Statement of Principles concerning smallpox (Reasonable Hypothesis) (No. 5 of 2026)

Administered by Department of Veterans' Affairs

Legislation au F2025L01627 In force Legislative Instrument

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EXPLANATORY STATEMENT

 

STATEMENT OF PRINCIPLES CONCERNING

SMALLPOX

(REASONABLE HYPOTHESIS) (NO. 5 OF 2026)

 

VETERANS' ENTITLEMENTS ACT 1986

MILITARY REHABILITATION AND COMPENSATION ACT 2004

 

  1.              This is the Explanatory Statement to the Statement of Principles concerning smallpox (Reasonable Hypothesis) (No. 5 of 2026).

Background

  1.              The Repatriation Medical Authority (the Authority), under subsection 196B(8) of the Veterans' Entitlements Act 1986 (the VEA), repeals Instrument No. 89 of 2016 (Federal Register of Legislation No. F2016L01669) determined under subsection 196B(2) of the VEA concerning smallpox.
  2.              The Authority is of the view that there is sound medical-scientific evidence that indicates that smallpox and death from smallpox 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 smallpox (Reasonable Hypothesis) (No. 5 of 2026).  This Instrument will in effect replace the repealed Statement of Principles.

Purpose and Operation

  1.              The Statement of Principles will be applied in determining claims under the VEA and the Military Rehabilitation and Compensation Act 2004 (the MRCA).
  2.              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 smallpox or death from smallpox, with the circumstances of that service.  The Statement of Principles has been determined for the purposes of both the VEA and the MRCA.

  1.              This Instrument results from an investigation notified by the Authority in the Government Notices Gazette of 30 October 2024 concerning smallpox 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.
  2.              The contents of this Instrument are in similar terms as the repealed Instrument.  Comparing this Instrument and the repealed Instrument, the differences include:
  • specifying a day of commencement for the Instrument in section 2;
  • revising the definition of 'smallpox' in subsection 7(2);
  • revising the factor in subsection 9(1) concerning being exposed to the variola virus;
  • revising the factor in subsection 9(3) concerning being pregnant;
  • new factor in subsection 9(2) concerning inability to access appropriate smallpox vaccination;
  • new factor in subsection 9(4) concerning compromised immune system; and
  • deleting the definitions of ‘being exposed to the variola virus’.

Consultation

  1.              Prior to determining this Instrument, the Authority advertised its intention to undertake an investigation in relation to smallpox in the Government Notices Gazette of 30 October 2024, 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

  1.              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

  1.          The determining of this Instrument finalises the investigation in relation to smallpox as advertised in the Government Notices Gazette of 30 October 2024.

References

  1.          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. 5 of 2026

Kind of Injury, Disease or Death: Smallpox

 

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(2) 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 smallpox;
  • 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 smallpox with the circumstances of eligible service rendered by a person, as set out in clause 5 of the Explanatory Statement;
  • replaces Instrument No. 89 of 2016; and
  • reflects developments in the available sound medical-scientific evidence concerning smallpox 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 smallpox (Reasonable Hypothesis) (No. 5 of 2026) was enacted to address the need for updated medical-scientific evidence regarding the relationship between smallpox, death from smallpox, and particular kinds of service under the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004. This legislative instrument, determined by the Repatriation Medical Authority under the Veterans' Entitlements Act, repeals the previous Instrument No. 89 of 2016 and incorporates recent medical-scientific evidence. The primary objective of this Statement of Principles is to facilitate the assessment and determination of claims for social security benefits and compensation for veterans and Defence Force members who have contracted smallpox. It outlines the minimum factors that must be present to establish a reasonable hypothesis connecting smallpox or death from smallpox to specific types of service, ensuring that the qualifying conditions for benefits are reasonable, proportionate, and transparent. This legislative instrument promotes various human rights, including the right to social security, an adequate standard of living, and the highest attainable standard of physical and mental health. It also ensures that these rights are exercised without discrimination, thereby facilitating the review of decisions by the Veterans' Review Board and the Administrative Appeals Tribunal, and improving the medico-scientific quality of outcomes under the relevant Acts.

Scope and Application

The Statement of Principles concerning smallpox (Reasonable Hypothesis) (No. 5 of 2026) applies to veterans, service personnel, and their dependants making claims under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA). This legislation is determined by the Repatriation Medical Authority (the Authority) pursuant to subsection 196B(2) of the VEA and is applicable to operational, peacekeeping, hazardous, British nuclear test defence, warlike, and non-warlike service. The principles are designed to establish the minimum factors that must exist to raise a reasonable hypothesis connecting smallpox or death from smallpox with the circumstances of the service rendered by an individual. The scope of the legislation is national, as it applies across Australia under the Commonwealth jurisdiction. There are no exclusions, exemptions, or thresholds specified in the legislation; however, it does extend its application through subordinate instruments. The principles outlined in this instrument replace the previously repealed Instrument No. 89 of 2016, reflecting advancements in medical-scientific evidence concerning smallpox.

Key Provisions

The main operative sections of this legislation (sections 2 to 9) detail the circumstances under which smallpox can be reasonably hypothesised to have been contracted due to particular kinds of military service. Specifically, the legislation sets out a series of factors that must exist for a claim to be considered, including exposure to the variola virus, inability to access appropriate smallpox vaccination, and a compromised immune system (sections 7 and 9). These factors must be related to specified types of service, such as operational, peacekeeping, or hazardous service, and warlike or non-warlike service (section 5). This legislation also specifies the commencement date for the new instrument (section 2) and revises the definition of 'smallpox' (section 7(2)). The obligations imposed by the Act on the parties it governs include the requirement for claimants to present evidence that meets the criteria outlined in the Statement of Principles (section 5). The Repatriation Commission and Military Rehabilitation and Compensation Commission must assess claims based on the sound medical-scientific evidence provided (section 1). The legislation also requires the Repatriation Medical Authority to ensure that the instrument is compatible with human rights and freedoms recognised in international instruments (section 10). The Authority must facilitate the review of decisions by the Veterans' Review Board and the Administrative Appeals Tribunal (section 3). There are no explicit offences or penalties mentioned in the legislation for breach of its provisions. However, failure to comply with the requirements for making a claim, or providing false information, could potentially lead to civil or criminal consequences under the relevant Acts (Veterans' Entitlements Act 1986 and Military Rehabilitation and Compensation Act 2004). The consequences could include fines or imprisonment, depending on the nature and severity of the breach. The specific penalties would be determined by the courts in accordance with the provisions of those Acts.

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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.