsection 9(1) concerning experiencing an episode of rapid change in the ambient pressure;
  • revising the factor in subsection 9(2) concerning receiving artificial ventilation by the inclusion of a note;
  • new factor in subsection 9(4) concerning undertaking a Valsalva manoeuvre;
  • deleting the definition of "an abrupt change in ambient barometric pressure" from the Schedule 1 - Dictionary.

Consultation

8.             Prior to determining this Instrument, the Authority advertised its intention to undertake an investigation in relation to pulmonary barotrauma in the Government Notices Gazette of 10 May 2022, 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 in relation to 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 pulmonary barotrauma as advertised in the Government Notices Gazette of 10 May 2022.

References

11.         A list of references relating to the above condition is available on the Authority's website at: www.rma.gov.au. Any other document referred to in this Statement of Principles is available on request to the Repatriation Medical Authority at the following address:

              

Email:    info@rma.gov.au

Post:      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. 65 of 2023

Kind of Injury, Disease or Death: Pulmonary barotrauma

 

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(3) 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 connecting 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 and the Military Rehabilitation and Compensation 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 pulmonary barotrauma;
  • 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, pulmonary barotrauma 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. 16 of 2015; and
  • reflects developments in the available sound medical-scientific evidence concerning pulmonary barotrauma 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, ICESCR; 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, ICESCR 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 Pulmonary Barotrauma (Balance of Probabilities) (No. 65 of 2023) was enacted to address the connection between pulmonary barotrauma and certain types of military service. The Repatriation Medical Authority (the Authority), under the Veterans' Entitlements Act 1986, repealed the previous Instrument No. 16 of 2015, citing new medical-scientific evidence that suggests it is more probable than not that pulmonary barotrauma and related deaths can be connected to particular kinds of service. This new Statement of Principles will apply to claims under both the Veterans' Entitlements Act and the Military Rehabilitation and Compensation Act 2004, clarifying the circumstances in which pulmonary barotrauma can be deemed connected to service. The Authority completed an investigation into pulmonary barotrauma, advertised in the Government Notices Gazette on 10 May 2022, and invited submissions from relevant organisations and experts, although none were received. This instrument ensures the determination process is compatible with human rights, promoting the rights of veterans, service personnel, and their dependents. This new instrument, replacing the previous one, adopts a revised format and specifies a commencement date, while also clarifying definitions and factors related to pulmonary barotrauma. It aims to facilitate both the making of claims and their assessment by the relevant Commissions, as well as the review of such decisions by the Veterans' Review Board and the Administrative Appeals Tribunal. By setting out the factors that must exist for pulmonary barotrauma to be connected with military service, the Statement of Principles enhances the medico-scientific quality of outcomes under the relevant Acts, ensuring that claimants receive fair and informed assessments.

Scope and Application

The Statement of Principles concerning pulmonary barotrauma (Balance of Probabilities) (No. 65 of 2023) is an instrument determined under the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004, providing a framework for assessing claims related to pulmonary barotrauma in the context of military service. It applies to individuals who have served in eligible war service, defence service, or peacetime service, as defined under these Acts. The principles set forth in this Instrument guide the Repatriation Commission and the Military Rehabilitation and Compensation Commission in determining whether pulmonary barotrauma or death from such trauma can be connected to the service rendered by a person, based on the balance of probabilities. This determination is made using the sound medical-scientific evidence available to the Repatriation Medical Authority, which has replaced the previous Instrument No. 16 of 2015. The Statement of Principles aids in facilitating the assessment, review, and determination of claims, ensuring that compensation and medical treatment are provided to eligible veterans and service personnel. The instrument reflects the most recent medical-scientific evidence concerning pulmonary barotrauma and is compatible with human rights as it promotes the rights of veterans and service personnel without discrimination.

Key Provisions

The Statement of Principles concerning pulmonary barotrauma (Balance of Probabilities) (No. 65 of 2023) under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA) outlines the medical and service-related factors that must exist for pulmonary barotrauma or death from pulmonary barotrauma to be considered connected with certain types of military service. This instrument, determined by the Repatriation Medical Authority, specifies the necessary conditions for eligibility, replacing the previous Instrument No. 16 of 2015. It aims to facilitate claims and assessments related to pulmonary barotrauma by detailing the circumstances under which compensation and medical treatment can be granted. The Statement of Principles imposes several obligations on the parties it governs. Claimants must provide evidence of the existence of the specified factors, such as experiencing a rapid change in ambient pressure or engaging in a Valsalva manoeuvre, as well as proof of their service in the eligible categories mentioned. The Repatriation Commission and the Military Rehabilitation and Compensation Commission are required to assess claims based on these outlined factors, ensuring the sound medical-scientific evidence aligns with the criteria set forth in the Statement. Additionally, the Veterans' Review Board and the Administrative Appeals Tribunal must review these assessments in accordance with the principles established. Failure to comply with the provisions of the Statement of Principles can lead to various consequences. While the document does not specify particular offences or penalties, non-compliance with the requirements for claims under the VEA and MRCA can result in the denial of compensation or medical treatment. Claimants who do not meet the outlined criteria may find their claims dismissed, and the authorities have the discretion to challenge decisions if they believe the criteria have not been appropriately applied. The emphasis is on ensuring that claimants are assessed fairly and that the principles are applied consistently to maintain the integrity of the compensation and rehabilitation processes. The Statement of Principles ensures compatibility with human rights by promoting the rights of veterans, current and former Defence Force members, and their dependents. It facilitates the provision of social security, adequate living standards, and healthcare, which are fundamental human rights. The instrument does not derogate from any human rights and ensures that the rights of individuals will be exercised without discrimination. This approach aligns with international human rights standards, ensuring that the legislative framework respects and upholds the dignity and rights of all individuals affected by pulmonary barotrauma.

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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.