Statement of Principles concerning spinal adhesive arachnoiditis (Balance of Probabilities) (No. 75 of 2020)

Administered by Department of Veterans' Affairs

Legislation au F2020L01393 In force Legislative Instrument

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EXPLANATORY STATEMENT

 

STATEMENT OF PRINCIPLES CONCERNING

SPINAL ADHESIVE ARACHNOIDITIS

(BALANCE OF PROBABILITIES) (NO. 75 OF 2020)

 

VETERANS' ENTITLEMENTS ACT 1986

MILITARY REHABILITATION AND COMPENSATION ACT 2004

 

  1. This is the Explanatory Statement to the Statement of Principles concerning spinal adhesive arachnoiditis (Balance of Probabilities) (No. 75 of 2020).

Background

2.             The Repatriation Medical Authority (the Authority), under subsection 196B(8) of the Veterans' Entitlements Act 1986 (the VEA), repeals Instrument No. 117 of 2011 (Federal Register of Legislation No. F2011L01749) determined under subsection 196B(3) of the VEA concerning spinal adhesive arachnoiditis.

3.             The Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that spinal adhesive arachnoiditis and death from spinal adhesive arachnoiditis 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 spinal adhesive arachnoiditis (Balance of Probabilities) (No. 75 of 2020).  This Instrument will in effect replace the repealed Statement of Principles.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, spinal adhesive arachnoiditis or death from spinal adhesive arachnoiditis 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 6 November 2018 concerning spinal adhesive arachnoiditis 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 'spinal adhesive arachnoiditis' in subsection 7(2);
  • revising the factors in subsections 9(1) and 9(13) concerning having severe spinal trauma involving the affected site;
  • revising the factors in subsections 9(2) and 9(14) concerning undergoing spinal surgery involving the affected site;
  • new factors in subsections 9(3) and 9(15) concerning having a lumboperitoneal shunt at the affected site;
  • revising the factors in subsections 9(4) and 9(16) concerning having a myelogram involving an injection of oil-soluble intrathecal radiological contrast agent;
  • new factors in subsections 9(5) and 9(17) concerning having a myelogram involving an injection of water-soluble intrathecal radiological contrast agent;
  • new factors in subsections 9(6) and 9(18) concerning having an injection of Thorotrast (thorium dioxide suspension) into the subarachnoid space;
  • new factors in subsections 9(7) and 9(19) concerning having an in situ intrathecal drug delivery system at the affected site;
  • new factors in subsections 9(8) and 9(20) concerning having intrathecal injection of methotrexate or cytosine arabinoside;
  • new factors in subsections 9(9) and 9(21) concerning having intrathecal injection of radioactive gold at the affected site;
  • revising the factors in subsections 9(10) and 9(22) concerning having an infection from the specified list of infections;
  • revising the factors in subsections 9(11) and 9(23) concerning having a subarachnoid haemorrhage;
  • revising the factors in subsections 9(12) and 9(24) concerning having a spinal subdural haematoma at the affected site;
  • deleting the factors concerning having an injury from a dural puncture involving the affected site;
  • new definitions of 'MRCA', 'specified list of infections', 'specified list of radiological contrast agents' and 'VEA' in Schedule 1 - Dictionary;
  • revising the definition of 'relevant service' and 'severe spinal trauma' in Schedule 1 - Dictionary; and
  • deleting the definitions of 'an infection from the specified list', 'an injury from a dural puncture' and 'ICD-10-AM code'.

Consultation

8.             Prior to determining this Instrument, the Authority advertised its intention to undertake an investigation in relation to spinal adhesive arachnoiditis in the Government Notices Gazette of 6 November 2018, 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.

9.             On 15 June 2020, 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 having an injury from a dural puncture involving the affected site within the two years before the clinical onset of spinal adhesive arachnoiditis and having an injury from a dural puncture involving the affected site within the one year before the clinical worsening of spinal adhesive arachnoiditis.  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.  Minor changes were made to the proposed Instrument following this consultation process.

Human Rights

10.         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

11.         The determining of this Instrument finalises the investigation in relation to spinal adhesive arachnoiditis as advertised in the Government Notices Gazette of 6 November 2018.

References

12.         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. 75 of 2020

Kind of Injury, Disease or Death: Spinal adhesive arachnoiditis

 

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 spinal adhesive arachnoiditis;
  • 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, spinal adhesive arachnoiditis 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. 117 of 2011; and
  • reflects developments in the available sound medical-scientific evidence concerning spinal adhesive arachnoiditis 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 spinal adhesive arachnoiditis (Balance of Probabilities) (No. 75 of 2020) was enacted to address the issue of spinal adhesive arachnoiditis, a debilitating condition, in relation to certain kinds of service under the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004. This legislation was introduced by the Repatriation Medical Authority under the authority vested in it by subsection 196B(8) of the Veterans' Entitlements Act 1986. The primary objective of this Statement of Principles is to outline the factors that must exist for spinal adhesive arachnoiditis or death from the condition to be considered connected with specific types of service, thereby facilitating the assessment and determination of claims under the respective Acts. This legislation aims to ensure that the qualifying conditions for benefits and compensation are reasonable, proportionate, and transparent, thereby promoting the rights of veterans and service personnel, including those with disabilities, without discrimination.

Scope and Application

The Statement of Principles concerning spinal adhesive arachnoiditis (Balance of Probabilities) (No. 75 of 2020) applies to veterans and current or former Defence Force members, as well as their dependents, who may be affected by spinal adhesive arachnoiditis and wish to claim benefits under the Veterans' Entitlements Act 1986 or the Military Rehabilitation and Compensation Act 2004. The legislation sets out the criteria that must be met for spinal adhesive arachnoiditis to be considered connected to particular kinds of service, such as eligible war service, defence service, or peacetime service, thus facilitating claims and the assessment process by the relevant authorities. The scope of this Act is national, as it pertains to federal legislation concerning veterans and Defence Force members throughout Australia. The Act includes specific exclusions, such as certain types of injuries from dural punctures, and it has undergone revisions to better reflect current medical-scientific evidence. Subordinate instruments may further extend or clarify the application of this legislation, ensuring that it remains responsive to evolving medical understandings and claimant needs.

Key Provisions

The Statement of Principles concerning spinal adhesive arachnoiditis (Balance of Probabilities) (No. 75 of 2020) (the Instrument) sets out the circumstances in which it can be said that, on the balance of probabilities, spinal adhesive arachnoiditis is connected with the circumstances of particular kinds of service rendered by a person (sections 5 and 9). This determination replaces the previous Statement of Principles concerning spinal adhesive arachnoiditis (Instrument No. 117 of 2011) and is to be applied in determining claims under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA). The Authority must determine a Statement of Principles when it is of the view that on the available sound medical-scientific evidence it is more probable than not that a particular kind of injury, disease or death can be related to particular kinds of service (subsection 196B(3) of the VEA). The Authority is required to determine Statements of Principles to facilitate claimants in making, and the Repatriation Commission and the Military Rehabilitation and Compensation Commission in assessing, claims under the VEA and the MRCA respectively (subsection 196B(1) of the VEA). The Authority is also required to facilitate the review of such decisions by the Veterans' Review Board and the Administrative Appeals Tribunal (subsection 196B(2) of the VEA). The Authority must give effect to the requirements of the VEA and the MRCA when determining a Statement of Principles (subsection 196B(4) of the VEA). The Authority is required to advertise its intention to undertake an investigation into a particular kind of injury, disease or death in the Government Notices Gazette (subsection 196G(2) of the VEA) and may also advertise in such other ways as it considers appropriate (subsection 196G(3) of the VEA). The Authority must circulate a copy of the notice of intention to investigate to a wide range of organisations representing veterans, service personnel and their dependants and invite 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 (subsections 196G(4) and (5) of the VEA). The Authority must provide an opportunity to the organisations representing veterans, service personnel and their dependants to make representations in relation to the proposed Statement of Principles prior to its determination (subsection 196G(6) of the VEA). If the Authority has regard to any submissions made in response to the advertisement, it must include a summary of those submissions and the Authority's response to the submissions in the Explanatory Statement for the Statement of Principles (subsection 196G(7) of the VEA). The Authority must give effect to the requirements of the VEA when determining a Statement of Principles (subsection 196B(4) of the VEA). The Authority is required to have regard to any submissions made in response to the advertisement of its intention to undertake an investigation and to include a summary of those submissions and the Authority's response to the submissions in the Explanatory Statement for the Statement of Principles (subsections 196G(6) and (7) of the VEA). The Authority is also required to have regard to the matters it is required to take into account when determining a Statement of Principles (subsection 196B(4) of the VEA). There are no offences or penalties associated with the failure to comply with the obligations or requirements of the VEA in relation to determining a Statement of Principles. However, the failure to comply with the requirements of the VEA in relation to determining a Statement of Principles may give rise to a right of review under the Administrative Appeals Tribunal Act 1975.

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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.