Statement of Principles concerning tooth decay (dental caries) (Balance of Probabilities) (No.75 of 2024)

Administered by Department of Veterans' Affairs

Legislation au F2024L01324 In force Legislative Instrument

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EXPLANATORY STATEMENT

 

STATEMENT OF PRINCIPLES CONCERNING

TOOTH DECAY (DENTAL CARIES)

(BALANCE OF PROBABILITIES) (NO. 75 OF 2024)

 

VETERANS' ENTITLEMENTS ACT 1986

MILITARY REHABILITATION AND COMPENSATION ACT 2004

 

  1.              This is the Explanatory Statement to the Statement of Principles concerning tooth decay (dental caries) (Balance of Probabilities) (No. 75 of 2024).

Background

  1.              The Repatriation Medical Authority (the Authority), under subsection 196B(8) of the Veterans' Entitlements Act 1986 (the VEA), repeals Instrument No. 123 of 2015 (Federal Register of Legislation No. F2015L01676) determined under subsection 196B(3) of the VEA concerning dental caries.
  2.              The Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that tooth decay (dental caries) and death from tooth decay (dental caries) 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 tooth decay (dental caries) (Balance of Probabilities) (No. 75 of 2024).  This Instrument will in effect replace the repealed Statement of Principles.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 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, tooth decay (dental caries) or death from tooth decay (dental caries) 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.

  1.              This Instrument results from an investigation notified by the Authority in the Government Notices Gazette of 7 November 2023 concerning dental caries 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 'tooth decay (dental caries)' in subsection 7(2);
  • revising the reference to 'ICD-10-AM code' in subsection 7(4);
  • revising the factor in subsection 9(1) concerning having tooth wear;
  • revising the factor in subsection 9(2) concerning having loss of gum tissue;
  • revising the factor in subsection 9(3) concerning having a course of therapeutic radiation;
  • revising the factor in subsection 9(4) concerning having dry mouth;
  • revising the factor in subsection 9(5) concerning inability to obtain therapeutic exposure to fluoride;
  • revising the factor in subsection 9(6) concerning consuming foods, beverages or other products containing sugar or processed starch;
  • revising the factor in subsection 9(7) concerning having smoked;
  • new factor in subsection 9(8) concerning the use of chewing tobacco;
  • revising the factor in subsection 9(9) concerning inability to perform effective personal cleaning of the affected tooth;
  • revising the factor in subsection 9(10) concerning inability to access preventative professional dental care;
  • revising the factor in subsection 9(11) concerning being a prisoner of war;
  • new definition of 'one pack-year' in Schedule 1 - Dictionary; and
  • deleting the definitions of 'acquired enamel defect', 'being exposed to fermentable dietary carbohydrates as specified', 'exposure to fluoride', 'fermentable dietary carbohydrates', 'gingival recession', 'hyposalivation', 'pack-years of cigarettes, or the equivalent thereof in other tobacco products' and 'xerostomia'.

Consultation

  1.              Prior to determining this Instrument, the Authority advertised its intention to undertake an investigation in relation to dental caries in the Government Notices Gazette of 7 November 2023, 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 dental caries as advertised in the Government Notices Gazette of 7 November 2023.

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. 75 of 2024

Kind of Injury, Disease or Death: Tooth decay (dental caries)

 

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 tooth decay (dental caries);
  • 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, tooth decay (dental caries) 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. 123 of 2015; and
  • reflects developments in the available sound medical-scientific evidence concerning tooth decay (dental caries) 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 tooth decay (dental caries) (Balance of Probabilities) (No. 75 of 2024) was enacted to address the gap in determining the connection between tooth decay and certain types of military service, facilitating claims under the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004. This Statement of Principles was determined by the Repatriation Medical Authority under the authority of the Veterans' Entitlements Act 1986, and it aims to clarify the factors that must exist to establish a connection between tooth decay and specific military service on the balance of probabilities. The instrument is intended to ensure that claimants and the relevant compensation commissions have a clear framework for assessing and determining compensation claims related to tooth decay, thereby promoting the human rights of veterans and current and former Defence Force members, including their right to social security and an adequate standard of living. This legislative instrument replaces the previous Statement of Principles No. 123 of 2015, reflecting the latest medical-scientific evidence available.

Scope and Application

The Statement of Principles concerning tooth decay (dental caries) (Balance of Probabilities) (No. 75 of 2024) applies to persons who have served in eligible war service, defence service, or peacetime service, as defined under the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004. This Statement of Principles outlines the circumstances in which tooth decay or death from tooth decay is considered connected to particular kinds of service, thereby facilitating claims for compensation and medical treatment. The Act operates within the jurisdiction of the Commonwealth of Australia and replaces the previously repealed Instrument No. 123 of 2015. There are no specific exclusions mentioned in the text, but the determination of the principles is based on the sound medical-scientific evidence available. The Authority may extend or restrict the application of this Instrument through subordinate instruments. The contents of this Instrument are 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.

Key Provisions

The main operative sections of the Statement of Principles concerning tooth decay (dental caries) (Balance of Probabilities) (No. 75 of 2024) are found in sections 1 to 11 and Schedule 1, which collectively outline the criteria and factors for determining if tooth decay is connected to eligible service under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA). Section 1 specifies the commencement date of the instrument, while section 7 provides a definition of tooth decay (dental caries). Section 9 lists the factors that must exist for tooth decay to be considered connected to service, including exposure to certain conditions and lifestyle factors. Schedule 1 contains definitions of terms used throughout the Statement of Principles, such as 'one pack-year'. The obligations and requirements imposed by the Act on the parties or entities it governs include the need for claimants to provide evidence that meets the criteria set out in the Statement of Principles to be eligible for compensation or medical treatment. The Repatriation Commission and the Military Rehabilitation and Compensation Commission are required to assess claims based on these criteria, ensuring that they are made in accordance with the sound medical-scientific evidence. The Veterans' Review Board and the Administrative Appeals Tribunal must also consider the Statement of Principles when reviewing decisions made under the VEA and the MRCA. The Repatriation Medical Authority, which determined this instrument, must ensure it is based on the best available evidence and is compatible with human rights. Offences, penalties, or consequences for breach of the provisions in the Statement of Principles are not explicitly detailed within the text. However, non-compliance with the criteria set out for determining the connection between tooth decay and service could result in claims being denied. This would prevent claimants from receiving the compensation and medical treatment they might be entitled to under the VEA and the MRCA. Additionally, any procedural errors in the assessment process could lead to reviews or appeals, potentially resulting in further administrative actions or judicial review. The maximum penalties for any breaches would depend on the specific legislation under which the offence is committed, such as the VEA or the MRCA, and could include fines or other sanctions as prescribed by 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.