Statement of Principles concerning chloracne (Balance of Probabilities) (No. 63 of 2020)

The central concept is "chloracne" as defined in subsection 7(2). It means a chronic skin disease characterised by an acne-like eruption of open and closed comedones, pustules, and epidermal cysts, occurring after systemic absorption of certain polyhalogenated aromatic hydrocarbons. The definition expressly excludes drug-related acneiform facial eruptions, narrowing the scope of the condition to only those cases where the aetiology involves the specified chemicals. The disease itself is not necessarily lethal, but the instrument extends to death from chloracne, defined to include death from a terminal event contributed to by the person's chloracne. "Terminal event" is defined in the dictionary as the proximate or ultimate cause of death and includes pneumonia, respiratory failure, cardiac arrest, circulatory failure, or cessation of brain function. This is a standard definition in these instruments and prevents disputes about what constitutes the cause of death for disease-acceptance purposes.

The second key concept is the "specified list of polyhalogenated aromatic hydrocarbons". This list is exhaustive and includes azobenzenes (including 3,3',4,4'-tetrachloroazobenzene), azoxybenzenes, dioxin-like polychlorinated biphenyls (PCBs), o-dichlorobenzene, polybrominated biphenyls (PBBs), polybromodibenzofurans, polychlorodibenzofurans (PCDFs) as specified, polychlorodibenzo-para-dioxins (PCDDs) as specified, polychloronaphthalenes, polychromonaphthalenes, and triazoloquinoxalines. The PCDFs and PCDDs are further defined in sub-items with specific chemical congeners (e.g., 2,3,7,8-tetrachlorodibenzofuran; 2,3,7,8-tetrachlorodibenzo-para-dioxin etc.). This chemical specificity is critical: exposure to polyhalogenated aromatic hydrocarbons that are not on this list cannot satisfy the factor, even if they might otherwise cause similar skin conditions. The instrument provides non-exhaustive examples of products that may contain such chemicals (fungicides, herbicides, insecticides, transformer oils, wood protectors) and circumstances that may lead to exposure (being in an environment shrouded in dust from treated timber, being sprayed, cleaning or maintaining equipment, consuming contaminated cooking oil or food, decanting or spraying, handling or sawing treated timber, using contaminated cutting oil). These examples are illustrative only and bind no one; the real test is whether the person actually inhaled, ingested, or had cutaneous contact with a chemical from the specified list.

The third concept is "relevant service". This term is defined in the dictionary and is limited to three categories: 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; or peacetime service under the MRCA. The critical exclusion is operational service and hazardous service: claims for those kinds of service are governed by a different SoP made under subsection 196B(2) of the VEA (reasonable hypothesis standard). This SoP, made under subsection 196B(3), applies only where the standard is balance of probabilities, which typically applies to peacetime and non-operational service. That distinction affects the burden on the claimant: they must prove the factor existed on the balance of probabilities, not merely raise a reasonable hypothesis.

The fourth conceptual layer is the basis for determining the factors: section 8 states that on the sound medical-scientific evidence available, the Repatriation Medical Authority is of the view that it is more probable than not that chloracne and death from chloracne can be related to relevant service. This is the Authority's statutory finding that justifies the factors. It does not itself bind decision-makers but explains why the factors were chosen. The factors themselves are set out in section 9: (1) exposure within six weeks before clinical onset; (2) exposure within six weeks before clinical worsening; (3) inability to obtain appropriate clinical management. The six-week period is specific and likely derived from the known latency period for chloracne after exposure. The third factor is a general factor found in many SoPs for conditions that are potentially manageable; it acknowledges that if the veteran could not obtain treatment for the pre-existing or service-related condition, the worsening may be attributable to service.

The instrument directly affects veterans and members of the Australian Defence Force who have rendered "relevant service" as defined and who suffer from chloracne or die from chloracne. Specifically, it covers persons with eligible war service (but not operational service), defence service (but not hazardous service or British nuclear test defence service), or peacetime service under the MRCA. This means the instrument does not apply to the vast majority of combat veterans whose service is classified as operational. Those veterans are covered by the "reasonable hypothesis" SoP for chloracne, which is likely more generous to the claimant because it only requires raising a hypothesis on the sound medical-scientific evidence. Consequently, this SoP imposes a higher evidentiary burden on claimants who served in peacetime or non-operational capacities.

The instrument also affects decision-makers: delegates of the Repatriation Commission, the Military Rehabilitation and Compensation Commission, and review tribunals (Veterans' Review Board, Administrative Appeals Tribunal). They must apply the factors mechanically. If a claimant satisfies a factor and the factor is related to service, the decision-maker must accept the connection. If no factor is established, the decision-maker must refuse the claim under the balance of probabilities standard. There is no residual discretion to find connection on other medical evidence not captured by the factors; the SoP is binding as to the necessary conditions for acceptance.

In practice, the instrument affects persons who may have been exposed to specified polyhalogenated aromatic hydrocarbons during their service. These include military personnel involved in handling or spraying herbicides (e.g., during base maintenance), working with transformers containing PCBs, handling wood treated with pentachlorophenol or similar preservatives, or being in environments where these chemicals were present. The examples in the notes give a sense: being in an environment shrouded in dust from treated timber, being sprayed with a product containing the chemicals, cleaning or maintaining application equipment, consuming contaminated cooking oil or food (possibly in field canteens), decanting or spraying, handling or sawing treated timber, using cutting oil contaminated with the substances. The exposure does not have to be the sole cause; it must exist within six weeks before clinical onset or worsening. For death claims, the chloracne must have contributed to a terminal event.

The instrument also indirectly affects medical practitioners who may be asked to provide evidence of exposure and the temporal relationship. It does not affect the general population, as it only relates to service-related claims under federal veterans' compensation law. It does not create any duties or rights for employers, manufacturers, or others outside the veterans' compensation system. However, the SoP may be cited in other contexts (e.g., civil litigation for exposure to dioxins) as an authoritative statement of the medical-scientific evidence for causal connection, though it is formally only a legislative instrument for VEA and MRCA claims.

Finally, the instrument affects the Repatriation Medical Authority itself as the body that must keep the SoP under review. The repeal of the 2012 SoP means the Authority had to reconsider the available evidence and issue a fresh instrument. The current instrument started on 28 September 2020 and remains in force until repealed or amended.

The instrument does not impose duties on private persons; it is a legislative rule that creates no direct obligations. However, it establishes a legal entitlement for claimants who meet its criteria: if at least one factor exists and is related to the person's relevant service, the decision-maker must accept that the chloracne is connected to service on the balance of probabilities. That connection then triggers the right to compensation under the VEA or MRCA for the disease (e.g., disability pension, medical treatment, incapacity payments, or dependant's benefits in death cases). Conversely, if the factors are not satisfied, the claim must be refused, and the claimant has no right to have the condition accepted under this standard. The instrument does not create a right to appeal, but decisions made under it are reviewable under the standard mechanisms of the VEA and MRCA.

The primary duty falling on decision-makers is to correctly interpret and apply the factors. The duty is to ensure that the factor "must be related to the relevant service rendered by the person" (section 10(1)). For factor (9)(2) (exposure before clinical worsening) and factor (9)(3) (inability to obtain appropriate clinical management), the instrument adds a condition: they "apply only to material contribution to, or aggravation of, chloracne where the person's chloracne was suffered or contracted before or during (but did not arise out of) the person's relevant service". This means that if the chloracne originally arose out of service (i.e., was already service-related), factors (2) and (3) are not needed because the condition is already accepted. But if the person had chloracne before service or contracted it during service but not due to service, then these factors can be used to show that service materially contributed to or aggravated the pre-existing condition. It is a subtle but important qualification that prevents double-counting.

The claimant's duty is to provide evidence that satisfies the factor on the balance of probabilities. This typically means medical evidence confirming the diagnosis of chloracne (excluding drug-related acneiform eruptions), evidence of exposure to a specified polyhalogenated aromatic hydrocarbon (not just any chloracne-causing chemical), and evidence of the timing (within six weeks before clinical onset or worsening). The examples of circumstances given in the notes are not exclusive but may help the claimant identify possible exposure events. However, the notes are not legally binding; only the defined terms and factors are. The claimant's duty does not extend to disproving alternative causes; the standard is simply whether the factor is more likely than not to have existed.

There is also a duty on the Repatriation Medical Authority to ensure the factors are based on sound medical-scientific evidence. Section 8 records that the Authority holds that view, but non-compliance with that obligation is not directly justiciable; the instrument is validly made if the Authority complies with section 196B of the VEA. The instrument itself does not create any right to challenge the factors themselves.

This instrument contains no penalty provisions. It is a determination of medical-scientific factors, not a regulatory or criminal instrument. Enforcement mechanisms arise from the VEA and MRCA, not from this SoP. If a claimant provides false or misleading evidence to satisfy the factors, they may be prosecuted under the Criminal Code (Cth) for offences such as fraud or providing false information to a Commonwealth officer. The VEA also has provisions for recovery of overpaid compensation if a decision is later found to have been based on false statements. But those penalties flow from the parent Acts, not from this instrument.

The SoP itself is enforceable only in the sense that decision-makers must apply it. If a decision-maker fails to apply the factors correctly, the claimant may seek review. The Veterans' Review Board or the Administrative Appeals Tribunal can set aside the decision and substitute a new one applying the correct factors. Non-compliance with the instrument could also be grounds for judicial review under the Administrative Decisions (Judicial Review) Act 1977, but only for errors of law, not errors of fact. The instrument is a legislative instrument, so it has the force of law; failure to apply it is an error of law.

There are no civil penalties, infringement notices, or enforcement orders associated with the SoP. The only "penalty" for a decision-maker who misapplies it is that their decision may be overturned on review. For the Repatriation Medical Authority, there is no penalty provision for making an invalid instrument, though the instrument could be challenged in the Federal Court on the basis that the Authority did not comply with statutory requirements (e.g., failure to have sound medical-scientific evidence). That would not attract a financial penalty but would result in the instrument being declared invalid or remitted.

Given the source is only this instrument, no specific penalty provisions are found. The answer must reflect that the instrument is silent on penalties and enforcement.

This instrument is made under subsection 196B(3) of the VEA and applies to claims under section 120B of the VEA and section 339 of the MRCA. The parent Acts define the overall compensation schemes; this SoP sits within that framework as a determinative factor for acceptance of chloracne. It replaces and repeals the earlier SoP No. 18 of 2012, so for claims made after 28 September 2020, the old SoP no longer applies. However, the instrument provides in section 5 that it applies to claims to which section 120B VEA or section 339 MRCA apply. That includes both new claims and claims that were not finally determined before the commencement date? The instrument does not specify transitional provisions beyond repeal; it likely applies to all determinations made after commencement regardless of when the claim was lodged. That interpretation is standard but not explicit in the source.

The instrument interacts with other Statements of Principles via section 11: if a factor in this SoP refers to an injury or disease that is itself covered by another SoP, then the factors in that other SoP apply in accordance with its terms as in force from time to time. This prevents the need to duplicate every possible intermediate disease. For example, if a person claims that chloracne was caused by exposure to a chemical that also caused hepatitis, and the factor refers to hepatitis, the decision-maker would need to look at the SoP for hepatitis to determine if that hepatitis is service-related. But in this instrument, the factors do not explicitly refer to another injury or disease; they refer only to exposure to specified chemicals and inability to obtain management. So section 11 may not often be engaged. However, if the "inability to obtain appropriate clinical management" factor triggers a need to consider an underlying disease that is the reason management was unavailable (e.g., lack of treatment for another condition), that other condition might need to be assessed under its own SoP. The cross-reference is prospective: the other SoP as in force from time to time, not as at the date of this instrument.

The instrument also interacts with the definition of "relevant service" in the VEA and MRCA. It specifically picks up three sub-categories and excludes others. For operational service claims, the SoP made under subsection 196B(2) applies, which would be a separate instrument (possibly No. 17 of 2012 for chloracne under reasonable hypothesis). The existence of a separate SoP for the same disease under a different standard means the two instruments are complementary but exhaustive: no claim for chloracne can be assessed without one of the two SoPs applying, depending on the service type. This SoP does not affect claims under other Commonwealth schemes (e.g., the Safety, Rehabilitation and Compensation Act 1988) because it is specific to VEA and MRCA.

The source document itself does not supply a full amendment history. It states in section 4 that it repeals the Statement of Principles concerning chloracne No. 18 of 2012 (Federal Register of Legislation No. F2012L00448) made under subsection 196B(3) of the VEA. That is the only historical fact provided. Since the instrument is a new determination made on 28 August 2020 and commencing 28 September 2020, and it replaces the 2012 version, it is the second known iteration of the balance-of-probabilities chloracne SoP. There is no indication of any intermediate amendments. The instrument appears to be a standalone consolidation, not an amending instrument. It has full text and schedule, so it supersedes the earlier version entirely. Future amendments would require a new instrument or an amending instrument under the same legislative authority. The source does not mention any earlier version before 2012; it is reasonable to assume there may have been earlier SoPs (possibly under different section references) but they are not referred to. The Repatriation Medical Authority typically issues SoPs with sequential numbers; No. 63 of 2020 suggests it is the 63rd SoP made in 2020, across all diseases. The numbering is administrative, not substantive.

There is no history of amendments within this instrument (no tables of amendments, no schedules of changes). The dictionary definitions and the factors appear to have been updated from the 2012 version, but without the 2012 text, we cannot identify what changed. The instrument states it was made on "sound medical-scientific evidence available" as of the date. The Authority would have reviewed the evidence since 2012 and decided a new SoP was warranted. The instrument is self-contained and does not incorporate any amendments to other laws.

The source document contains no references to litigation. No cases are named. The instrument itself is a legislative determination and not a judgment. However, Statements of Principles are frequently litigated in the Administrative Appeals Tribunal and the Federal Court on grounds including whether the Authority had sound medical-scientific evidence, whether the factors are correctly interpreted, and whether the instrument is validly made. For example, in cases such as Repatriation Commission v Vietnam Veterans' Association of Australia (NSW Branch) Inc (2002) 122 FCR 449, the Federal Court examined the structure of SoPs. But the source does not mention any such cases. Since we must not invent cases, we must state that the instrument does not reference any litigation history. The only inference we can draw is that the 2012 SoP would have been subject to litigation over the years, but the 2020 version replaced it, perhaps to address judicial interpretations. The instrument's definitions, especially the exhaustive list of chemicals and the exclusion of drug-related eruptions, appear carefully drafted to avoid past interpretive disputes.

Given the strict instruction not to invent cases or statistics, this section must be brief and note the absence of any litigious references in the source. That alone is a useful piece of information: the Authority did not need to incorporate any court rulings into the text. It does not mean the SoP cannot be challenged; it simply means the instrument is not self-referential to litigation.

Several features of this instrument could catch out the unwary claimant or decision-maker. First, the definition of chloracne in subsection 7(2) excludes "drug-related acneiform facial eruptions". This is a critical exclusion because many acne-like eruptions are caused by medications (e.g., corticosteroids, lithium, isoniazid). A claimant who develops an acneiform rash after taking a medication during service (such as for malaria prophylaxis or infection) would not satisfy the definition even if the rash looks identical to chloracne. The decision-maker must verify that the condition is not drug-related. The notes to the definition describe typical distribution (face, earlobes, neck, trunk, genitalia, buttocks) and possible accompanying signs (hyperpigmentation, hyperhidrosis), but those notes are not part of the definition , they are informational only. However, they may be used as guidance in diagnosis.

Second, the "specified list of polyhalogenated aromatic hydrocarbons" is exhaustive. If a chemical is not on that list, exposure cannot satisfy a factor. The list includes dioxin-like PCBs and PCDDs (dioxins) but not all PCBs , only dioxin-like ones. The definition of dioxin-like PCBs is not further elaborated in the source; it relies on the usual toxicological classification. But note that o-dichlorobenzene is included, but other dichlorobenzenes (m- or p-) are not. The inclusion of polychloronaphthalenes is specific; many chloronaphthalenes may be included only if named.

Third, the six-week window is strict. Exposure must occur within six weeks before clinical onset (factor 1) or before clinical worsening (factor 2). This reflects the typical latency for chloracne after high-level exposure. But if exposure occurs outside that window, even if it clearly caused the disease, the factor is not met. The instrument does not provide for cumulative or long-term low-level exposure; it assumes a discrete exposure event. This could disadvantage persons with chronic low-level exposure over months or years, where onset may be delayed well beyond six weeks.

Fourth, factor (3) , inability to obtain appropriate clinical management , is limited by section 10(2): it applies only to material contribution to or aggravation of chloracne that was suffered or contracted before or during (but did not arise out of) the person's relevant service. So it cannot be used to establish the original onset of chloracne; it only explains why a pre-existing condition got worse. The claimant must first show they had chloracne before or during service (unrelated to service) and then show that lack of clinical management during service (due to service circumstances) worsened it. This is a narrow path.

Fifth, "relevant service" excludes operational service and hazardous service. Many veterans assume their service qualifies, but if they rendered operational service, this SoP does not apply. They must instead rely on the reasonable hypothesis SoP. That may be easier for them, but they must use the right instrument. Decision-makers must check the service type before applying this SoP.

Sixth, the interaction with other SoPs under section 11: if a factor refers to another disease, that other disease's SoP applies in its current form. But the factors in this SoP do not mention other diseases, so this may not often arise. However, the "inability to obtain appropriate clinical management" could be interpreted as referring to an underlying condition that prevents management (e.g., a mental health condition causing refusal of treatment). If so, that underlying condition would need to be service-related under its own SoP. That is a potential trap for decision-makers who do not check.

Seventh, the definition of "terminal event" includes "cessation of brain function". That is a late 20th-century concept of death. In claims where chloracne itself is not fatal but contributed to a terminal event, the causal link must be proven. The term "contributed to" is not defined but taken from the VEA case law. It is a lower threshold than "caused".

Eighth, the instrument does not provide a deeming provision for exposure where records are lost. Unlike some other SoPs for herbicide exposure (e.g., for operational service in Vietnam), this instrument has no special evidentiary rules. If the person cannot prove actual exposure on the balance of probabilities (e.g., no records, no witnesses), the factor is not satisfied even if the service type raises a suspicion.

For a claimant seeking acceptance of chloracne under this SoP, compliance means assembling evidence that satisfies one of the three factors and demonstrates the factor is related to relevant service. The first step is to obtain a definitive medical diagnosis of chloracne from a dermatologist, ensuring that drug-related acneiform eruptions are excluded. The diagnosis must be consistent with the definition in subsection 7(2): a chronic skin disease with open and closed comedones, pustules, epidermal cysts, occurring after systemic absorption of specified polyhalogenated aromatic hydrocarbons. The doctor's report should explicitly state that the condition is not caused by medication.

Second, the claimant must identify a specific exposure event to a chemical on the specified list. The list is long, but typical exposures for Australian defence personnel may involve herbicides (2,4,5-T contaminated with TCDD), transformer oils (PCBs), wood preservatives (pentachlorophenol contaminated with PCDDs), or cutting oils. The exposure must be proven on the balance of probabilities. This can be done through service records (e.g., unit postings, job descriptions, incident reports), witness statements, or expert evidence. The examples in the notes are not exhaustive, but they provide categories of circumstances: handling treated timber, spraying, being in dust from treated wood, etc. The exposure route can be any of inhalation, ingestion, or cutaneous contact. The temporal requirement is strict: the exposure must have occurred within six weeks before the clinical onset (for a first claim) or within six weeks before a worsening (for an aggravation claim). The clinical onset date must be established by medical records. If the onset is not precisely known, the decision-maker will often accept the date of first recorded symptoms or diagnosis.

Third, for factor (3) (inability to obtain appropriate clinical management), the claimant must show that there was appropriate clinical management available but they could not obtain it due to their service circumstances, and that this inability materially contributed to the worsening of pre-existing chloracne. This is difficult to prove without clear evidence: e.g., being posted to a remote area without dermatology services, or being unable to attend appointments due to operational demands. The chloracne must have been present before or during service but not arisen from service.

Fourth, the factor must be related to the person's relevant service. The definition of relevant service in the dictionary is limited; the claimant must confirm their service qualifies. For those with eligible war service (non-operational), defence service (non-hazardous), or peacetime service under MRCA, this SoP applies. The relationship is typically straightforward if the exposure occurred during service duties. But if the exposure occurred off-duty (e.g., while on leave using contaminated cooking oil), it may not be related to service. The decision-maker will assess the connection.

For the decision-maker, compliance means carefully parsing the dictionary definitions. They must verify that the chemical is on the specified list and not just a general polyhalogenated aromatic hydrocarbon. They must check the six-week window. They must ensure the factor is the correct one: factor (9)(1) for onset, factor (9)(2) for worsening of pre-existing chloracne, factor (9)(3) for inability to manage pre-existing chloracne. For the latter two, they must check section 10(2) to see if the aggravation condition applies. They must also consider section 11 if the factor triggers another SoP.

Record-keeping: the decision-maker should document the findings on each element: diagnosis, exposure, timing, relationship to service. If the claim fails, the reasons must specify which element was not satisfied. For the claimant, obtaining contemporaneous medical records and service records is critical. It may be advisable to obtain an expert report from a toxicologist or occupational physician linking the specific chemical to the chloracne.

The instrument itself gives no compliance guidance (no checklists, no forms). The claimant must rely on the standard claims process under the VEA or MRCA. The SoP is simply the rule to apply once evidence is gathered. Non-compliance with the SoP by the decision-maker (e.g., ignoring the list of chemicals and accepting a non-listed chemical) would be an error of law that can be corrected on review. Conversely, a claimant who does not meet any factor cannot succeed, regardless of other medical evidence that might suggest a causal connection. That is the binding nature of the SoP. Therefore, the most important compliance step is to accurately identify whether any factor can be established on the balance of probabilities. If none can, the claim will fail unless the service type is actually operational and a reasonable hypothesis SoP applies , but that is a different instrument.