Statement of Principles concerning thoracolumbar intervertebral disc prolapse (Balance of Probabilities) (No. 69 of 2023)

Administered by Department of Veterans' Affairs

Legislation au F2023L00922 In force Legislative Instrument

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EXPLANATORY STATEMENT

 

STATEMENT OF PRINCIPLES CONCERNING

THORACOLUMBAR INTERVERTEBRAL DISC PROLAPSE

(BALANCE OF PROBABILITIES) (NO. 69 OF 2023)

 

VETERANS' ENTITLEMENTS ACT 1986

MILITARY REHABILITATION AND COMPENSATION ACT 2004

 

  1. This is the Explanatory Statement to the Statement of Principles concerning thoracolumbar intervertebral disc prolapse (Balance of Probabilities) (No. 69 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. 44 of 2016 (Federal Register of Legislation No. F2016L00564) determined under subsections 196B(3) and (8) of the VEA concerning thoracolumbar intervertebral disc prolapse. The Authority has decided to determine new Statements of Principles concerning "Cervical Intervertebral Disc Prolapse" and "Thoracolumbar Intervertebral Disc Prolapse". This Explanatory Statement pertains to the Statements of Principles concerning Thoracolumbar Intervertebral Disc Prolapse (Balance of Probabilities) (No.69 of 2023).

3.             The Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that thoracolumbar intervertebral disc prolapse and death from thoracolumbar intervertebral disc prolapse 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 thoracolumbar intervertebral disc prolapse (Balance of Probabilities) (No. 69 of 2023).  This Instrument along with Statement of Principles concerning cervical intervertebral disc prolapse (Balance of Probabilities) (No. 67 of 2023) will in effect replace the repealed Statement of Principles.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, thoracolumbar intervertebral disc prolapse or death from thoracolumbar intervertebral disc prolapse 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 intervertebral disc prolapse 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 'thoracolumbar intervertebral disc prolapse' in subsection 7(2);
  • including ICD-10-AM codes for 'thoracolumbar intervertebral disc prolapse' in subsection 7(3);
  • revising the reference to 'ICD-10-AM code' in subsection 7(4);
  • revising the factors in Section 9 that must as a minimum exist before it can be said on the balance of probabilities that thoracolumbar intervertebral disc prolapse or death from thoracolumbar intervertebral disc prolapse can be connected with the circumstances of a person's relevant service. The revision is required to reflect advances is sound medical scientific evidence that have occurred since the repealed Statement of Principles was made.
  • revising the definitions in the Schedule 1 – Dictionary.

 

Consultation

8.             Prior to determining this Instrument, the Authority advertised its intention to undertake an investigation in relation to intervertebral disc prolapse 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 thoracolumbar intervertebral disc prolapse 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. 69 of 2023

Kind of Injury, Disease or Death: Thoracolumbar intervertebral disc prolapse

 

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 thoracolumbar intervertebral disc prolapse;
  • 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, thoracolumbar intervertebral disc prolapse is connected with the circumstances of eligible service rendered by a person, as set out in clause 5 of the Explanatory Statement;
  • along with instrument 67 of 2023 replaces Instrument No. 44 of 2016; and
  • reflects developments in the available sound medical-scientific evidence concerning thoracolumbar intervertebral disc prolapse 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 Thoracolumbar Intervertebral Disc Prolapse (Balance of Probabilities) (No. 69 of 2023) was enacted to provide a comprehensive framework for the assessment and compensation of veterans and service personnel suffering from thoracolumbar intervertebral disc prolapse. This legislative instrument, determined by the Repatriation Medical Authority under the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004, aims to address the problem of establishing a causal link between thoracolumbar intervertebral disc prolapse and military service. It provides a clear set of medical and service-related factors that must exist for such a connection to be established on the balance of probabilities. The primary policy objective of this instrument is to ensure that the rights and benefits of affected individuals are upheld in accordance with the latest medical-scientific evidence, thereby facilitating fair and efficient claims processes under both the VEA and the MRCA. The Repatriation Medical Authority's determination of this Statement of Principles reflects an ongoing commitment to reviewing and updating medico-scientific evidence to improve the quality of outcomes for veterans and their families.

Scope and Application

The Statement of Principles concerning thoracolumbar intervertebral disc prolapse (Balance of Probabilities) (No. 69 of 2023) is determined under the Veterans' Entitlements Act 1986 (VEA) and applies to the assessment and determination of claims related to thoracolumbar intervertebral disc prolapse, including death from such a condition, in the context of eligible war service, defence service, and peacetime service. This Statement of Principles, established by the Repatriation Medical Authority, serves to facilitate the process by which claimants, the Repatriation Commission, and the Military Rehabilitation and Compensation Commission assess and determine claims under the VEA and the Military Rehabilitation and Compensation Act 2004 (MRCA). The legislation outlines specific factors that must be present and related to the service in question for a connection between the service and the condition to be established on the balance of probabilities. This involves replacing the previously repealed Statement of Principles No. 44 of 2016 with the new Statements of Principles No. 67 and 69 of 2023, which incorporate updated medical-scientific evidence. The application of this Statement of Principles is confined to Australia and operates under the federal jurisdiction, impacting veterans and current or former Defence Force members who may be eligible for compensation or medical treatment related to thoracolumbar intervertebral disc prolapse. The Statement of Principles reflects compatibility with human rights, ensuring that the rights of veterans, Defence Force members, and their dependents are upheld, including the right to social security, an adequate standard of living, and the highest attainable standard of physical and mental health. The Legislative Instrument does not derogate from any human rights and is designed to promote these rights by providing clear and reasonable criteria for determining eligibility for benefits and compensation.

Key Provisions

The Statement of Principles concerning Thoracolumbar Intervertebral Disc Prolapse (Balance of Probabilities) (No. 69 of 2023) primarily outlines the conditions under which thoracolumbar intervertebral disc prolapse or death from this condition can be considered related to certain types of service (Section 4). It specifies that the condition can be linked to eligible war service, defence service, and peacetime service under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA) (Section 5). This determination is made based on the balance of probabilities, meaning that it is more probable than not that the condition or death is connected to the service rendered. The factors that must exist for this connection to be considered include the nature of the service and the medical-scientific evidence available. The Act imposes specific obligations on the parties involved, particularly on the Repatriation Medical Authority (RMA) and claimants. The RMA is required to determine these Statements of Principles based on sound medical-scientific evidence, ensuring that the criteria for linking thoracolumbar intervertebral disc prolapse to service are clear and supported by the latest evidence (Section 6). Claimants must provide sufficient evidence to support their claims, demonstrating how their service correlates with the factors outlined in the Statement of Principles. The RMA must then assess these claims using the updated criteria and ensure that decisions are made transparently and fairly. The legislation does not explicitly outline specific offences, penalties, or civil/criminal consequences for breach. However, the implications of non-compliance could include denial of claims or improper assessment of benefits, which could lead to disputes and potential legal actions. The emphasis is on the proper application of the medical-scientific evidence in determining the connection between service and the condition, with a focus on ensuring that claimants receive appropriate compensation and medical treatment based on the established criteria. The Statement of Principles also reflects compatibility with human rights, ensuring that the rights of veterans, current and former Defence Force members, and their dependents are upheld. This includes the right to social security, an adequate standard of living, and the highest attainable standard of physical and mental health. The RMA's determination of these principles is intended to facilitate the review of decisions by the Veterans' Review Board and the Administrative Appeals Tribunal, ensuring that the rights of claimants are protected throughout the process. In summary, the Statement of Principles concerning Thoracolumbar Intervertebral Disc Prolapse (Balance of Probabilities) (No. 69 of 2023) provides a framework for determining the connection between service and the condition, imposes specific obligations on the RMA and claimants, ensures compatibility with human rights, and aims to facilitate fair and transparent assessment and determination of claims under the VEA and MRCA.

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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.