REPATRIATION MEDICAL AUTHORITY
INSTRUMENT NO. 61 of 2007
VETERANS’ ENTITLEMENTS ACT 1986
MILITARY REHABILITATION AND COMPENSATION ACT 2004
EXPLANATORY NOTES FOR TABLING
- The Repatriation Medical Authority ('the Authority'), under subsection 196B(8) of the Veterans' Entitlements Act 1986 ('the VEA') revokes Instrument No. 59 of 1995 determined under subsection 196B(2) of the VEA concerning spina bifida and death from spina bifida.
2. The Authority is of the view that there is sound medical-scientific evidence that indicates that spina bifida and death from spina bifida 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, Instrument No. 61 of 2007 concerning spina bifida. This Instrument will in effect replace the revoked Statement of Principles.
3. The provisions of the Military Rehabilitation and Compensation Act 2004 ('the MRCA') relating to claims for compensation commenced on 1 July 2004. Claims under section 319 of the MRCA for acceptance of liability for a service injury sustained, a service disease contracted or service death on or after 1 July 2004 are determined by the Military Rehabilitation and Compensation Commission by reference to Statements of Principles issued by the Authority pursuant to the VEA.
4. 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;
warlike service under the MRCA;
non-warlike service under the MRCA,
before it can be said that a reasonable hypothesis has been raised connecting spina bifida or death from spina bifida, with the circumstances of that service.
5. This new instrument results from an investigation notified by the Authority in the Government Notices Gazette of 15 June 2005 concerning spina bifida in accordance with section 196G of the Act. 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.
6. The contents of the new Instrument are in similar terms as the revoked Instrument. Comparing the new and the revoked Instruments, the differences include:
- adopting the latest revised Instrument format, which commenced in 2005;
- deleting the ICD code from the Instrument header;
- revising the definition of 'spina bifida' in clause 3;
- deleting the factor concerning 'physical trauma';
- new definitions of 'death from spina bifida'; 'ICD-10-AM code'; 'relevant service' and 'terminal event' in clause 6;
- deleting definitions of 'ICD code' and 'physical trauma' in clause 6; and
- specifying a date of effect for the Instrument in clause 8.
7. Further changes to the format of the Instrument reflect the commencement of the MRCA and clarify that pursuant to subsection 196B(3A) of the VEA, the Statement of Principles has been determined for the purposes of both the VEA and the MRCA.
8. Prior to determining this instrument, the Authority advertised its intention to undertake an investigation in relation to spina bifida in the Government Notices Gazette of 15 June 2005, 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.
9. On 20 December 2006, the Authority wrote to organisations representing veterans, service personnel and their dependants regarding the proposed Instrument and the medical-scientific material considered by the Authority. This letter emphasised the deletion of factors relating to physical trauma. The Authority provided an opportunity to the organisations to make representations in relation to the proposed instrument prior to its determination. No submissions were received for consideration by the Authority.
10. The determining of this new instrument finalises the investigation in relation to spina bifida as advertised in the Government Notices Gazette of 15 June 2005.
11. A list of references relating to the above condition is available, on written request, from the Repatriation Medical Authority Secretariat.
Overview
The Repatriation Medical Authority Instrument No. 61 of 2007, concerning spina bifida, was enacted to replace the previous Instrument No. 59 of 1995, which was revoked due to new medical-scientific evidence linking spina bifida and deaths from spina bifida to particular kinds of military service. This new instrument, determined under the Veterans' Entitlements Act 1986, provides a Statement of Principles that outlines the minimum factors required to establish a connection between spina bifida or death from spina bifida and the service rendered by a person, including operational, peacekeeping, hazardous, warlike, and non-warlike service. The enactment of this instrument addresses the need to update the legal framework in light of evolving medical-scientific understanding, ensuring that veterans and their families receive appropriate compensation and support. The instrument also aligns with the Military Rehabilitation and Compensation Act 2004, which governs claims for compensation for injuries and diseases sustained after 1 July 2004.
Scope and Application
The Veterans’ Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004 apply to veterans and service personnel, and their dependents, who have sustained injuries or contracted diseases during their service. The Repatriation Medical Authority, under these Acts, has the power to issue Instruments concerning specific conditions related to service, such as spina bifida, which are now governed by Instrument No. 61 of 2007. This instrument specifies the conditions under which spina bifida or death from spina bifida can be connected to certain types of service, including operational, peacekeeping, hazardous, warlike, and non-warlike service, as defined by the Acts. The instrument replaces the previously revoked Instrument No. 59 of 1995 and applies to claims for compensation that commenced on or after 1 July 2004, with the Authority determining these claims by reference to the new Statement of Principles. The instrument does not specify any exclusions, exemptions, or thresholds, and its application extends to all relevant claims under the VEA and MRCA.
Key Provisions
The Repatriation Medical Authority, under the authority granted by the Veterans' Entitlements Act 1986 (VEA), has revoked Instrument No. 59 of 1995, which dealt with spina bifida and death from spina bifida. This decision is based on subsection 196B(8) of the VEA and the Authority's assessment of current medical-scientific evidence indicating a relationship between spina bifida and certain types of military service. In place of the revoked instrument, Instrument No. 61 of 2007 has been issued, which outlines the Statement of Principles concerning spina bifida. This new instrument was determined under subsection 196B(2) of the VEA and supersedes the previous instrument.
The Statement of Principles, detailed in the new Instrument No. 61, sets forth the minimum factors that must be present to establish a reasonable hypothesis connecting spina bifida or death from spina bifida with the service rendered. This includes various types of military service such as operational, peacekeeping, hazardous, warlike, and non-warlike service. These factors must be linked to the service under the VEA or the Military Rehabilitation and Compensation Act 2004 (MRCA). Claims for compensation under section 319 of the MRCA, regarding injuries, diseases, or deaths occurring on or after 1 July 2004, are assessed by the Military Rehabilitation and Compensation Commission against these Statements of Principles.
The obligations imposed by this legislation require the Authority to ensure that all relevant medical-scientific evidence is considered when determining the Statement of Principles. The Authority must also undertake an investigation and consult with relevant stakeholders, including veterans' organisations and medical experts, to gather submissions and feedback. In this case, although submissions were invited, none were received. The Authority must also ensure that the Statement of Principles is updated to reflect the latest medical evidence and legal requirements, including any changes necessitated by the introduction of the MRCA.
Breaches of the provisions in the Statement of Principles or the failure to comply with the obligations to consult and gather submissions could potentially lead to legal challenges or administrative actions. However, the explanatory notes do not specify particular offences, penalties, or consequences for breaches. Typically, under the VEA and the MRCA, penalties for non-compliance could include fines or other civil remedies, depending on the nature and severity of the breach. The specific penalties would be determined in accordance with the relevant provisions of the Acts.