Statement of Principles concerning colorectal adenoma (Balance of Probabilities) (No. 16 of 2022)

The central concept is "colorectal adenoma", which the instrument defines (section 7(2)) as a benign neoplasm arising from epithelial cells of the colorectum. It explicitly includes adenomatous polyp, sessile serrated adenoma, and traditional serrated adenoma. It excludes benign neoplasms of the anus and anal canal, familial adenomatous polyposis, non‑neoplastic polyps of the colon, nonepithelial neoplasms of the colon, and non‑polypoid dysplasia. The ICD‑10‑AM codes assigned (D12.0 through D12.8) are only a guide; the definition in subsection (2) controls. This matters because the scope of the SoP is narrower than the ICD codes might suggest: non‑neoplastic polyps (such as hyperplastic polyps) are excluded even if they would fall under a D12 code.

Another key concept is the "balance of probabilities" standard set out in section 196B(3) of the VEA, which governs this instrument. This is the civil standard, meaning it must be more probable than not that the factor connects the disease to service. The instrument also defines "relevant service" restrictively: it does not cover operational service under the VEA or hazardous service under the MRCA. That is a separate claimant pool subject to a different SoP (the "reasonable hypothesis" standard made under subsection 196B(2) or 196B(13)). The note in section 8 expressly states the RMA’s view that it is "more probable than not that colorectal adenoma and death from colorectal adenoma can be related to relevant service" - that is a statutory precondition for making the balance‑of‑probabilities SoP.

The dictionary in Schedule 1 further defines important terms. "Being obese" has three alternative metrics: BMI of 30 or greater, or waist circumference exceeding 102 cm (male) or 88 cm (female). This allows claimants to rely on waist circumference if BMI is not available or is misleading due to muscle mass. "Adenoma of the colon" is defined separately from colorectal adenoma: it means a benign epithelial neoplasm of the colon anatomically from caecum to sigmoid colon, excluding the rectosigmoid junction. This distinction matters because factors in subsection 9(6) apply only to adenoma of the colon, not to rectal adenoma. "One pack‑year" is defined as 20 cigarettes per day for one year, with an equivalent of 7,300 grams of smoking tobacco by weight. "Alcohol consumption" is calculated using the Australian Standard of 10 grams per standard drink. "Fibre in food" means complex carbohydrates of plant origin resisting digestion, including cellulose and pectins. "MET" (metabolic equivalent of task) is defined as 3.5 ml oxygen/kg/min or 1.0 kcal/kg/hour, i.e., resting metabolic rate. These definitions create precise, verifiable thresholds that determine eligibility.

The direct subjects of this SoP are veterans and members of the Australian Defence Force who have rendered relevant service as defined and who claim compensation or pension for colorectal adenoma under the VEA or MRCA. Specifically, it covers: (a) persons with eligible war service that is not operational service (e.g., home defence, certain peacetime service); (b) persons with defence service under the VEA that is not hazardous service or British nuclear test defence service (essentially peacetime defence service between certain dates); and (c) members under the MRCA with peacetime service. These individuals must demonstrate at least one of the listed factors is related to that service. The instrument does not affect persons with operational service (who are covered by a separate reasonable‑hypothesis SoP), nor does it affect civilian claimants or workers’ compensation claims.

Indirectly affected groups include medical practitioners who must provide evidence of the factors: documentation of smoking history, alcohol consumption, BMI, waist circumference, diabetes diagnosis, fibre intake, physical activity levels, and red/processed meat consumption. Departmental decision‑makers (at the Department of Veterans’ Affairs) are bound to apply the exhaustive list of factors; they cannot accept a causal claim outside those factors unless the claimant can show the SoP itself is invalid. The RMA is affected as the author of the instrument, which must be reviewed periodically. The repeal of the 2013 SoP means that any claims determined after 31 January 2022 must be assessed under this version, though transitional provisions may apply to pending claims.

The instrument also imposes a compliance burden on claimants: they must prove the existence of a factor and that the factor is related to service. For example, showing "inability to obtain appropriate clinical management" under section 9(7) requires evidence that the lack of management was due to service circumstances. This factor is also limited by section 10(2) to cases where the disease was suffered or contracted before or during (but not arising out of) service - that is, it only helps with aggravation or material contribution, not original causation. Claimants with colorectal adenoma that is not colon‑specific cannot rely on the red meat, processed meat, or physical inactivity factors (section 9(6)). This excludes rectal adenoma from those subfactors, which may affect a significant subset of claimants.

The SoP imposes no direct duties on claimants or third parties. Its legal effect is to structure the decision‑making rights of veterans and members to have their claim assessed against a predetermined set of causal factors. The primary right for a claimant is the right to have their claim determined in accordance with this instrument if they fall within the relevant service category. If they satisfy at least one factor, and that factor is related to their service, the decision‑maker must accept that colorectal adenoma is connected to service on the balance of probabilities. The duty lies on the decision‑maker to apply the SoP correctly: they cannot disregard a factor that is met, and they cannot invent new factors.

The instrument also creates an evidentiary standard: the claimant bears the onus of proving the factor exists and is service‑related. The SoP does not alter the standard of proof, but it does define what counts as a connection. The note to section 8 does not create any duty; it merely states the RMA’s view. The factor in section 9(7) - inability to obtain appropriate clinical management - is unique because it applies only to material contribution or aggravation, not to original causation (section 10(2)). This means a claimant whose adenoma existed before service cannot rely on that factor to show the service caused it, only that the service worsened it or contributed to it materially.

Another duty is on the RMA to ensure the SoP is based on sound medical‑scientific evidence. Section 8 states that the RMA is of that view, but the instrument itself does not provide the evidence. If new evidence emerges, the RMA may need to revoke or amend the SoP. The instrument also preserves the operation of other SoPs: section 11 provides that if a factor refers to an injury or disease covered by another SoP (e.g., obesity or diabetes), then the factors in that other SoP apply as in force from time to time. This creates a cross‑referencing obligation: a claimant may need to satisfy a separate SoP for a precondition (like diabetes mellitus) if that precondition itself must be service‑related. The instrument does not, however, create a right to have the precondition automatically accepted.

The instrument itself contains no penalty provisions. It is a determinative instrument that guides administrative decision‑making, not a penal statute. Enforcement consequences arise indirectly under the VEA and MRCA. False or misleading statements made in connection with a claim that relies on this SoP could lead to prosecution under general criminal offences (e.g., section 137.1 of the Criminal Code (Cth) for giving false information to a Commonwealth official). Civil penalties may also apply under the VEA for obtaining benefits by fraud. However, the SoP does not create any new offences.

The more immediate enforcement mechanism is the refusal of a claim if the claimant cannot satisfy any factor. That is not a penalty but a denial of entitlement. If a claimant misrepresents the existence of a factor (e.g., claiming a smoking history of 20 pack‑years when it is only 15), the decision‑maker may reject the claim, and if fraud is suspected, the matter may be referred to the Department’s integrity unit. The VEA also allows for recovery of overpayments if a claim has already been paid and later found to be based on false information.

The SoP is also subject to judicial review under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) and merits review by the Administrative Appeals Tribunal (AAT). A claimant who disagrees with a decision can apply for review; the AAT will apply the same SoP. If the SoP itself is challenged as arbitrary or not based on the required evidence, a court could theoretically invalidate it, though such challenges are rare and require showing the RMA did not have regard to sound medical‑scientific evidence. The instrument itself does not provide for any enforcement body; it is a rule‑making instrument, not a compliance tool.

The SoP is made under section 196B(3) of the VEA, which is the head power for balance‑of‑probabilities SoPs. It interacts with section 120B of the VEA, which requires that a claim for operational service (or hazardous service) be determined under a different subsection (196B(2) or 196B(13)) - not this instrument. So this SoP only applies to the narrower class of relevant service. It also interacts with section 339 of the MRCA, which similarly limits its application to peacetime service under that Act. If a veteran has multiple service types, the decision‑maker must determine which SoP applies based on the service that is alleged to have caused the disease.

The instrument interacts with other SoPs via section 11: if a factor refers to an injury or disease covered by another SoP (e.g., diabetes mellitus, obesity), that other SoP’s factors also apply. This creates a cascade: to satisfy the colorectal adenoma factor of having diabetes for at least 5 years, the diabetes itself may need to be service‑related under its own SoP. However, the instrument does not require that the diabetes be service‑related; it only requires that diabetes existed for at least 5 years before onset of the adenoma. The other SoP would only come into play if the factor in this SoP stated otherwise, which it does not. The note in section 9(3) defines "being obese" but does not refer to another SoP for obesity itself; the obesity factor is self‑contained. The interaction with the general law of evidence and administrative law: the SoP is a legislative instrument that binds decision‑makers, overriding any general common‑law approach to causation for these claims.

The instrument also interacts with the definition of "death from colorectal adenoma" in section 7(5). Death includes a terminal event contributed to by the adenoma, with "terminal event" defined in the dictionary (pneumonia, respiratory failure, cardiac arrest, circulatory failure, or cessation of brain function). This means that even if the immediate cause of death is, say, pneumonia, the death can still be attributed to the adenoma if the adenoma contributed to the pneumonia. This interplay with coronial findings and medical death certificates may be significant. The instrument does not affect workers’ compensation, motor accident compensation, or private health insurance - it is exclusive to the VEA/MRCA context.

This instrument repeals and replaces the Statement of Principles concerning colorectal adenoma No. 36 of 2013 (registered as F2013L01141) made under the same subsection of the VEA. The 2022 version was determined on 24 December 2021 and commenced on 31 January 2022. The source text does not list any interim amendments between 2013 and 2022; the 2022 instrument is a complete rewrite, not an amending instrument. The instrument does not provide a summary of changes, but comparing the 2013 version (which is not provided here) would show updates to the scientific evidence base, possibly including the addition of colon‑specific factors for physical inactivity, red meat, and processed meat, and the refined definitions of colorectal adenoma (including sessile serrated adenoma and traditional serrated adenoma). The 2013 SoP likely did not include the 15‑year cessation window for smoking or the 500 kg alcohol threshold; those may be new.

The commencement date of 31 January 2022 means that any claim made after that date is determined under this version. Pending claims at that date may be subject to transitional provisions under the VEA, but the instrument itself is silent on that - it only states it applies to claims to which section 120B or section 339 applies. The instrument is listed as "No. 16 of 2022", indicating it is the 16th SoP made in 2022. The RMA periodically reviews and updates SoPs; the 2022 version supersedes the 2013 version entirely. There is no formal amendment history within the instrument; it is a standalone replacement. The instrument does not include a clause saving the 2013 version for pending proceedings, so the general rule under the Acts Interpretation Act 1901 would apply - the repeal does not affect rights accrued before the repeal, but claims not yet determined would likely be assessed under the new version unless the decision‑maker treats the old version as still applicable for claims lodged before commencement. Practitioners should check transitional administrative guidance from the DVA.

The instrument itself, as a 2022 determination, has likely not been the subject of any reported litigation at the time of drafting. The source text contains no reference to any court or tribunal case. However, the predecessor SoP (No. 36 of 2013) may have been challenged in the AAT or Federal Court, but this instrument does not cite any such cases. More generally, SoPs are frequently reviewed by the AAT on factual grounds - whether the factor exists - and occasionally on legal grounds, such as whether the RMA properly adhered to the statutory requirement to consider sound medical‑scientific evidence. For example, in Repatriation Commission v Tuite (2007) the Federal Court considered the validity of a SoP, but that case is not referenced here and pertains to different conditions.

Given that this is a balance‑of‑probabilities SoP, it is likely to be applied in AAT reviews for non‑operational service claims. The AAT will consider the medical evidence in relation to each factor, and claimants may argue that the RMA’s thresholds are arbitrary. However, the AAT cannot disregard the SoP; it is bound to apply it. Any appellate court challenge would have to argue that the SoP is unreasonable or not based on evidence - a high bar. The instrument’s definitions may also be litigated: for example, whether a particular polyp falls within the definition of colorectal adenoma or is excluded (e.g., non‑neoplastic polyp). The distinction between colon adenoma and rectal adenoma for the colon‑only factors could generate disputes about anatomical boundaries (the rectosigmoid junction). No such cases are yet reported for this specific instrument, but they are foreseeable. The absence of litigation history in the source simply means the instrument has not been judicially considered yet; it is not a guarantee of future litigation.

Several traps are embedded in the instrument that could trip up even experienced practitioners. First, the factor for smoking (section 9(1)) requires at least 20 pack‑years, commencement at least 5 years before clinical onset, and if smoking ceased, onset must occur within 15 years of cessation. Claimants who quit smoking 16 years before onset are excluded, even if they smoked heavily. Second, the alcohol threshold is 500 kilograms - that is 50,000 standard drinks. At 10 grams per standard drink, that is 500,000 grams of pure alcohol, or roughly 625,000 ml of wine at 12% alcohol. This is a very high threshold, equivalent to about 2.7 standard drinks per day for 50 years. Many claimants will not reach it. Third, the obesity factor requires obesity for at least 10 years within the 30 years before onset. Transient obesity or obesity that developed later in life may not satisfy this.

The colon‑only factors in section 9(6) require careful anatomical diagnosis: "adenoma of the colon" excludes the rectum. If a veteran has a rectal adenoma, they cannot use the physical inactivity, red meat, or processed meat factors. That is a clear‑cut exclusion. The physical inactivity factor (section 9(6)(a)) requires inability to undertake physical activity greater than 3 METs for at least 10 consecutive years within the 30 years before onset. That is a very low threshold - 3 METs is walking at about 2.5 mph - so only severe immobility qualifies. It does not cover general sedentary lifestyle. The red meat factor (section 9(6)(b)) requires an average of at least 100 grams per day for at least 5 years within the 10 years before onset. That is roughly one standard serving. Claimants must prove consistent consumption; occasional heavy consumption does not count. The processed meat factor (section 9(6)(c)) uses 25 grams per day (about one frankfurter). Clinical onset must be precisely dated; if the adenoma was detected years before symptoms, the clinical onset may be earlier than diagnosis.

The fibre factor (section 9(5)) is an "inability to consume" (i.e., the claimant could not get fibre, not that they chose not to eat it). That is a much narrower concept than a voluntary low‑fibre diet. It presumably requires circumstances of service that prevented access to fibre, such as combat rations. The diabetes factor (section 9(4)) requires at least 5 years duration; undiagnosed diabetes may be hard to prove. Finally, the "inability to obtain appropriate clinical management" factor (section 9(7)) is limited by section 10(2) to material contribution or aggravation - it cannot be used to prove original causation. Many will miss that temporal nuance.

Compliance with this instrument is relevant for two groups: claimants seeking to establish service connection, and decision‑makers assessing claims. For claimants, the first step is to determine the precise anatomical location and type of the adenoma - is it colon or rectal? Is it adenomatous or serrated? Excluded polyps (hyperplastic, non‑neoplastic) mean the SoP does not apply at all. A colonoscopy and histology report should specify the diagnosis. Next, the claimant must review the exhaustive list of factors and identify which one(s) might exist and be related to service. Evidence must be gathered: smoking history can be documented from service medical records or personal diary; pack‑year calculation must follow the formula. Alcohol consumption is best proven by contemporary records; self‑reports are often unreliable.

For obesity, BMI can be calculated from service medical records; waist circumference may need a clinical measurement. The 10‑year duration within the 30‑year window requires medical records or other credible evidence (e.g., family photographs, routine army health screens). Diabetes mellitus diagnosis and duration should be confirmed by pathology records (HbA1c, fasting glucose) and clinician notes. Fibre intake: if the claimant argues inability to consume fibre, they must show that service conditions prevented access to vegetables, fruits, or cereals. That might include being on active field rations for long periods. Red meat and processed meat consumption must be averaged over at least 5 years; evidence could include mess hall menus, ration pack content reports, or sworn statements.

Physical inactivity at less than 3 METs for 10 consecutive years is a very high bar - it essentially requires near‑bedridden state due to service‑related injury or condition. Medical and physiotherapy records would be essential. For a claimant who already has a colorectal adenoma before or during service and argues aggravation, the inability‑to‑obtain‑clinical‑management factor may apply, but they must show that failure to get timely surveillance or treatment worsened the adenoma. They also still need to show that the adenoma itself did not arise out of service.

For decision‑makers, compliance means applying the factors exactly as written. They must check anatomical exclusions, calculate thresholds correctly (e.g., converting alcohol into kilograms, not litres), and note the colon‑only limitations. They must also verify that any factor that refers to another injury or disease (like diabetes) is addressed under its own SoP if needed - though the instrument does not require that the diabetes be service‑related, so that may not be necessary. The decision‑maker must also ensure that the factor is related to service (section 10(1)). For the factor in section 9(7), they must apply the limitation in section 10(2) - that factor can only support material contribution or aggravation, not original causation. All evidence must be weighed according to the balance of probabilities; the SoP does not lower that standard.