Background
As a part of the 2021-2022 Budget, the Government announced the ADF Firefighters Scheme (the Scheme). This Scheme benefits ADF firefighters who served at Royal Australian Air Force (RAAF) Base Point Cook between 1 January 1957 and 31 December 1986 (inclusive). These firefighters were potentially exposed to a wide range of hazardous substances at a time when personal protective equipment was not of the standard that is available today.
The ADF Firefighter Scheme creates a reverse onus of proof in relation to establishing a service connection for liability for 31 prescribed health conditions, including all cancers (see ‘Prescribed Conditions’, below). These conditions are listed in an instrument created under subsection 7(1)(b) of the DRCA, the Safety, Rehabilitation and Compensation (Defence-related Claims)(Specified Diseases and Employment) Amendment Instrument 2021.
Similar to DRCA subsections 7(8) and 7(9), the instrument under subsection 7(1)(b) establishes that participation in firefighter training at Point Cook between the prescribed dates is taken to have contributed to a significant degree to the contraction of the listed disease for the purposes of the Act, unless the contrary can be established. Delegates should not actively seek to disprove a link to service.
An additional instrument, the Veterans’ Entitlements (Point Cook Firefighters) Determination 2021, made under s88A(1)(d) of the VEA, allows Scheme-eligible veterans to access:
- free screening for colorectal cancer and melanoma, for early detection and prevention; and
- individually tailored health and lifestyle advice through the Heart Health Program.
These may be accessed by anyone with eligibility under the Scheme, even if they don’t have one of the 31 prescribed conditions.
Applications
ADF Firefighter Scheme applications can be made on the D9387 application form. However, applications made in other formats may also be accepted as valid under the Scheme.
Eligibility
Scheme eligibility requires three components of ADF service to be verified:
- the applicant was an ADF firefighter, trainee, instructor or other ADF employee; and
- the applicant took part in firefighting training at RAAF Base Point Cook Fire Training School; and
- the applicant participated in training between 1 January 1957 and 31 December 1986 (inclusive).
An applicant is not eligible under the scheme if at least one service component cannot be verified through service records, independent evidence or pooled evidence. Pooled evidence is the accumulation of evidence gathered over time from other application investigations that establish facts at the group level for scheme participants.
Eligibility for deceased participants
The ADF Firefighter Scheme is available to the families and deceased estates of eligible veterans who die prior to submitting an application under the Scheme, where the death occurred on or after the announcement of the Scheme on 11 May 2021.
Reviews of Scheme eligibility
A veteran who has previously (unsuccessfully) applied for eligibility under the scheme can re-test their eligibility at any time. A new application form is not required when re-testing eligibility, however, new evidence must be presented.
Reviews of Procedural Fairness for Scheme eligibility
There are no legislatively prescribed pathways to review a decision under the scheme.
However, if a veteran is not satisfied with how their scheme decision was made, they may request a review of the decision by a different decision maker, even if no new evidence is available.
Dual eligibility – ADF Firefighter Scheme and F-111 Deseal Reseal Scheme
It is possible for a veteran to have eligibility under both the F-111 Deseal/Reseal Scheme and the ADF Firefighters Scheme. The two schemes cover different time periods and service locations.
Both schemes include the same prescribed conditions, as well as screening for melanoma and colorectal cancer. However, screening under the ADF Firefighter Scheme is provided through DVA treatment cards, with no up-front cost to the veteran. Payment for screening under the F-111 Deseal Reseal Scheme is done by reimbursement.
The ADF Firefighter Scheme also provides access to 12 months of individually tailored health and lifestyle advice under DVA’s Heart Health Program.
Evidence of Point Cook service
The ADF Firefighter Scheme recognises it can be difficult to obtain evidence to establish a service link to a claimed condition for a variety of reasons. These reasons stem from the historical nature of this service including that there may be no knowledge by the claimant of what chemicals they handled and/or records may be incomplete or may not exist.
Where insufficient formal records are available, delegates can consider supplementary evidence, including (but not limited to) training certificates, photographs, and personal accounts, including statutory declarations.
Personal accounts/statutory declarations
In the absence of contradictory evidence, a credible personal account or statutory declaration may be accepted as a contribution of evidence to the overall service evidence considered for the scheme application. These are to be examined in the context of all the available evidence.
A statutory declaration is a written statement declared to be true in the presence of an authorised witness. Where a person provides evidence in support of their claim in the form of a personal account, the account may be provided by way of a Commonwealth statutory declaration.
A Commonwealth statutory declaration can be found on the Attorney General's website.
The personal account/statutory declaration must be provided by the person who is testing their scheme eligibility unless the person is medically or legally incapable of providing a personal account, in which case the personal account must be provided on behalf of the person by the person’s authorised representative.
A personal account/statutory declaration should attempt to address the missing evidence and should fit with the other evidence available to the application.
Scheme eligibility cannot be determined on the basis of personal accounts/statutory declarations only. Some independent evidence verifying at least one of the components of service eligibility must be available. If not, then the applicant is ineligible until such time as new evidence or new pooled evidence supports a request for review.
Standard of Proof
The standard of proof that applies to decisions regarding eligibility for the ADF Firefighter scheme is the 'balance of probability' or 'reasonable satisfaction' test. Therefore, to accept an application for eligibility for the ADF Firefighter Scheme, a decision maker must be reasonably satisfied that the person undertook the relevant service for an application to be accepted.
The concept of 'reasonable satisfaction' is well established within the legal framework. The decision maker must ask, having regard for all of the material and weighing up the evidence, whether it is more likely than not that the person undertook the relevant ADF service? If so, the application for Scheme eligibility must be accepted; if not, the application must be rejected.
The content of personal accounts/statutory declarations will be subject to a test of plausibility in the same way that other evidence is assessed. It should be noted that as a result of this consideration, contrary evidence may emerge. DVA will make every effort to verify information contained in personal accounts/statutory declarations.
The balance of probability test is unlikely to be satisfied on the basis of a veteran’s personal account/statutory declaration alone.
Where there are contradictions between the different types of evidence, consideration should be given to the weight of each type of evidence. Consideration should also be given to the weight of any corroborating evidence, if any, supporting a particular fact.
In some cases, the veteran’s recall of the circumstances cannot be confirmed by others or by available documentation and may even be seriously at odds with available records. In these cases, DVA’s policy on suspected fraud cases may need to be considered.
Considering the Evidence
Although the ADF Firefighter scheme is intended to be 'beneficial', this does not represent a departure from the normal rules of administrative decision making in the weighing of evidence. Generally speaking, wherever there is more than one interpretation of the facts or legislation, the interpretation adopted should favour the applicant. A beneficial interpretation of the material does not mean that decision makers are free to depart from the law or to behave capriciously or arbitrarily. The concept is not concerned with remedying substantive deficiencies in the evidence or the applicant's case [Bey v Repatriation Commission [1997] FCA 452].
However, if, when weighing up the material and asking whether or not a certain fact can be verified decision maker is genuinely unable to decide, the applicant should be given the benefit of any doubt.
Scheme eligibility is not eligibility for compensation
A determination of eligibility under the Scheme does not automatically entitle a veteran to compensation for a specific condition. However, Scheme eligibility reverses the onus of proof in relation to establishing a service connection as part of the liability claim investigation for any of the prescribed conditions, once it is established that the veteran suffers from that condition. See ‘Prescribed Conditions’, below.
Eligible firefighters who are diagnosed with one or more of the prescribed conditions must lodge a claim for liability under the DRCA, if they wish to claim compensation.
Where a claim for compensation for a prescribed condition has previously been unsuccessful, a reassessment may be requested under DRCA review arrangements.
Prescribed Conditions
The list of prescribed conditions is the same as those under the F-111 Deseal Reseal Scheme.
Some of the conditions on the list cover a multitude of diagnosable illnesses. The list is worded in this way to better enable veterans to relate the symptoms they experience to a condition on the list. International Classification of Diseases (ICD) codes are also included in the list to assist delegates to determine whether or not a diagnosed condition is covered by the prescribed list, and can therefore be assessed for DRCA liability under ADF Firefighter Scheme arrangements.
Australian Defence Force Firefighter Scheme Prescribed Health Conditions
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Category | Condition | ICD Code | Symptoms |
Skin rashes; associated systemic conditions | Dysplastic naevus | D22/ M8727/0 | A pigmented lesion of the skin, other than a melanoma, displaying an irregular border, indistinct margin and mixed colouration. |
Eczema/ dermatitis | L20 - L30 | Eczema is a puristic papulovesicular dermatitis that also has a later scaly stage. A dermatitis is any inflammation of the skin. | |
Neurological conditions | Multiple sclerosis | G35 | A degenerative disease of the nervous system characterised by the development of lesions separated in time and space in which the underlying pathology is the dermalisation of the affected nervous tissue. |
Parkinson’s disease | G20 | A degenerative disease of the nervous system, characterised by rigidity, tremor and bradykinesia with abnormality of gait and mask like faces. | |
Peripheral neuropathy | G62 | A condition in which there is simultaneous loss of function of multiple peripheral nerves. | |
Spinal muscular atrophy | G12 | A disease characterised by excessive loss of large motor neurons, with muscle showing evidence of degeneration atrophy. | |
Erectile dysfunction | N48.4 | An inability to obtain or maintain an erection of sufficient strength to complete an act of sexual intercourse. | |
Cauda equina syndrome | G95.9 | An impairment of both somatic and visceral sensory and motor function referable to the lower sacral and lumbar nerve roots. | |
Neurogenic bladder | N31.9 | A loss of bladder function or control as a result of a neurogenic disease. | |
Non-alcoholic toxic encephalopathy | G92 | A loss of cerebral functions, caused by toxic insult to the neurons, resulting from a toxic exposure other than ethanol. | |
Acquired colour vision deficiency | H53.5 | A disorder of colour vision not being due to genetic factors. | |
Mental disorders; personality changes | Depression | F32.0 - F33.9 F34, F38, F39 | A disorder affecting mood, with depressed mood; and/or the loss of interest in, or pleasure in, almost all activities. The individual may also suffer from: loss of appetite; weight loss; sleep disorders; decreased energy; feelings of worthlessness or guilt; and may have recurrent thoughts of death or suicide. |
Sleep disorders with neurological basis | G47.31 | A sleep disorder associated with either Parkinson’s Disease of degeneration of the cerebrum. | |
Bi-polar affective disorder | F31 | A disorder in which there has been at least one episode of mania and one episode of major depression. | |
Vertigo | R42 | An illusory sense of environment or self movement. | |
Memory loss | F04 | A loss of memory above that of normal (either short-term or long-term). | |
Anxiety | F41 | A disease in which there is excessive anxiety and worry on more days than not for a period of at least six months, with the sufferer also displaying features such as restlessness, irritability, muscle tension or disturbed sleep. | |
Panic disorders | F41.0 | A disease in which there are recurrent panic attacks, with persistent concern about future panic attacks, worry over the effect of panic attacks and there has been significant change in behaviour as a result of the attacks. | |
Impaired cognition | F03 | Any measurable loss of higher cerebral function. | |
Agoraphobia with panic disorder | F40.01 | A well defined cluster of phobias embracing fears. Panic disorder is a frequent feature of both present and past episodes. Avoidance of the phobic situation is prominent; some agoraphobics experience little anxiety because they are able to avoid their phobic situations. | |
All malignant neoplasms and myelo-proliferative disorders | Malignant neoplasms | C00 – C96 | Any disorder in which there is an abnormal growth of cells and the cells display either the ability to metastasize or to invade the surrounding tissues. |
Myeloproliferative disorders | C81 – C96, D45 and D47 | Any one of a family of diseases characterised by increased blood cell production, including myelogenous leukaemia, polycythaemia rubra vera and myelofibrosis. | |
Liver diseases | Liver disease (excluding diabetes) | K71 | Any disease or inflammation of the liver due to concentrations of chemicals and solvents. |
Pancreatic disease | K85 – K86 | Any disease or inflammation of the pancreas. | |
Gastrointestinal problems | Irritable bowel disorder | K58 | Chronic intermittent symptoms, including recurrent abdominal pain, with altered frequency of defecation with either constipation or diarrhoea or both, stool urgency and a sense of incomplete evacuation of the bowel. |
Ulcerative colitis / Crohn’s disease | K50 – K51 | Ulcerative colitis means a chronic, recurrent ulceration of the colon, chiefly of the mucosa or sub-mucosa, manifesting as cramping abdominal pain, rectal bleeding and loose discharges of blood, pus and mucosa. Crohn’s disease is a chronic, granulomatis inflammatory disease involving any part of the digestive tract with scarring and thickening of the bowel wall. | |
Diverticulitis, Diverticular Disease, Diverticulosis | K57 | The presence of inflammation in and around a diverticulum of the colon or rectum. | |
Bowel polyps | D12 K63.5 | A protruding growth from the mucosa of the colon or rectum. | |
Immunological disorders
| Mixed connective tissue disease | M35.1 | A disease when there is overlap of the clinical features of systemic lupus erythematosis, scleroderma, polymyositis and rheumatoid arthritis, usually with unusually high circulating antibody to a nuclear ribonucleoprotein. |
Systemic lupus erythematosus | M32 | A disease in which tissues and cells are damaged by pathological autoantibodies and immune complexes. | |
Sarcoidosis | D86 | A chronic, multisystem disorder in which in the affected organs there is an accumulation of T-lymphocytes and mononuclear phagocytes, with noncaseating epithelial granuloma and derangement of the normal tissue architecture. | |
The scheme recognises injuries from chemical exposures rather than from other causes such as inherited disorders or other injuries. Some of these injuries can have complex aetiology (causes). The instrument established under DRCA s7(1)(b) specifies particular ICD codes (diagnostic codes) to ensure the appropriate conditions are recognised.
Medical specialist investigation may be required to identify the particular ICD code for a particular condition for the purpose of the scheme.
Liability claims for prescribed conditions
A veteran may lodge a claim for liability under the DRCA for one of the prescribed conditions prior to their scheme application being lodged or determined. Should the veteran’s eligibility under the scheme then be confirmed, liability for the claim should be determined in line with scheme instrument established under DRCA s7(1)(b).
Where a scheme-eligible veteran has previously lodged a DRCA claim for a prescribed condition, and that claim was unsuccessful, the veteran may submit a new liability claim for that condition, even if the appeal pathways for the previous claim have been exhausted.
Where a condition arises under the 1930 or 1971 Act
Where a veteran is diagnosed with a prescribed condition that is taken to have arisen under the 1930 or 1971 Act, the DRCA s7(1)(b) instrument applies for liability purposes.
For compensation purposes, the outcome will depend on whether the 1971 Act or the 1930 Act applies. While the 1971 Act confers entitlements to “diseases” in a general manner for compensation purposes (as also occurs under the DRCA), the 1930 Act confers entitlements based only on certain diseases set out in Schedule 2 to the Act. Essentially, this means that there may be limitations to the types of conditions that can attract lump sum compensation under the 1930 Act.