Statement of Principles concerning asbestosis (Balance of Probabilities) (No. 60 of 2021)

This instrument is a Statement of Principles (No. 60 of 2021) made by the Repatriation Medical Authority under subsection 196B(3) of the Veterans' Entitlements Act 1986 (the VEA) (see s 3). It comes into force on 21 June 2021 (s 2) and expressly repeals the earlier Statement of Principles concerning asbestosis No. 56 of 2013 (s 4). The instrument applies to claims to which section 120B of the VEA or section 339 of the Military Rehabilitation and Compensation Act 2004 (MRCA) applies (s 5). It therefore functions as the medical/scientific statement that will be used in the statutory claims process under those Acts to determine, on the balance of probabilities, whether a person’s asbestosis (or death from asbestosis) can be connected with a person’s relevant service (s 8).

Mechanically, the instrument does the following:

• Defines the injury/disease in plain terms, specifying that for the purposes of the instrument asbestosis means interstitial fibrosis of the lung caused by the deposition of asbestos fibres in the lung parenchyma (s 7(2)). The instrument notes that asbestosis is associated with ICD‑10‑AM code J61, but states that the meaning for this instrument is the statutory definition in s 7(2) (s 7(3)-(4)).
• Lists the qualifying factors that must exist before it can be said, on the balance of probabilities, that asbestosis or death from asbestosis is connected with relevant service (s 9). These factors are forward‑looking, exposure‑based criteria (for example, cumulative hours of inhalation, timing relative to clinical onset or worsening), and one non‑exposure factor (inability to obtain appropriate clinical management).
• Requires that any factor from s 9 be related to the person’s relevant service (s 10(1)). It qualifies the operation of two of the factors (9(3) and 9(4)) by limiting them to situations where asbestosis was suffered or contracted before or during, but did not arise out of, the person’s relevant service (s 10(2)).
• Provides for cross‑reference to other Statements of Principles where a factor in s 9 refers to an injury or disease that has its own Statement of Principles; the other Statement will apply as in force from time to time (s 11).
• Defines terms used in the instrument in Schedule 1: notably, the definition of asbestosis (referencing s 7(2)), the meaning of relevant service (eligible war service, defence service other than certain categories, or peacetime service under the MRCA), and examples of terminal events for death claims (Schedule 1).

The legal effect is to set an evidentiary framework for causation in veterans’ claims relating to asbestosis and death from asbestosis. The instrument prescribes the discrete exposure and timing criteria that must be demonstrated at least in the sense that at least one of the listed factors in s 9 must exist and be shown to be related to relevant service (s 9; s 10(1)). It does not itself authorise payments or set benefits; rather it is the medical standard applied within the VEA and MRCA decision processes (s 5; s 3). The instrument contains no penalties, enforcement provisions, or procedural steps for claim adjudication beyond these substantive criteria.

The instrument rests on several core legal and medical concepts that determine its practical application. Each is specified in the text and should be read against the explicit wording.

Asbestosis (definition): The instrument defines asbestosis as interstitial fibrosis of the lung caused by deposition of asbestos fibres in the lung parenchyma (s 7(2)). The instrument adds a clinical note that fibrosis can range from minor basal involvement to extensive scarring (s 7(2) Note). Although it records the ICD‑10‑AM code J61 as the code commonly assigned to asbestosis, it makes clear that for the purposes of this Statement the statutory definition in s 7(2) governs (s 7(3)-(4)). That is a definitional rule: diagnostic coding is informational but not the controlling definition for the instrument.

Death from asbestosis: The instrument treats death from asbestosis as death from a terminal event or condition that was contributed to by the person's asbestosis (s 7(5)). Schedule 1 supplies examples of what counts as a terminal event: pneumonia, respiratory failure, cardiac arrest, circulatory failure or cessation of brain function (Schedule 1 terminal event definition). The term “contributed to” indicates a causal contribution standard for death claims, but the instrument does not specify degrees of contribution beyond that phrase; the operation remains within the broader “balance of probabilities” framework stated in s 8.

Factors and thresholds: Section 9 lists the factors that must exist. These are concrete exposure standards:

• Enclosed space exposure: inhalation of respirable asbestos fibres in an enclosed space while asbestos‑containing material was being applied, removed, cut, drilled, dislodged or disturbed, for a cumulative period of at least 1,500 hours before clinical onset, with the first inhalation commencing at least 10 years before clinical onset (s 9(1)(a)-(b)).
• Open environment exposure: equivalent activities in an open environment for a cumulative period of at least 5,000 hours before clinical onset, and the first inhalation at least 10 years before clinical onset (s 9(2)(a)-(b)).
• Exposure related to clinical worsening: inhalation during similar activities for a cumulative period of at least 1,500 hours before clinical worsening, and within the 2 years before the clinical worsening (s 9(3)(a)-(b)).
• Inability to obtain appropriate clinical management for asbestosis (s 9(4)).

Enclosed versus open environment matters for quantitative thresholds: 1,500 hours in enclosed spaces; 5,000 hours in open environments. Timing matters: a latency period of at least 10 years from first inhalation to clinical onset for the onset factors; for worsening, cumulative exposure within the two years before the clinical worsening. The instrument also includes a note that disturbance of existing asbestos‑contaminated debris or dust in either enclosed or open spaces may result in exposure (s 9 Notes).

The instrument identifies the classes of people and legal relationships to which it applies and creates practical effects for claimants, medical advisers and decision‑makers in the VEA/MRCA system.

Primary persons affected: The Statement applies to persons bringing a claim to which section 120B of the VEA or section 339 of the MRCA applies (s 5). Schedule 1 defines “relevant service”, which narrows the subset of veterans and members whose service is covered: 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; and peacetime service under the MRCA (Schedule 1). The instrument therefore affects veterans or members who claim under those statutory categories and allege asbestosis or death from asbestosis.

Decision‑process actors: The Repatriation Medical Authority (RMA) is the maker of the instrument under s 196B(3) VEA (s 3). While the instrument itself does not list the administrative decision‑makers who will apply it, its stated application to particular claims (s 5) means that administrators processing claims under s 120B VEA or s 339 MRCA will use the Statement as the medical standard. The instrument’s content will affect medical assessors preparing reports, legal representatives of claimants, and Veterans’ Affairs decision bodies that adjudicate entitlement under the VEA and MRCA. The text directly defines what evidence and medical findings are relevant for causation adjudication.

Clinical practitioners and medical documentation: Medical practitioners who diagnose or report on asbestosis are affected because the instrument sets a statutory definition of asbestosis (s 7(2)) that is the reference point for these claims. It notes the ICD‑10‑AM code J61 but makes clear the statutory definition controls (s 7(3)). Medical evidence that records interstitial fibrosis caused by deposition of asbestos fibres in the lung parenchyma, dates of clinical onset and clinical worsening, and records of treatment or failure to obtain appropriate clinical management will be directly relevant to claims.

Dependants and estates: For death claims, persons asserting a death from asbestosis claim will be affected because the instrument defines death from asbestosis to include death from a terminal event or condition that was contributed to by asbestosis (s 7(5)) and supplies examples of terminal events in Schedule 1. This affects eligibility assessments for survivors' claims where asbestosis contributed to the terminal event.

Third‑party or overlapping claims: Section 11 requires that if a factor in s 9 refers to an injury or disease covered by another Statement of Principles, then the other Statement applies. This affects claimants whose exposures or conditions straddle multiple medically defined diseases for which separate Statements exist; their claims may require cross‑reference to other RMA Statements.

The instrument itself establishes substantive evidentiary criteria rather than prescriptive procedural duties or express private rights. The operative “duties” in practice derive from the rules a claimant must satisfy to establish a connection between asbestosis (or death from asbestosis) and relevant service.

Obligations implicit for claimants and their representatives:

• Demonstrate existence of at least one qualifying factor in s 9. The instrument requires that “at least one of the following factors must exist before it can be said that, on the balance of probabilities, asbestosis or death from asbestosis is connected with the circumstances of a person's relevant service” (s 9). That is a threshold evidentiary requirement.
• Show service‑relationship. Any factor established under s 9 must be related to the person's relevant service as defined in Schedule 1 (s 10(1); Schedule 1 defines relevant service). The claimant therefore bears responsibility in the claims context to link the identified factor to their relevant service period and activities.
• Observe timing rules. For factors addressing onset (s 9(1)-(2)), the first inhalation must have commenced at least 10 years before clinical onset. For worsening (s 9(3)), exposure must be within the two years before clinical worsening. These are material temporal requirements that the claimant must satisfy in proving causation under the Statement.
• For aggravation/material contribution factors (s 9(3)-(4)), establish that the asbestosis was suffered or contracted before or during, but did not arise out of, the person’s relevant service (s 10(2)). That conditions when these factors can operate, i.e. they are limited to contribution or aggravation of pre‑existing disease.

Rights and procedural implications:

• Right to rely on the Statement. The instrument “applies to a claim to which section 120B of the VEA or section 339 of the MRCA applies” (s 5). That gives claimants under those statutory provisions the entitlement to have causation assessed against this Statement’s criteria.
• Right to have cross‑referenced Statements applied where relevant. If a factor in s 9 refers to an injury or disease for which a separate Statement has been determined, that Statement applies as in force from time to time (s 11). This ensures that overlapping medical conditions are not excluded by the present Statement; claimants can rely on subsequent or existing Statements for related pathologies.

What the instrument does not do (express limits):

The instrument contains no express penal provisions, fines, criminal offences or administrative penalties. It is a Statement of Principles , a medical‑scientific instrument setting standards for causation in the veterans’ claims context , and does not in its text create enforcement mechanisms or sanctions.

What the instrument does provide for enforcement in functional terms is limited to application within the statutory claims frameworks specified. Specifically:

• Application to claims: the instrument “applies to a claim to which section 120B of the VEA or section 339 of the MRCA applies” (s 5). This situates the Statement’s “enforcement” within the existing administrative decision processes and appeal pathways of the VEA and MRCA. Any practical enforcement , that is, the effect of the Statement in determining whether a claim succeeds , will therefore flow from the adjudicative machinery and appeal rights provided by those Acts, not from this instrument itself.
• Authority of the RMA: the instrument is made under subsection 196B(3) of the VEA (s 3). That subsection is cited as the authority for the RMA to determine Statements of Principles. The instrument’s legal force for claims arises from that statutory making power; the RMA is the statutory body that sets the medical standard that decision‑makers will apply when assessing causation under the specified claim provisions.

Absent provisions in the instrument:

• There is no section prescribing audits, compliance inspections, or mandatory notifications to third parties (for example, employers).
• There is no procedural enforcement mechanism for ensuring that a medical practitioner follows the instrument’s definition other than the effect that medical evidence inconsistent with the instrument is less likely to meet the s 9 thresholds in claims determinations.
• There is no expressed sanction for misrepresentation or fraudulent claims within the instrument itself. Any such sanctions would be those provided by the VEA, MRCA or other applicable statutes and are not set out in this instrument.

Practical consequence for adjudication: The main “enforcement effect” is evidentiary. If a claimant cannot establish at least one factor in s 9 and that the factor is related to relevant service (s 10(1)), a causal connection on the balance of probabilities cannot be found under this Statement. The instrument thus functions as a gatekeeping standard in entitlement determinations rather than as a penal code or enforcement manual.

This Statement of Principles is embedded within, and expressly references, particular statutory frameworks. The instrument’s legal effect is contingent on those references and on its relationship with other RMA Statements.

Statutory authority and application: The instrument is made under subsection 196B(3) of the Veterans' Entitlements Act 1986 (s 3). It expressly applies to a claim to which section 120B of the VEA or section 339 of the MRCA applies (s 5). This means that the instrument is an instrument of the VEA framework, and its operative effect is to provide the medical causation standard to be applied in claims under those statutory provisions. The instrument cites MRCA and VEA terms in Schedule 1 to ensure interpretive alignment (Schedule 1).

Relationship to other Statements of Principles: Section 11 establishes a mechanism for inter‑Statement interaction. It states that if a factor in section 9 refers to an injury or disease covered by another Statement of Principles determined under subsection 196B(3) of the VEA, then the factors in that Statement apply in accordance with its terms as in force from time to time (s 11). That creates legal interdependence: where an exposure or secondary condition mentioned in s 9 overlaps with another disease that has its own Statement, claim adjudicators must apply the other Statement's factors as they stand. This avoids inconsistent outcomes by deferring to the relevant Statement for overlapping pathologies.

Diagnostic coding and clinical standards: The instrument references ICD‑10‑AM code J61 for asbestosis but stipulates that the statutory definition in s 7(2) is the operative meaning in applying the Statement (s 7(3)-(4)). It explicitly references the Independent Hospital Pricing Authority’s edition of the ICD‑10‑AM (s 7(4)). This cross‑reference links the statutory Statement to recognised clinical coding practice while reserving the instrument’s text as the controlling definition for claims purposes.

Repeal of prior instrument: Section 4 repeals the Statement of Principles concerning asbestosis No. 56 of 2013 (Federal Register of Legislation No. F2013L01644). That repeal means the 2021 Statement supersedes the 2013 Statement in the statutory regime; any claims falling within the scope of s 5 will be assessed against the No. 60 of 2021 Statement from its commencement (s 2). The instrument therefore interacts with the corpus of RMA Statements historically by replacing the earlier instrument for asbestosis.

Limitations and scope relative to VEA/MRCA: The Statement does not itself create entitlement, payment mechanism, appeal rights or procedural rules; those remain governed by the VEA and MRCA. The interaction is that the Statement supplies the causal medical criteria to be applied within the statutory claims mechanisms. It follows that questions such as burden of proof, decision timelines, review and appeal pathways remain a matter for the VEA/MRCA processes and any other relevant statutes, not for this Statement.

The instrument itself supplies a concise amendment history limited to its making, commencement and repeal of a predecessor. The following particulars are explicit in the text and are the only statements the source makes about history and chronology:

• Instrument identity and date: It is titled the Statement of Principles concerning asbestosis (Balance of Probabilities) (No. 60 of 2021) and is dated 21 May 2021 (front matter and s 1 signature page). The instrument bears the Common Seal of the Repatriation Medical Authority, affixed at the direction of Professor Nicholas Saunders AO, Chairperson (front matter).
• Commencement: The instrument commences on 21 June 2021 (s 2). That is the operative start date from which the Statement may be applied to relevant claims under the VEA and MRCA as specified.
• Authority: It is made under subsection 196B(3) of the Veterans' Entitlements Act 1986 (s 3). This explains the statutory power that permits the RMA to determine Statements of Principles.
• Repeal of earlier instrument: Section 4 expressly repeals the Statement of Principles concerning asbestosis No. 56 of 2013 (Federal Register of Legislation No. F2013L01644) that had previously been made under subsection 196B(3) of the VEA. The repeal indicates that No. 60 of 2021 replaces No. 56 of 2013.
• No other amendments or transitional provisions: The instrument contains no express amendments to other instruments beyond the express repeal of No. 56 of 2013. It contains no transitional provisions, savings clauses, or grandfathering provisions in the text supplied. The only temporal provision is the commencement date (s 2).
• Versioning and cross‑reference to ICD edition: The instrument references the ICD‑10‑AM Tenth Edition, effective date 1 July 2017, for the ICD code citation (s 7(4)). That is an informational link to a specific edition of a clinical classification system; it does not itself function as an amendment history item but fixes which ICD edition the instrument references.

No other amendment events, amendments in force dates, or histories are recorded in the text. There is therefore a short amendment history: the 2021 Statement was made and commenced, and it repealed the 2013 Statement. Any subsequent amendments to the 2021 Statement are not reflected in the supplied text. Users should note that s 11 contemplates other Statements being “in force from time to time”, which implies subsequent Statements may be made or amended elsewhere, but the instrument itself does not record such changes.

The instrument contains no litigation history and cites no cases, decisions, or judicial authorities. It is a medical‑scientific Statement of Principles determined by the Repatriation Medical Authority and the text includes no references to litigation, court findings, or precedential authorities. Consequently:

• There are no judicial interpretations, appellate decisions or case law cited within the instrument text to assist interpretation of the exposure thresholds, timing rules or the definition of asbestosis.
• No specific decisions applying this Statement are referenced in the instrument, and no historical litigation about this particular Statement or its predecessor is included in the text.
• The instrument does not include a section setting out prior challenges to the predecessor Statement No. 56 of 2013 or of the RMA’s determinations more broadly.

Practical implications of the absence of litigation history in the instrument:

• Adjudicators, practitioners and claimants must rely on the plain language of the instrument and any guidance supplied by decision‑making bodies applying the VEA/MRCA rather than on judicial explication contained within the instrument itself.
• Where interpretive questions arise (for example, the meaning of “enclosed space” or “inability to obtain appropriate clinical management”), litigated authority will need to be sought from decisions under the VEA/MRCA outside this instrument rather than from the instrument’s text. The instrument does not provide a repository of interpretative answers.
• The instrument’s silence on litigation means that any judicial development, if it exists, is external to the text and must be researched in tribunal or court decisions citing this Statement after its commencement. That research falls outside what this instrument contains.

Because the instrument contains no litigation history, parties seeking precedential guidance must turn to the administrative decisions and courts that apply the VEA and MRCA and any subsequent RMA explanations or guidance published after the date of this Statement. The instrument itself provides the statutory medical standard but not its adjudicative jurisprudence.

The instrument sets out precise criteria and several drafting choices that can be sources of error or misunderstanding in claims practice. The following are concrete, source‑grounded pitfalls and interpretative tensions that practitioners and claimants should note, with explicit pointers to the controlling text.

1. Definitional primacy over ICD code: The instrument records that asbestosis attracts ICD‑10‑AM code J61 but clarifies that “in applying this Statement of Principles the meaning of asbestosis is that given in subsection (2)” (s 7(3)). Gotcha: a medical report stating “J61” without confirming the statutory definition (interstitial fibrosis caused by asbestos deposition) may be insufficient by itself. Practitioners must ensure medical evidence addresses the statutory definition in s 7(2), not only diagnostic coding.

2. Cumulative hours and environment categories: The instrument differentiates enclosed space (1,500 cumulative hours) and open environment (5,000 cumulative hours) exposures for onset factors (s 9(1)-(2)). Gotcha: exposure accounting must match the instrument’s environment categorisation. There is no guidance in the text on borderline environments or mixed environments. Claimants relying on cumulative hours need evidence identifying the environment type during exposure events and cumulative quantification to the required threshold.

3. Latency period requirement for onset: For onset factors (s 9(1)-(2)), the first inhalation must have commenced at least 10 years before clinical onset. Gotcha: claimants must establish both the date of first inhalation and the date of clinical onset. Absence of clear medical records marking “clinical onset” may create difficulties; the instrument does not define “clinical onset” further. Practitioners should note the strictness: the 10‑year threshold is an explicit temporal condition.

4. Different test for clinical worsening: The worsening factor (s 9(3)) requires a cumulative exposure of at least 1,500 hours before clinical worsening and that the exposure be within two years before the clinical worsening. Gotcha: this is a materially different timing test from the onset factors and applies only to worsening. Precise medical dating of clinical worsening is therefore critical.

5. Limited operation of worsening and clinical management factors: Subsections 9(3)-(4) apply only to material contribution to, or aggravation of, asbestosis where the person’s asbestosis was suffered or contracted before or during (but did not arise out of) the person's relevant service (s 10(2)). Gotcha: if the asbestosis arose out of relevant service (that is, the disease first arose because of relevant service), then these two factors do not operate as material contribution/aggravation factors. Practitioners must understand the pre‑existing disease limitation.

Compliance, in the context of this Statement of Principles, means assembling and presenting the medical and service evidence necessary to demonstrate that at least one of the factors in section 9 exists and that the factor is related to the claimant’s relevant service (s 9; s 10(1)). Below is a checklist and practical steps grounded in the instrument’s wording.

1. Confirm applicability of the Statement to the claim

• Verify the claim falls under section 120B of the VEA or section 339 of the MRCA (s 5). If the claim is not within those statutory provisions, this Statement does not apply per its terms.
• Confirm the claimant’s service fits Schedule 1’s definition of “relevant service” (Schedule 1). Relevant service covers eligible war service (other than operational), defence service (other than hazardous service and British nuclear test defence service), and peacetime service under the MRCA.

2. Establish the medical diagnosis in statutory terms

• Obtain a medical report that explicitly addresses the statutory definition of asbestosis in s 7(2): interstitial fibrosis of the lung caused by the deposition of asbestos fibres in the lung parenchyma. Do not rely solely on the ICD code J61; the instrument requires the statutory definition to be met (s 7(2)-(4)).
• For death claims, obtain clinical statements explaining whether death was from a terminal event or condition and whether asbestosis contributed to that terminal event (s 7(5); Schedule 1 list of terminal events).

3. Documentary proof of exposure and timing

• For onset factors (s 9(1)-(2)):
  • Provide evidence identifying the environment(s) of exposure (enclosed versus open) and document the activities during which asbestos‑containing material was being applied, removed, cut, drilled, dislodged or disturbed.
  • Quantify cumulative exposure hours: show that exposure reached at least 1,500 cumulative hours in enclosed spaces (s 9(1)(a)) or at least 5,000 cumulative hours in open environments (s 9(2)(a)). This will typically require contemporaneous records, employment histories, task logs, affidavits, or workplace records.
  • Establish the date of first inhalation and show it commenced at least 10 years before clinical onset (s 9(1)(b)-(2)(b)). Link the date of first inhalation to service periods set out in Schedule 1.
• For clinical worsening factors (s 9(3)):