Commonwealth: Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 (Cth)

Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 No. 98 of 1994 TABLE OF PROVISIONS PART 1—PRELIMINARY Section 1. Short title 2. Commencement 3. Application PART 2—AMENDMENTS OF THE VETERANS' ENTITLEMENTS ACT 1986 Division 1—Principal Act 4. Principal Act Division 2—Determination of claims for pensions by reference to Statement of Principles 5. Index of definitions 6. Insertion of section: 5AB. Repatriation Medical Authority definitions 7. General definitions 8. Standard of proof TABLE OF PROVISIONS—continued Section 9. Insertion of sections: 120A. Reasonableness of hypothesis to be assessed by reference to Statement of Principles 120B. Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles 10. Insertion of section: 180A. Determination by Commission 11. Insertion of Parts: PART XIA—THE REPATRIATION MEDICAL AUTHORITY Division 1—Establishment, functions and powers 196A. Establishment of Authority 196B. Functions of Authority 196C. Powers of Authority with respect to investigations 196D. Disallowable instrument 196E. Request for an investigation, review etc. 196F. Submissions to the Authority 196G. Notice of investigation 196H. Copyright in submissions 1961. Access to information 196J. Notice of decision not to make etc. Statement of Principles 196K. Repatriation Medical Authority to send information to Review Council Division 2—Constitution and meetings 196L. Membership 196M. Qualifications 196N. Tenure of office 1960. Resignation 196P. Termination of appointment 196Q. Acting Chairperson 196R. Meetings 196S. Remuneration and allowances Division 3—Staff and consultants 196T. Staff 196U. Consultants PART XIB—THE SPECIALIST MEDICAL REVIEW COUNCIL Division 1—Establishment and functions 196V. Establishment of Council 196W. Functions of Review Council 196X. Notification of decision of Review Council to be notified in Gazette 196Y. Request for review of contents of Statement of Principles etc. 196Z. Request for review of decision of Repatriation Medical Authority not to carry out an investigation 196ZA. Submissions to Review Council 196ZB. Notice of investigation 196ZC. Copyright in submissions 196ZD. Access to information Division 2—Constitution and meetings 196ZE. Membership 196ZF. Qualifications TABLE OF PROVISIONS—continued Section 196ZG. Tenure of office 196ZH. Resignation 196ZI. Termination of appointment 196ZJ. Acting Convener 196ZK. Conduct of reviews 196ZL. Remuneration and allowances Division 3—Staff 196ZM. Staff Division 3—Australian mariners 12. Eligibility related definitions 13. Operational service 14. Eligible war service 15. Consequential amendments Division 4—Special and intermediate rates of pension 16. Intermediate rate of pension 17. Special rate of pension Division 5—Comparable foreign pensions 18. Index of definitions 19. General definitions 20. Insertion of section: 36JA. Secretary may require claimant to take action to obtain a comparable foreign pension 21. Insertion of section: 37JA. Secretary may require claimant to take action to obtain a comparable foreign pension 22. Insertion of section: 38JA. Secretary may require claimant to take action to obtain a comparable foreign pension 23. Insertion of section: 39JA. Secretary may require claimant to take action to obtain a comparable foreign pension 24. Insertion of section: 54BA. Secretary may require a person to whom a service pension is being paid to take action to obtain a comparable foreign pension 25. Insertion of section: 56EB. Cancellation or suspension for failure to take action to obtain a comparable foreign pension 26. Resumption of a payment after suspension 27. Date of effect of adverse determination Division 6—Partner service pension 28. Family relationships definitions—couples 29. Special residence and resident definitions 30. Eligibility for partner service pension 31. How to work out the rate of a person's partner service pension 32. Application of income and assets test reductions for income tax purposes 33. Rate of age, invalidity, partner and carer service pension (no dependent children) 34. Rate of age, invalidity, partner and carer service pension (dependent child or children) 35. Rate of age, invalidity, partner and carer service pension (dependent child or children) TABLE OF PROVISIONS—continued Section 36. Repeal of Subdivision 37. Application of financial hardship rules 38. Consequential amendments Division 7—Income support supplement 39. Family relationships definitions—couples 40. Family relationships definitions—children 41. Income test definitions 42. Rent definitions 43. General definitions 44. Insertion of Part: PART IIIA—INCOME SUPPORT SUPPLEMENT Division 1—Eligibility for and payability of income support supplement 45A. Eligibility for income support supplement 45B. Income support supplement may not be payable in some circumstances 45C. Income support supplement generally not payable before claim 45D. Restrictions on dual pensions 45E. Election to continue to receive social security pension 45F. Claim for social security pension by war widower or war widow pending at commencement of Part 45G. Review of decision rejecting a claim by war widower or war widow for social security pension pending at commencement of Part 45H. Review of decision concerning rate of social security pension paid to war widower or war widow pending at commencement of Part Division 2—Claim for income support supplement 451. Need for a claim 45J. Who can claim? 45K. Form of claim 45L. Lodgment of claim 45M. Claimant must be Australian resident and in Australia 45N. Not necessary to make a claim in certain circumstances 450. Withdrawal of claim Division 3—Investigation of claim 45P. Secretary to investigate claim and submit it to Commission Division 4—Consideration and determination of claim 45Q. Duties of Commission in relation to claim 45R. Date of determination Division 5—Rate of income support supplement Subdivision A—General 45S. How to work out the rate of income support supplement 45T. Standard categories of family situations 45U. Rate Calculators 45V. Application of income and assets test reductions for income tax purposes 45W. Rate Calculator determination in relation to children of a couple Subdivision B—Income Support Supplement Rate Calculator Where There Are No Dependent Children 45X. Rate of income support supplement (no dependent children) TABLE OF PROVISIONS—continued Section Subdivision C—Income Support Supplement Rate Calculator Where There Are Dependent Children 45Y. Rate of income support supplement (dependent child or children) Division 6—Bereavement payments Subdivision A—Bereavement payments (death of pensioner partner) 45Z. Eligibility for payments under this Subdivision 45ZA. Continued payment of partner's pension 45ZB. Lump sum payable in some circumstances 45ZC. Adjustment of person's income support supplement rate 45ZD. Effect of death of person entitled to payments under this Subdivision 45ZE. Method of calculating rate at which income support supplement would have been payable in certain circumstances 45ZF. Matters affecting payment of benefits under this Subdivision Subdivision B—Bereavement payments (death of dependent child) 45ZG. Bereavement payments on death of dependent child 45ZH. Continued payment of child-related amounts 45ZI. Lump sum payable in some circumstances Subdivision C—Bereavement payments (death of recipient) 45ZJ. Death of recipient 45. Creation of new Part 46. Appropriation PART 3—REPEAL OF THE SEAMEN'S WAR PENSIONS AND ALLOWANCES ACT 1940 AND SAVING AND TRANSITIONAL PROVISIONS RELATING TO THE REPEAL OF THAT ACT Division 1—Repeal of the Seamen's War Pensions and Allowances Act 1940 47. Repeal of Act Division 2—Saving and transitional provisions relating to the repeal of the Seamen's War Pensions and Allowances Act 1940 48. Interpretation 49. Correspondence of pensions, allowances and benefits 50. General aim of Division 51. VEA to apply on and after 1 July 1994 52. Saving of pensions, allowances, benefits etc. 53. Continuation of pensions payable without determinations 54. Instruments in force on 30 June 1994 55. Saving of claims for pensions, allowances, benefits etc. 56. Saving of requests for medical treatment and advance of loss of earnings allowance 57. Investigations of claims by Secretary 58. Unfinalised review of decisions—review by Veterans' Review Board 59. Unfinalised review of decisions—review by Commission 60. Unfinalised review of decisions—review by AAT 61. Review by Commission of its own initiative 62. Unfinalised review of decisions under the SWPA regulations 63. Directions by the Commission under section 6 of the SWPA 64. Bereavement payments 65. Request to pay pension to another person 66. Certain pensions not payable TABLE OF PROVISIONS—continued Section 67. Medical treatment for widows 68. Application of sections 52 and 54 affected by review begun after commencement PART 4—AMENDMENTS OF THE SOCIAL SECURITY ACT 1991 RELATING TO DIVISION 7 OF PART 2 69. Principal Act 70. Multiple entitlement exclusion 71. Multiple entitlement exclusion 72. Multiple entitlement exclusion 73. Multiple entitlement exclusion 74. Multiple entitlement exclusion SCHEDULE 1 FURTHER AMENDMENTS OF THE VETERANS' ENTITLEMENTS ACT 1986 RELATING TO DIVISION 3 OF PART 2 SCHEDULE 2 FURTHER AMENDMENTS OF THE VETERANS' ENTITLEMENTS ACT 1986 RELATING TO DIVISION 6 OF PART 2 SCHEDULE 3 FURTHER AMENDMENTS OF THE VETERANS' ENTITLEMENTS ACT 1986 RELATING TO DIVISION 7 OF PART 2 Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 No. 98 of 1994 An Act to amend the Veterans' Entitlements Act 1986, and for related purposes [Assented to 30 June 1994] The Parliament of Australia enacts: PART 1—PRELIMINARY Short title 1. This Act may be cited as the Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994. Commencement 2.(1) Subject to this section, this Act commences on the day on which it receives the Royal Assent. (2) Divisions 1 and 4 of Part 2 are taken to have commenced on 1 June 1994. (3) Division 3 of Part 2 and Part 3 commence on 1 July 1994. (4) Division 5 of Part 2 commences on 1 January 1995. (5) Divisions 6 and 7 of Part 2 commence on 20 March 1995. (6) Part 4 commences on 30 March 1995. Application 3. The amendments made by Division 4 of Part 2: (a) apply to claims for pension under section 14 of the Veterans' Entitlements Act 1986 that are made on or after 1 June 1994; and (b) apply to applications for an increase in the rate of a pension under section 15 of the Veterans' Entitlements Act 1986 that are made on or after 1 June 1994. PART 2—AMENDMENTS OF THE VETERANS' ENTITLEMENTS ACT 1986 Division 1—Principal Act Principal Act 4. In this Part, "Principal Act" means the Veterans' Entitlements Act 19861. Division 2—Determination of claims for pensions by reference to Statement of Principles Index of definitions 5. Section 5 of the Principal Act is amended by inserting the following entries in their respective appropriate alphabetical positions (determined on a letter-by-letter basis): "Chairperson 5AB(1) Convener 5AB(1) councillor 5AB(1) defence service 5Q(1A), 68 hazardous service 5Q(1A), 68(1), 120(7) member 5AB(1) member of a Peacekeeping Force 5Q(1A), 68(1) member of the Forces 5Q(1A), 68(1) peacekeeping service 5Q(1A), 68(1) registered medical practitioner 5AB(1) Review Council 5AB(1) sound medical-scientific evidence 5AB(2)". Insertion of section 6. After section 5A of the Principal Act the following section is inserted: Repatriation Medical Authority and Specialist Medical Review Council definitions "5AB.(1) In this Act, unless the contrary intention appears: 'Chairperson' means the Chairperson of the Repatriation Medical Authority; 'Convener' means the Convener of the Review Council; 'councillor' means the Convener or any other person holding office as a member of the Review Council; 'member' means the Chairperson or any other person holding office as a member of the Repatriation Medical Authority; 'registered medical practitioner' means a person registered or licensed as a medical practitioner under a law of a State or Territory but does not include a person so registered or licensed: (a) whose registration, or licence to practice, as a medical practitioner in any State or Territory has been suspended, or cancelled, following an inquiry relating to his or her conduct; and (b) who has not, after that suspension or cancellation, again been authorised to register or practise as a medical practitioner in that State or Territory; 'Review Council' means the Specialist Medical Review Council established by section 196V; 'sound medical-scientific evidence', in relation to a particular kind of injury, disease or death, has the meaning given by subsection (2). "(2) Information about a particular kind of injury, disease or death is taken to be sound medical-scientific evidence if: (a) the information: (i) is consistent with material relating to medical science that has been published in a medical or scientific publication and has been, in the opinion of the Repatriation Medical Authority, subjected to a peer review process; or (ii) in accordance with generally accepted medical practice, would serve as the basis for the diagnosis and management of a medical condition; and (b) in the case of information about how that kind of injury, disease or death may be caused—meets the applicable criteria for assessing causation currently applied in the field of epidemiology.". General definitions 7. Section 5Q of the Principal Act is amended by inserting after subsection (1) the following subsection: "(1A) In Parts VIII, XI and XIA, unless the contrary intention appears: 'defence service' has the same meaning as in Part IV; 'hazardous service', in relation to a member of the Forces, has the same meaning as in section 120. 'member of a Peacekeeping Force' has the same meaning as in Part IV; 'member of the Forces' has the same meaning as in Part IV; 'peacekeeping service' has the same meaning as in Part IV.". Standard of proof 8. Section 120 of the Principal Act is amended: (a) by inserting at the end of subsection (1) the following Note: "Note: This subsection is affected by section 120A."; (b) by inserting at the end of subsection (2) the following Notes: "Note 1: For 'member of a Peacekeeping Force', 'peacekeeping service', 'member of the Forces' and 'hazardous service' see subsection 5Q(1A). Note 2: This subsection is affected by section 120A."; (c) by inserting at the end of subsection (3) the following Note: "Note: This subsection is affected by section 120A."; (d) by inserting at the end of subsection (4) the following Note: "Note: This subsection is affected by section 120B."; (e) by omitting paragraph (7)(a). Insertion of sections 9. After section 120 of the Principal Act the following sections are inserted: Reasonableness of hypothesis to be assessed by reference to Statement of Principles "120A.(1) This section applies to any of the following claims made on or after 1 June 1994: (a) a claim under Part II that relates to the operational service rendered by a veteran; (b) a claim under Part IV that relates to: (i) the peacekeeping service rendered by a member of a Peacekeeping Force; or (ii) the hazardous service rendered by a member of the Forces. Note 1: Subsections 120(1), (2) and (3) are relevant to these claims. Note 2: For 'peacekeeping service', 'member of a Peacekeeping Force', 'hazardous service' and 'member of the Forces' see subsection 5Q(1A). "(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority: (a) has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or (b) has declared that it does not propose to make such a Statement of Principles. "(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force: (a) a Statement of Principles determined under subsection 196B(2) or (11); or (b) a determination of the Commission under subsection 180A(2); that upholds the hypothesis. Note: See subsection (4) about the application of this subsection. "(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of: (a) the kind of injury suffered by the person; or (b) the kind of disease contracted by the person; or (c) the kind of death met by the person; as the case may be. Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles "120B.(1) This section applies to any of the following claims made on or after 1 June 1994: (a) a claim under Part II that relates to the eligible war service (other than operational service) rendered by a veteran; (b) a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces. Note 1: Subsection 120(4) is relevant to these claims. Note 2: For 'hazardous service' and 'member of the Forces' see subsection 5Q(1A). "(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority: (a) has determined a Statement of Principles under subsection 196B(3) in respect of that kind of injury, disease or death; or (b) has declared that it does not propose to make such a Statement of Principles. "(3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if: (a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and (b) there is in force: (i) a Statement of Principles determined under subsection 196B(3) or (12); or (ii) a determination of the Commission under subsection 180A(3); that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service. "(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(3), nor declared that it does not propose to make such a Statement of Principles, in respect of: (a) the kind of injury suffered by the person; or (b) the kind of disease contracted by the person; or (c) the kind of death met by the person; as the case may be.". Insertion of section 10. After section 180 of the Principal Act the following section is inserted: Determination by Commission "180A.(1) If: (a) the Repatriation Medical Authority has determined, or has declared that it does not propose to make or amend, a Statement of Principles in respect of a particular kind of injury, disease or death (see section 196B); and (b) the Commission is of the opinion that, because the Statement of Principles is in force, or because of the decision by the Authority not to make or amend the Statement of Principles: (i) claims for pensions in respect of incapacity from injury or disease of that kind made by veterans, members of the Forces, or members of a Peacekeeping Force, of a particular class; or (ii) claims for pensions made by dependants of those veterans or members in respect of the death of such a veteran or member; cannot succeed; and (c) the Commission is also of the opinion that, in all the circumstances of the case, those veterans, members or their dependants should receive a pension; the Commission may, in its discretion, make a determination in respect of that kind of injury, disease or death under subsection (2) or (3), or determinations under both subsections (as the case requires). Note: For 'member of the Forces' and 'member of a Peacekeeping Force' see subsection 5Q(1A). "(2) A determination under this subsection in respect of a particular kind of injury, disease or death must be in writing and must: (a) state that it has effect only in relation to the class of veterans, members of the Forces, or members of a Peacekeeping Force referred to in subparagraph (1)(b)(i); and (b) state that it applies only in respect of claims relating to: (i) operational service rendered by a veteran; or (ii) peacekeeping service rendered by a member of a Peacekeeping Force; or (iii) hazardous service rendered by a member of the Forces; and (c) set out: (i) the factors that must as a minimum exist; and (ii) which of those factors must be related to service rendered by a person; before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service. Note 1: For 'peacekeeping service' and 'hazardous service' see subsection 5Q(1A). Note 2: For 'factor related to service' see subsection (7). "(3) A determination under this subsection in respect of a particular kind of injury, disease or death must be in writing and must: (a) state that it has effect only in relation to the class of veterans or members of the Forces referred to in subparagraph (1)(b)(i); and (b) state that it applies only in respect of claims relating to: (i) eligible war service (other than operational service) rendered by a veteran; or (ii) defence service (other than hazardous service) rendered by a member of the Forces; and (c) set out: (i) the factors that must exist; and (ii) which of those factors must be related to service rendered by a person; before it can be said, on the balance of probabilities, that an injury, disease or death of that kind is connected with the circumstances of that service. Note 1: For 'defence service' and 'hazardous service' see subsection 5Q(1A). Note 2: For 'factor related to service' see subsection (7). "(4) A determination under subsection (2) or (3) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901. "(5) While there is in force under subsection (2) a determination in respect of a particular kind of injury, disease or death, any Statement of Principles in force under subsection 196B(2) in respect of that kind of injury, disease or death does not apply in respect of any veteran, member of the Forces, member of any Peacekeeping Force or dependant in relation to whom the determination has effect. "(6) While there is in force under subsection (3) a determination in respect of a particular kind of injury, disease or death, any Statement of Principles in force under subsection 196B(3) in respect of that kind of injury, disease or death does not apply in respect of any veteran or member of the Forces or dependant in relation to whom the determination has effect. "(7) A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if: (a) it resulted from an occurrence that happened while the person was rendering that service; or (b) it arose out of, or was attributable to, that service; or (c) it resulted from an accident that occurred while the person was travelling, while rendering that service but otherwise than in the course of duty, on a journey: (i) to a place for the purpose of performing duty; or (ii) away from a place of duty upon having ceased to perform duty; or (d) it was contributed to in a material degree by, or was aggravated by, that service; or (e) in the case of a factor causing, or contributing to, an injury—it resulted from an accident that would not have occurred: (i) but for the rendering of that service by the person; or (ii) but for changes in the person's environment consequent upon his or her having rendered that service; or (f) in the case of a factor causing, or contributing to, a disease—it would not have occurred: (i) but for the rendering of that service by the person; or (ii) but for changes in the person's environment consequent upon his or her having rendered that service; or (g) in the case of a factor causing, or contributing to, the death of a person—it was due to an accident that would not have occurred, or to a disease that would not have been contracted: (i) but for the rendering of that service by the person; or (ii) but for changes in the person's environment consequent upon his or her having rendered that service.". Insertion of Parts 11. After Part XI of the Principal Act the following Parts are inserted: "PART XIA—THE REPATRIATION MEDICAL AUTHORITY "Division 1—Establishment, functions and powers Establishment of Authority "196A.(1) A Repatriation Medical Authority is established. "(2) The Repatriation Medical Authority: (a) is a body corporate with perpetual succession; and (b) has a common seal; and (c) may sue and be sued. "(3) All courts, judges and persons acting judicially must: (a) take judicial notice of the imprint of the seal of the Authority appearing on a document; and (b) presume that the document was duly sealed. "(4) Debts incurred by the Authority in the performance of its functions are, for all purposes, taken to be debts incurred by the Commonwealth. Functions of Authority "196B.(1) This section sets out the functions of the Repatriation Medical Authority. Determination of Statement of Principles "(2) If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to: (a) operational service rendered by veterans; or (b) peacekeeping service rendered by members of Peacekeeping Forces; or (c) hazardous service rendered by members of the Forces; the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out: (d) the factors that must as a minimum exist; and (e) which of those factors must be related to service rendered by a person; before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service. Note 1: For 'sound medical-scientific evidence' see subsection 5AB(2). Note 2: For 'peacekeeping service', 'member of a Peacekeeping Force', 'hazardous service' and 'member of the Forces' see subsection 5Q(1A). Note 3: For 'factor related to service' see subsection (14). "(3) If the Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that a particular kind of injury, disease or death can be related to: (a) eligible war service (other than operational service) rendered by veterans; or (b) defence service (other than hazardous service) rendered by members of the Forces; the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out: (c) the factors that must exist; and (d) which of those factors must be related to service rendered by a person; before it can be said that, on the balance of probabilities, an injury, disease or death of that kind is connected with the circumstances of that service. Note 1: For 'sound medical-scientific evidence' see subsection 5AB(2). Note 2: For 'defence service' and 'hazardous service' see subsection 5Q(1A). Note 3: For 'factor related to service' see subsection (14). Investigation "(4) If the Authority: (a) receives a request under section 196E to carry out an investigation in respect of a particular kind of injury, disease or death; or (b) of its own initiative, decides that a particular kind of injury, disease or death ought to be investigated for the purposes of this Act to find out whether a Statement of Principles may be determined in respect of it; the Authority must carry out an investigation to obtain information that would enable the Authority to establish: (c) how the injury may be suffered, the disease may be contracted or the death may occur; and (d) the extent (if any) to which the injury, disease or death may be war-caused or defence-caused. Note 1: For 'war-caused' see sections 8 and 9. Note 2: For 'defence-caused' see section 69. "(5) If, after carrying out the investigation, the Authority is of the view that there is sound medical-scientific evidence on which it can rely to determine a Statement of Principles under subsection (2) or (3), in respect of that kind of injury, disease or death, the Authority must do so as soon as practicable. Note: This subsection does not mean that the Authority must carry out an investigation before it can determine a Statement of Principles under subsection (2) or (3). "(6) If, after carrying out the investigation, the Authority is of the view: (a) that there is no sound medical-scientific evidence on which it can rely to determine a Statement of Principles under subsection (2) or (3) in respect of that kind of injury, disease or death; or (b) that the sound medical-scientific evidence on which it can rely is insufficient to allow it to do so; the Authority must make a declaration in writing: (c) stating that it does not propose to make a Statement of Principles; and (d) giving the reasons for its decision. Subsequent investigation and review of determinations concerning Statement of Principles "(7) If the Authority: (a) is asked under section 196E to review: (i) the contents of a Statement of Principles; or (ii) a decision of the Authority not to make a Statement of Principles in respect of a particular kind of injury, disease or death; or (b) thinks that there are grounds for such a review; or (c) is directed by the Review Council under subsection 196W(7) to carry out an investigation in respect of a particular kind of injury, disease or death; the Authority must, subject to subsection 196C(4) in a case where paragraph (a) applies, carry out an investigation to find out if there is new information available about: (d) how the injury may be suffered, the disease may be contracted or the death may occur; or (e) the extent to which the disease, injury or death may be war-caused or defence-caused. "(8) If, after carrying out the investigation, the Authority is of the view that there is a new body of sound medical-scientific evidence available that, together with the sound medical-scientific evidence previously considered by the Authority, justifies the making of a Statement of Principles, or an amendment of the Statement of Principles already determined, in respect of that kind of injury, disease or death, the Authority must: (a) determine a Statement of Principles in respect of that kind of injury, disease or death under subsection (2) or (3); or (b) make a determination amending the Statement of Principles determined under subsection (2) or (3) in respect of that kind of injury, disease or death; or (c) revoke the Statement of Principles determined under subsection (2) or (3), and determine a new Statement of Principles under subsection (2) or (3) in respect of that kind of injury, disease or death; as the case requires. Note: For 'sound medical-scientific evidence' see subsection 5AB(2). "(9) If, after carrying out the investigation, the Authority is of the view: (a) that there is no new sound medical-scientific evidence about that kind of injury, disease or death; or (b) that the new sound medical-scientific evidence available is not sufficient to justify the making of a Statement of Principles, or an amendment of the Statement of Principles already determined in respect of that kind of injury, disease or death; the Authority must make a declaration in writing: (c) stating that it does not propose to make a Statement of Principles, or amend the Statement of Principles already determined (as the case may be); and (d) giving the reasons for its decision. "(10) If the Review Council has, by a decision notified in the Gazette, directed the Authority to amend a Statement of Principles in respect of a particular kind of injury, disease or death, the Authority must make a determination amending the Statement of Principles determined in respect of that kind of injury, disease or death in accordance with the directions of the Council. "(11) If, after reviewing a decision of the Authority not to determine a Statement of Principles under subsection 196B(2) in respect of a particular kind of injury, disease or death, the Review Council has, by a decision notified in the Gazette, directed the Authority to make such a Statement of Principles, the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out, in accordance with the directions of the Council: (a) the factors that must as a minimum exist; and (b) which of those factors must be related to service rendered by a person; before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service. Note: For 'factor related to service' see subsection (14). "(12) If, after reviewing a decision of the Authority not to determine a Statement of Principles under subsection 196B(3) in respect of a particular kind of injury, disease or death, the Review Council has, by a decision notified in the Gazette, directed the Authority to make such a Statement of Principles, the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out, in accordance with the directions of the Council: (a) the factors that must exist; and (b) which of those factors must be related to service rendered by a person; before it can be said that, on the balance of probabilities, an injury, disease or death of that kind is connected with the circumstances of that service. Note: For 'factor related to service' see subsection (14). "(13) A determination under subsection (10) amending a Statement of Principles, or a Statement of Principles under subsection (11) or (12) is to be taken to have had effect from the day on which the decision of the Review Council was notified in the Gazette. The determination or Statement of Principles must specify that day. "(14) A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if: (a) it resulted from an occurrence that happened while the person was rendering that service; or (b) it arose out of, or was attributable to, that service; or (c) it resulted from an accident that occurred while the person was travelling, while rendering that service but otherwise than in the course of duty, on a journey: (i) to a place for the purpose of performing duty; or (ii) away from a place of duty upon having ceased to perform duty; or (d) it was contributed to in a material degree by, or was aggravated by, that service; or (e) in the case of a factor causing, or contributing to, an injury—it resulted from an accident that would not have occurred: (i) but for the rendering of that service by the person; or (ii) but for changes in the person's environment consequent upon his or her having rendered that service; or (f) in the case of a factor causing, or contributing to, a disease—it would not have occurred: (i) but for the rendering of that service by the person; or (ii) but for changes in the person's environment consequent upon his or her having rendered that service; or (g) in the case of a factor causing, or contributing to, the death of a person—it was due to an accident that would not have occurred, or to a disease that would not have been contracted: (i) but for the rendering of that service by the person; or (ii) but for changes in the person's environment consequent upon his or her having rendered that service. Powers of Authority with respect to investigations "196C.(1) The Repatriation Medical Authority may not, for the purposes of an investigation, carry out any new research work (including any test or experiment). "(2) The Authority may, for the purposes of an investigation, ask the Secretary: (a) to forward to the Authority any information: (i) in the possession of the Secretary; or (ii) that the Secretary may obtain; relating to the kind of injury, disease or death under investigation; or (b) to carry out research (including any test or experiment) to obtain, confirm, or disprove, specific information about that kind of injury, disease or death and forward a report to the Authority. "(3) In forming any view during the investigation, the Authority: (a) may rely only on sound medical-scientific evidence: (i) that has been submitted to it; or (ii) that it has obtained on its own initiative or from the Secretary (under subsection (2)) or from a consultant; and (b) must consider and evaluate all the evidence so made available to it. "(4) If: (a) the Authority has carried out the investigation in respect of a particular kind of injury, disease or death; and (b) within 12 months after the Authority has, at the end of the investigation: (i) determined or amended a Statement of Principles; or (ii) declared that it does not propose to make or amend a Statement of Principles; a person or organisation asks the Authority under section 196E to review: (iii) the contents of the Statement of Principles; or (iv) its decision not to make a Statement of Principles; and (c) the Authority thinks that there are no grounds for such a review; the Authority may decide not to carry out an investigation in respect of that kind of injury, disease or death. The Authority must then inform the person or organisation in writing of its decision, stating the reasons for it. Disallowable instrument "196D. A determination of the Repatriation Medical Authority under section 196B is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901. Request for an investigation, review etc. "196E.(1) Any of the following: (a) the Commission; (b) a person eligible to make a claim for a pension under Part II or IV; (c) an organisation representing veterans, Australian mariners, members of the Forces, members of Peacekeeping Forces or their dependants; may ask the Repatriation Medical Authority: (d) to carry out an investigation under subsection 196B(4) in respect of a particular kind of injury, disease or death; or (e) to review a decision of the Authority under subsection 196B(6) not to make a Statement of Principles in respect of a particular kind of injury, disease or death; or (f) to review the contents of a Statement of Principles in force under this Part. "(2) The request must: (a) be in a form approved by the Authority; and (b) must be lodged at an office of the Department. "(3) The Secretary must send the request to the Repatriation Medical Authority within 28 days. Submissions to the Authority "196F.(1) If the Repatriation Medical Authority is carrying out an investigation under subsection 196B(4) or (7), any person referred to in paragraph 196E(1)(a) or (b) or organisation referred to in paragraph 196E(1)(c) may make a submission in writing to the Authority on any matter (other than a legal matter) relevant to the investigation. "(2) A person having expertise in a field relevant to the investigation may make a submission in writing to the Authority on any matter (other than a legal matter) within his or her expertise that is relevant to the investigation. "(3) If an individual, the Commission or an organisation has made a written submission, the individual or his or her representative, or a representative of the Commission or of the organisation may, subject to subsection (4), appear before the Authority to make an oral submission complementing the written submission. The oral submission may not cover any legal matter. "(4) A person or organisation may not be represented before the Authority by a legal practitioner. Notice of investigation "196G.(1) As soon as practicable after the Repatriation Medical Authority: (a) has been asked under section 196E to carry out: (i) an investigation; or (ii) a review of a decision of the Authority not to make a Statement of Principles; or (iii) a review of the contents of a Statement of Principles; regarding a particular kind of injury, disease or death; or (b) has decided on its own initiative to carry out such an investigation or such a review; the Authority must publish in the Gazette a notice: (c) stating that the Authority intends to carry out an investigation in respect of that kind of injury, disease or death; and (d) inviting persons or organisations authorised under subsection 196F(1) to do so to make written submissions to the Authority. "(2) A notice is to specify: (a) the date on which the Authority will hold its first meeting for the purposes of the investigation; and (b) the date by which all submissions must have been received by the Authority. "(3) A notice must be published in the Gazette at least 28 days before the date of the first meeting of the Authority. "(4) A notice is not invalid merely because it fails to comply with subsection (2). Copyright in submissions "196H.(1) The Repatriation Medical Authority is not the owner of any copyright subsisting in material ('submitted material') contained in a submission made to the Authority for the purposes of an investigation under section 196B. "(2) In spite of the Copyright Act 1968, the Authority does not infringe any copyright subsisting in submitted material if, in performing its functions or exercising its powers, the Authority does an act comprised in the copyright without the licence of the owner of the copyright. Access to information "1961.(1) Subject to subsection (2), a person referred to in paragraph 196E(1)(a) or (b), or an organisation referred to in paragraph 196E(1)(c), is entitled, on request made in writing to the Repatriation Medical Authority, to have reasonable access to any document containing information considered by the Authority for the purposes of an investigation. "(2) The Authority may not disclose any personal information about a particular person if the information is likely to reveal the identity of that person. Notice of decision not to make etc. Statement of Principles "196J.(1) When the Repatriation Medical Authority decides not to make, or not to review, a Statement of Principles, it must, within 14 days, notify the Commission in writing of its decision. "(2) If the decision is made following a request from a person or organisation under section 196E, the Authority must also notify the person or organisation in writing of its decision. Repatriation Medical Authority to send information to Review Council "196K. The Repatriation Medical Authority must, within 28 days after being notified that the Review Council has been asked to review: (a) a Statement of Principles; or (b) its decision not to determine a Statement of Principles in respect of a particular kind of injury, disease or death; or (c) its decision under subsection 196C(4) not to carry out an investigation in respect of a particular kind of injury, disease or death; send to the Council a copy of all the information that was available to it when it: (d) determined, amended, or last amended, the Statement of Principles; or (e) decided, or last decided, not to determine a Statement of Principles in respect of that kind of injury, disease or death; or (f) decided not to carry out the investigation. "Division 2—Constitution and meetings Membership "196L.(1) The Repatriation Medical Authority consists of a Chairperson and 4 other members. "(2) All members are to be appointed on a part-time basis by the Minister. "(3) One of the members must be a person having at least 5 years experience in the field of epidemiology. Qualifications "196M. The Minister is to appoint a person as Chairperson or as a member only if the person is a registered medical practitioner, or a medical scientist, with at least 10 years experience. Tenure of office "196N.(1) Subject to this Act, a person appointed as Chairperson or as a member holds office for the period specified in the instrument of appointment. "(2) A person may not hold office for a period of more than 5 years but is eligible for reappointment. Resignation "196O. A member may resign from office by written notice given to the Minister. Termination of appointment "196P. The Minister may terminate the appointment of a person as Chairperson or as a member: (a) for misbehaviour or for physical or mental incapacity; or (b) if he or she becomes bankrupt, applies to take the benefit of a law for the relief of bankruptcy or insolvent debtors, compounds with his or her creditors or assigns remuneration or property for their benefit. Acting Chairperson "196Q. The Minister may appoint a member to act as Chairperson: (a) during a vacancy in the office of Chairperson, whether or not an appointment has previously been made to the office; or (b) during any period, or during all periods, when the Chairperson is absent from office. Meetings "196R.(1) The Chairperson may convene meetings of the Repatriation Medical Authority as he or she considers necessary for the performance of its functions. The Chairperson may delegate this power to another member or to a member of the staff of the Authority. "(2) The Chairperson presides at all meetings of the Authority. "(3) At a meeting, 3 members constitute a quorum. "(4) A question arising at a meeting is to be determined by a majority of votes of the members present and voting. The Chairperson has only a deliberative vote. "(5) The Authority must keep minutes of the proceedings at each meeting. "(6) Subject to this section, the Authority determines the procedures for convening its meetings and for conducting its business. Remuneration and allowances "196S.(1) A member shall be paid such remuneration as is determined by the Remuneration Tribunal but, if no determination of that remuneration by the Tribunal is in operation, a member shall be paid such remuneration as the Minister determines in writing. "(2) A member shall be paid such allowances as the Minister determines in writing. "(3) This section has effect subject to the Remuneration Tribunal Act 1973. "Division 3—Staff and Consultants Staff "196T. The staff necessary to assist the Repatriation Medical Authority consists of persons appointed or employed under the Public Service Act 1922 and made available to the Authority by the Secretary. Consultants "196U.(1) The Repatriation Medical Authority may, under written agreement, engage consultants to provide expert advice to the Authority about any disease, injury or death that the Authority is investigating. "(2) The Authority may not engage a consultant without the approval of the Minister. "PART XIB—THE SPECIALIST MEDICAL REVIEW COUNCIL "Division 1—Establishment and functions Establishment of Council "196V.(1) A Specialist Medical Review Council is established."(2) The Review Council: (a) is a body corporate with perpetual succession; and (b) has a common seal; and (c) may sue and be sued. "(3) All courts, judges and persons acting judicially must: (a) take judicial notice of the imprint of the seal of the Review Council appearing on a document; and (b) presume that the document was duly sealed. "(4) Debts incurred by the Review Council in the performance of its functions are, for all purposes, taken to be debts incurred by the Commonwealth. Functions of Review Council "196W.(1) This section sets out the functions of the Review Council. "(2) If the Council is asked under section 196Y to review: (a) the contents of a Statement of Principles in respect of a particular kind of injury, disease or death; or (b) a decision of the Repatriation Medical Authority not to determine a Statement of Principles under subsection 196B(2), or a Statement of Principles under subsection 196B(3), in respect of a particular kind of injury, disease or death; subject to subsection (3), the Council must, for that purpose, carry out a review of all the information that was available to the Authority when it: (c) determined, amended, or last amended, the Statement of Principles; or (d) decided, or last decided, not to determine a Statement of Principles; in respect of that kind of injury, disease or death. "(3) If the Council has been asked to review the contents of a Statement of Principles, the Council may carry out a review under subsection (2) only if: (a) the period within which the Statement of Principles may be disallowed under section 48 of the Acts Interpretation Act 1901 has ended; and (b) the Statement of Principles has not been disallowed. "(4) If after carrying out the review, the Council is of the view that there is sound medical-scientific evidence on which the Authority could have relied: (a) to amend the Statement of Principles in force in respect of that kind of injury, disease or death; or (b) to determine a Statement of Principles under subsection 196B(2), or a Statement of Principles under subsection 196B(3), in respect of that kind of injury, disease or death; the Council must make a declaration in writing stating its views, setting out the evidence in support and: (c) directing the Authority to amend the Statement of Principles, or determine a Statement of Principles (as the case may be), in accordance with the directions given by the Council; or (d) remitting the matter for reconsideration in accordance with any directions or recommendations of the Council. "(5) If, after carrying out the review, the Council is of the view: (a) that there is no sound medical-scientific evidence that justifies the making of a Statement of Principles, or an amendment of the Statement of Principles in force, in respect of that kind of injury, disease or death; or (b) that the sound medical-scientific evidence available to the Authority is insufficient to justify the making of a Statement of Principles, or an amendment of the Statement of Principles, in respect of that kind of injury, disease or death; the Council must make a declaration in writing to that effect giving the reasons for its decision. The Council may include in the declaration any recommendation that it considers fit to make about any future investigation that the Authority may carry out in respect of that kind of injury, disease or death. "(6) If the Council is asked under section 196Z to review a decision of the Repatriation Medical Authority under subsection 196C(4) not to carry out an investigation in respect of a particular kind of injury, disease or death, the Council must consider: (a) the reasons given by the Authority for making the decision; and (b) the information on which it relied in making that decision; and (c) the grounds on which the request for the review was made and any submission made in support of those grounds. "(7) If, after considering the matters referred to in paragraphs (6)(a), (b) and (c), the Council is of the view that: (a) there appears to be a new body of sound medical-scientific evidence in respect of that kind of injury, disease or death that has not been previously considered by the Authority; and (b) that new body of evidence, together with the sound medical-scientific evidence available to the Authority, could justify the making of a Statement of Principles, or an amendment of the Statement of Principles already determined, in respect of that kind of injury, disease or death; the Council must make a declaration in writing to that effect giving the reasons for its decision and directing the Authority to carry out an investigation under subsection 196B(7) in respect of that kind of injury, disease or death. The Council may include in the declaration any recommendation or direction that the Council considers fit to make about the carrying out of the investigation. "(8) If, after considering the matters referred to in paragraphs (6)(a), (b) and (c), the Council is not of the view referred to in subsection (7) in respect of that kind of injury, disease or death, the Council must make a declaration in writing: (a) affirming the decision of the Authority not to carry out the investigation; and (b) giving the reasons for its decision. The Council may include in the declaration any recommendation that it considers fit to make about any future investigation that the Authority may carry out in respect of that kind of injury, disease or death. Notification of decision of Review Council to be notified in Gazette "196X.(1) A decision of the Review Council under section 196W must be notified in the Gazette. "(2) The Council must also give a copy of the decision to: (a) the person or organisation that asked for the review; and (b) the Commission (if it is not the person referred to in (a)); and (c) the Repatriation Medical Authority. Request for review of contents of Statement of Principles etc. "196Y.(1) Subject to subsection (2), any of the following: (a) the Commission; (b) a person eligible to make a claim for a pension under Part II or IV; (c) an organisation representing veterans, Australian mariners, members of the Forces, members of Peacekeeping Forces or their dependants; may ask the Review Council to review: (d) the contents of a Statement of Principles in force under Part XIA; or (e) a decision of the Repatriation Medical Authority not to make a Statement of Principles in respect of a particular kind of injury, disease or death. "(2) The request must be made: (a) in the case of a request to review the contents of a Statement of Principles—within 3 months after the Statement of Principles was made, amended or last amended; or (b) if paragraph (a) does not apply—within 3 months after the decision of the Authority. "(3) A request must: (a) be in a form approved by the Review Council; and (b) state the grounds on which the review is sought; and (c) be lodged at an office of the Department. "(4) The Secretary must send the request to the Review Council, and notify the Repatriation Medical Authority of the request, within 28 days. Request for review of decision of Repatriation Medical Authority not to carry out an investigation "196Z.(1) If: (a) a person or organisation asks the Repatriation Medical Authority under section 196E to review: (i) the contents of a Statement of Principles in respect of a particular kind of injury, disease or death; or (ii) its decision not to make a Statement of Principles in respect of a particular kind of injury, disease or death; and (b) the Authority refuses under subsection 196C(4) to carry out an investigation in respect of that kind of injury, disease or death; the person or organisation may, within 3 months, ask the Review Council to review the decision of the Authority not to carry out the investigation. "(2) The request must: (a) be in a form approved by the Review Council; and (b) state the grounds on which the review is sought; and (c) be lodged at an office of the Department, together with any submission that the person or organisation wishes to submit in support of those grounds. "(3) The Secretary must send the request and any accompanying material to the Review Council, and notify the Repatriation Medical Authority of the request, within 28 days. Submissions to Review Council "196ZA.(1) If the Review Council is carrying out a review under subsection 196W(2), any person referred to in paragraph 196Y(1)(a) or (b), or an organisation referred to in paragraph 196Y(1)(c), may make a submission in writing to the Council about any information that was available to the Repatriation Medical Authority and is relevant to the review ('relevant information'). "(2) A person having expertise in a field relevant to the investigation may make a submission in writing to the Review Council on any relevant information pertaining to that field. "(3) If an individual, the Commission or an organisation has made a written submission, the individual or his or her representative, or a representative of the Commission or of the organisation may, subject to subsection (5), appear before the Review Council to make an oral submission complementing the written submission. "(4) If the Review Council is carrying out a review under subsection 196W(6) at the request of an individual, the Commission or an organisation, the individual or his or her representative, or a representative of the Commission or of the organisation may, subject to subsection (5), appear before the Review Council to make an oral submission complementing the written submission (if any) lodged under paragraph 196Z(2)(c). "(5) A person or organisation may not be represented before the Review Council by a legal practitioner. "(6) In this section, a reference to a submission does not include a submission on a legal matter. Notice of investigation "196ZB.(1) As soon as practicable after the Review Council has been asked under section 196Y to review: (a) a decision of the Repatriation Medical Authority to make or not to make a Statement of Principles; or (b) a review of the contents of a Statement of Principles in respect of a particular kind of injury, disease or death; the Council must publish in the Gazette a notice: (c) stating that the Council intends to carry out a review of the information available to the Authority about that kind of injury, disease or death; and (d) inviting persons or organisations authorised under subsection 196ZA(1) to do so to make written submissions to the Council. "(2) A notice is to specify: (a) the date on which the Council will hold its first meeting for the purposes of the review; and (b) the date by which all submissions must have been received by the Council. "(3) A notice must be published in the Gazette at least 28 days before the date of the first meeting of the Council. "(4) A notice is not invalid merely because it fails to comply with subsection (2). Copyright in submissions "196ZC.(1) The Review Council is not the owner of any copyright subsisting in material ('submitted material') contained in a submission made to the Council for the purposes of an investigation under section 196B. "(2) In spite of the Copyright Act 1968, the Review Council does not infringe any copyright subsisting in submitted material if, in performing its functions or exercising its powers, the Council does an act comprised in the copyright without the licence of the owner of the copyright. Access to information "196ZD.(1) Subject to subsection (2), a person referred to in paragraph 196Y(1)(a) or (b), or an organisation referred to in paragraph 196Y(1)(c), is entitled, on request made in writing to the Review Council, to have reasonable access to any document containing information considered by the Review Council for the purposes of an investigation. "(2) The Review Council may not disclose any personal information about a particular person if the information is likely to reveal the identity of that person. "Division 2—Constitution and meetings Membership "196ZE.(1) The Review Council consists of such number of members as the Minister determines from time to time to be necessary for the proper exercise of the functions of the Council. "(2) The councillors are to be appointed on a part-time basis by the Minister as provided in this section. "(3) When appointing councillors, the Minister must have regard to the branches of medical science expertise in which would be necessary for deciding matters referred to the Review Council for review. In respect of each of those branches, the Minister must ensure that, at any time, the number (not less than 2) of councillors having experience in that branch is sufficient for the proper exercise of the functions of the Council. "(4) Each person to be appointed councillor is to be selected from a list, or lists, of nominees submitted by such colleges or similar bodies of medical practitioners or medical scientists (for example, the Royal Australasian College of Physicians) as were asked by the Minister to submit nominees for the purposes of the appointment. "(5) The Minister must appoint one of the councillors to be the Convener. Qualifications "196ZF. The Minister is to appoint a person to be a councillor only if the person is a registered medical practitioner, or a medical scientist, with at least 10 years experience. Tenure of office "196ZG.(1) Subject to this Act, a person appointed as Convener or as a councillor holds office for the period specified in the instrument of appointment. "(2) A person may not hold office for a period of more than 5 years but is eligible for reappointment. Resignation "196ZH. A councillor may resign from office by written notice given to the Minister. Termination of appointment "196ZI. The Minister may terminate the appointment of a person as councillor: (a) for misbehaviour or for physical or mental incapacity; or (b) if he or she becomes bankrupt, applies to take the benefit of a law for the relief of bankruptcy or insolvent debtors, compounds with his or her creditors or assigns remuneration or property for their benefit. Acting Convener "196ZJ. The Minister may