REPATRIATION MEDICAL AUTHORITY

INSTRUMENT NO. 81 of 2015

VETERANS’ ENTITLEMENTS ACT 1986

MILITARY REHABILITATION AND COMPENSATION ACT 2004

EXPLANATORY NOTES FOR TABLING

1. The Repatriation Medical Authority (the Authority), under subsection 196B(8) of the Veterans' Entitlements Act 1986 (the VEA), revokes Instrument No. 43 of 2007 determined under subsection 196B(2) of the VEA concerning tuberculosis.
2. The Authority is of the view that there is sound medical-scientific evidence that indicates that tuberculosis and death from tuberculosis 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 tuberculosis (No. 81 of 2015).  This Instrument will in effect replace the revoked Statement of Principles.

Purpose and Operation

3.             The Statement of Principles will be applied in determining claims under the VEA and the Military Rehabilitation and Compensation Act 2004 (the MRCA).

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;

 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 tuberculosis or death from tuberculosis, with the circumstances of that service.  The Statement of Principles has been determined for the purposes of both the VEA and the MRCA.

5.             This Instrument results from an investigation notified by the Authority in the Government Notices Gazette of 31 October 2012 concerning tuberculosis 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.

6.             The contents of this Instrument are in similar terms as the revoked Instrument.  Comparing this Instrument and the revoked 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 'tuberculosis' in subsection 7(2);
• revising the factor in subsection 9(1) concerning 'being exposed to bacteria belonging to the Mycobacterium tuberculosis complex';
• revising the factor in subsection 9(2) concerning 'overcrowded and poorly ventilated living or working conditions';
• revising the factor in subsection 9(4) concerning 'unpasteurised milk, unpasteurised dairy products or meat from an animal infected with the corresponding organism', for tuberculosis due to infection with Mycobacterium bovis or Mycobacterium caprae only;
• revising the factor in subsection 9(5)(a) concerning 'intravesical BCG therapy', for active tuberculosis disease due to infection with Mycobacterium bovis BCG only;
• revising the factor in subsection 9(5)(b) concerning 'being vaccinated with BCG vaccine', for active tuberculosis disease due to infection with Mycobacterium bovis BCG only;
• revising the factors in subsections 9(6) & 9(17) concerning 'an immunocompromised state as specified';
• revising the factors in subsections 9(8) & 9(19) concerning 'inhaling respirable crystalline silica dust in an enclosed space';
• new factors in subsections 9(9) & 9(20) concerning 'inhaling respirable crystalline silica dust in an open environment';
• new factors in subsections 9(10) & 9(21) concerning 'smoking';
• new factors in subsections 9(11) & 9(22) concerning 'being in an atmosphere with a visible tobacco smoke haze';
• revising the factors in subsections 9(12)(a) & 9(23)(a) concerning 'smoking', for pulmonary tuberculosis only;
• new factors in subsections 9(12)(b) & 9(23)(b) concerning 'being in an atmosphere with a visible tobacco smoke haze', for pulmonary tuberculosis only;
• new factors in subsections 9(14) & 9(25) concerning 'beclomethasone, or equivalent inhaled glucocorticoid';
• new factors in subsections 9(15) & 9(26) concerning 'alcohol';
• new factors in subsections 9(16) & 9(27) concerning 'alcohol use disorder';
• deleting factors concerning 'handling biological material infected with organisms belonging to the Mycobacterium tuberculosis complex' and 'living or working with an animal from a species known to be susceptible to infection with an organism belonging to the Mycobacterium tuberculosis complex' as they are now covered by the factor in subsection 9(1) concerning 'being exposed to bacteria belonging to the Mycobacterium tuberculosis complex';
• deleting factors concerning 'protein-calorie malnutrition' as they are now covered by the factors in subsections 9(6) & 9(17) concerning 'an immunocompromised state as specified';
• new definitions of 'alcohol', 'being exposed to bacteria belonging to the Mycobacterium tuberculosis complex', 'being treated with an immunosuppressive drug', 'Body Mass Index (BMI)', 'chronic renal failure', 'equivalent inhaled glucocorticoid', 'immunocompromised state as specified', 'MRCA', 'severe malnutrition' and 'VEA' in Schedule 1 - Dictionary;
• revising the definitions of 'pack-years of cigarettes, or the equivalent thereof in other tobacco products', 'protein-calorie malnutrition', 'relevant service' and 'specified chronic disease' in Schedule 1 - Dictionary; and
• deleting the definitions of 'an immunosuppressed state affecting cell-mediated immunity', 'minimal ideal weight' and 'moderate to severe renal failure'.

Consultation

7.             Prior to determining this Instrument, the Authority advertised its intention to undertake an investigation in relation to tuberculosis in the Government Notices Gazette of 31 October 2012, 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.

Human Rights

8.             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

9.             The determining of this Instrument finalises the investigation in relation to tuberculosis as advertised in the Government Notices Gazette of 31 October 2012.

References

10.         A list of references relating to the above condition is available to any person or organisation referred to in subsection 196E(1)(a) to (c) of the VEA.  Any such request must be made in writing to the Repatriation Medical Authority at the following address:

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. 81 of 2015

Kind of Injury, Disease or Death: Tuberculosis

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(8) of the Veterans' Entitlements Act 1986 (the VEA) for the purposes of the VEA and the Military Rehabilitation and Compensation Act 2004 (the MRCA).

2. This Legislative Instrument:-

• facilitates claimants in making, and the Repatriation 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 tuberculosis;
• 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 tuberculosis with the circumstances of eligible service rendered by a person, as set out in clause 4 of the Explanatory Notes;
• replaces Instrument No. 43 of 2007; and
• reflects developments in the available sound medical-scientific evidence concerning tuberculosis 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; and
• the rights of persons with disabilities by facilitating the determination of claims relating to treatment and rehabilitation (Art 26, CRPD).

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.