Statement of Principles concerning sinusitis (Reasonable Hypothesis) (No. 73 of 2018)

Administered by Department of Veterans' Affairs

Legislation au F2018L01175 In force Legislative Instrument

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EXPLANATORY STATEMENT

 

STATEMENT OF PRINCIPLES CONCERNING

SINUSITIS

(REASONABLE HYPOTHESIS) (NO. 73 OF 2018)

 

VETERANS' ENTITLEMENTS ACT 1986

MILITARY REHABILITATION AND COMPENSATION ACT 2004

 

  1. This is the Explanatory Statement to the Statement of Principles concerning sinusitis (Reasonable Hypothesis) (No. 73 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. 9 of 2010 (Federal Register of Legislation No. F2010L00553) determined under subsection 196B(2) of the VEA concerning sinusitis.

3.             The Authority is of the view that there is sound medical-scientific evidence that indicates that sinusitis and death from sinusitis 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 sinusitis (Reasonable Hypothesis) (No. 73 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  This Instrument will in effect replace the repealed Statement of Principles.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 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 sinusitis or death from sinusitis, 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 19 October 2016 concerning sinusitis 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 'sinusitis' in subsection 7(2);
  • revising the reference to 'ICD-10-AM code' in subsection 7(4);
  • revising the factors in subsections 9(1) & 9(11) concerning 'impaired drainage of the sinus', by the inclusion of a note;
  • revising the factors in subsections 9(2) & 9(12) concerning 'a viral, bacterial or fungal respiratory tract infection';
  • revising the factors in subsections 9(3) & 9(13) concerning 'an immunocompromised state';
  • new factors in subsections 9(4) & 9(14) concerning 'a specified medical condition';
  • revising the factors in subsections 9(5) & 9(15) concerning 'a course of therapeutic radiation for cancer';
  • revising the factors in subsections 9(6) & 9(16) concerning 'smoking';
  • new factors in subsections 9(7) & 9(17) concerning 'second-hand smoke';
  • revising the factors in subsections 9(8) & 9(18) concerning 'inhaling a drug or irritant substance';
  • new factors in subsections 9(9) & 9(19) concerning 'inhaling airborne dusts, smoke from fires, or fumes or vapours';
  • revising the factors in subsections 9(10) & 9(20) concerning 'a specified dental condition', for sinusitis affecting the maxillary sinus only, by the inclusion of a note;
  • new factor in subsection 9(21) concerning 'using a drug belonging to the nonselective (COX-1 and COX-2 inhibitors) nonsteroidal anti-inflammatory class of drugs', for sinusitis with nasal polyps only, for clinical worsening only;
  • deleting the factors concerning 'being infected with human immunodeficiency virus' as they are now subsumed by the factors in subsections 9(3) & 9(13) concerning 'an immunocompromised state';
  • deleting the factors concerning 'allergic rhinitis', 'diabetes mellitus', 'gastroesophageal reflux disease' and 'sinus barotrauma' as they are now subsumed by the factors in subsections 9(4) & 9(14) concerning 'a specified medical condition';
  • new definitions of 'being exposed to second-hand smoke', 'chronic renal failure', 'immunocompromised state as specified', 'immunosuppressive drug', 'MRCA', 'specified medical condition' and 'VEA' in Schedule 1 - Dictionary;
  • revising the definitions of 'impaired drainage of the sinus', 'pack-year of cigarettes, or the equivalent thereof in other tobacco products', 'relevant service' and 'specified dental condition' in Schedule 1 - Dictionary; and
  • deleting the definitions of 'a course of therapeutic radiation', 'a specified substance', 'acute nasal symptoms or signs', 'an immunocompromised state' and 'cigarettes per day, or the equivalent thereof in other tobacco products'.

Consultation

8.             Prior to determining this Instrument, the Authority advertised its intention to undertake an investigation in relation to sinusitis in the Government Notices Gazette of 19 October 2016, 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 sinusitis as advertised in the Government Notices Gazette of 19 October 2016.

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. 73 of 2018

Kind of Injury, Disease or Death: Sinusitis

 

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 sinusitis;
  • 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 sinusitis with the circumstances of eligible service rendered by a person, as set out in clause 5 of the Explanatory Statement;
  • replaces Instrument No. 9 of 2010; and
  • reflects developments in the available sound medical-scientific evidence concerning sinusitis 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 sinusitis (Reasonable Hypothesis) (No. 73 of 2018) was enacted by the Repatriation Medical Authority under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA) to address the gap in the sound medical-scientific evidence linking sinusitis and death from sinusitis to particular kinds of service. This legislation aims to facilitate claimants in making and assessing claims for medical treatment and compensation under the VEA and MRCA, as well as the review of such decisions by the Veterans' Review Board and the Administrative Appeals Tribunal. The policy objective of this legislation is to ensure that the qualifying conditions for the benefit are reasonable, proportionate, and transparent, while also promoting the human rights of veterans, current and former Defence Force members, and their dependents, including the right to social security, an adequate standard of living, and the enjoyment of the highest attainable standard of physical and mental health. The Statement of Principles replaces Instrument No. 9 of 2010 and reflects the developments in the available sound medical-scientific evidence concerning sinusitis since that earlier instrument was determined.

Scope and Application

The Statement of Principles concerning sinusitis (Reasonable Hypothesis) (No. 73 of 2018) applies to claims made under the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004, targeting veterans, service personnel, and their dependants who have been diagnosed with sinusitis potentially related to their service. The Instrument outlines the minimum factors that must exist, and which of those factors must be related to specific kinds of service, to establish a reasonable hypothesis that the sinusitis is connected to the service rendered. These factors include exposure to various environmental conditions and activities during service that could lead to sinusitis. The Statement of Principles has a national reach across Australia, applying to both Commonwealth and state jurisdictions, as it pertains to federal veterans' entitlements and military rehabilitation and compensation. There are no explicit exclusions or exemptions detailed in the explanatory statement, but the focus remains on cases where there is sound medical-scientific evidence linking sinusitis to the service. The application of this Instrument may be extended or restricted through subordinate instruments, although no specific details are provided in this explanatory statement.

Key Provisions

The Statement of Principles concerning sinusitis (Reasonable Hypothesis) (No. 73 of 2018) is a legislative instrument that replaces the previous Instrument No. 9 of 2010 concerning sinusitis, as determined under subsection 196B(2) of the Veterans' Entitlements Act 1986 (VEA). This new Statement of Principles is designed to assist in determining claims under both the VEA and the Military Rehabilitation and Compensation Act 2004 (MRCA). It outlines the factors that must exist, and which must be related to certain types of service, before it can be said that a reasonable hypothesis has been raised connecting sinusitis or death from sinusitis with the circumstances of the service rendered (subsection 9(1) and (11)). These service types include operational, peacekeeping, hazardous, and British nuclear test defence service under the VEA, and warlike and non-warlike service under the MRCA. The obligations and requirements imposed by this Act on the parties it governs include the specification of the minimum factors that must be present in order to establish a reasonable hypothesis connecting sinusitis to particular service circumstances. The Act also requires that these factors be related to the relevant types of service as defined in the Act. For instance, it must be demonstrated that certain conditions, such as impaired drainage of the sinus or a specified medical condition, are connected to the service in question (subsection 9(1) to (14)). Additionally, the Act mandates that the Repatriation Medical Authority (the Authority) facilitate claimants in making claims and the Repatriation Commission in assessing these claims by providing a clear framework for the evaluation of such claims (subsection 196B(8)). In terms of offences, penalties, and consequences for breach, the Statement of Principles itself does not outline specific penalties for non-compliance. However, the underlying Acts, the VEA and the MRCA, do provide for various penalties for fraudulent claims or misrepresentations in the context of veterans' entitlements and military rehabilitation and compensation. For instance, under section 196E of the VEA, a person who makes a false or misleading statement in a claim can be subject to a civil penalty. The maximum penalty for such an offence is generally set out in the respective Acts, but can include fines or imprisonment, depending on the severity and intent of the breach. It is important for claimants and relevant authorities to adhere to the principles and requirements set forth in the Statement of Principles to avoid potential legal consequences.

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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.