Statement of Principles concerning influenza (Balance of Probabilities) (No. 45 of 2017)

The central concept is the “statement of principles” mechanism within the VEA. The RMA determines these instruments based on sound medical-scientific evidence. The “balance of probabilities” standard used here means the RMA must be satisfied that it is more probable than not that the disease can be related to relevant service. This contrasts with the “reasonable hypothesis” standard for operational service claims under s196B(2).

“Relevant service” is defined narrowly to exclude operational service, hazardous service, and British nuclear test defence service under the VEA, and excludes warlike or non-warlike service under the MRCA. It covers only eligible war service (other than operational), defence service (other than hazardous), and peacetime service under the MRCA. This means the SoP applies to peacetime military service where the connection to service must be proved on the balance of probabilities.

The instrument defines “influenza” broadly, including infection with human and animal influenza subtypes, and encompassing death from influenza where a terminal event (e.g. pneumonia, respiratory failure) was contributed to by the influenza. “Clinical onset” is not defined but is a key temporal point for the factors. The factors themselves are the core: they are the only bases on which connection can be established. There is no residual category. This means if a veteran has influenza but cannot point to one of the enumerated exposures or circumstances, the connection to service cannot be made under this SoP.

The factor concerning “inability to obtain influenza vaccination” is notable and requires the person to have been unable (not merely unwilling) to obtain the vaccine within the specified window. For severe influenza (defined as complicated by pneumonia, hospitalisation, or death), additional factors apply: having a medical condition as specified (a list of 10 conditions including asthma, cardiovascular disease, diabetes, immunocompromised state, morbid obesity, etc.) or being in the third trimester or six weeks postpartum.

The dictionary defines several important terms: “close exposure” as within two metres; “immunocompromised state as specified” with a list that includes HIV, immunosuppressive drugs, malignancy, chronic renal failure, severe malnutrition, and transplantation; and “medical condition as specified” which references immunocompromised state as a subset. The instrument also incorporates the concept of “material contribution” or aggravation for factor 9(6) (inability to obtain appropriate clinical management), which only applies where the influenza was suffered or contracted before or during (but did not arise out of) relevant service. This is a narrower application than the other factors.

Finally, the SoP interacts with other Statements of Principles through section 11, which provides that if a factor refers to an injury or disease covered by another SoP, the factors in that other SoP apply. This means that, for example, if a veteran has diabetes as a medical condition for factor 9(5)(a), the diabetes itself must meet the requirements of the diabetes SoP. This creates a cascading chain of proof.

The primary persons affected are veterans and members of the Defence Force who have rendered “relevant service” as defined. Specifically, this includes: (a) veterans with eligible war service that is not operational service under the VEA (this could include peacetime service or service in certain non-combat zones); (b) members with defence service that is not hazardous service and not British nuclear test defence service (covering routine peacetime defence service); and (c) members who have rendered peacetime service under the MRCA. This SoP does not apply to operational service claims (where the standard is reasonable hypothesis) or to hazardous service or British nuclear test defence service.

The instrument also affects those who have died from influenza where death is claimed to be service-related, and their dependents or estate may make a claim. Medical practitioners evaluating veterans for compensation purposes must be aware of the defined terms and factors to provide appropriate evidence. Legal practitioners and advocates representing veterans must understand the stringent requirements of the SoP, particularly the need to link one of the specific factors to the person’s service history.

The Repatriation Commission and the Military Rehabilitation and Compensation Commission are the decision-makers who must apply the SoP when determining claims. The Department of Veterans’ Affairs and the Department of Defence (for MRCA claims) will use this instrument in their assessment officers’ training. The RMA itself is not a user but a maker of the instrument.

Also affected are employers and contractors of the ADF who may be involved in providing evidence of exposure or vaccination records. Insurance providers who offer top-up coverage for veterans may also need to understand the SoP to assess risk. However, note that the SoP does not directly affect civilians or veterans with operational service (for whom a different SoP under s196B(2) might apply, but this particular SoP is explicitly for balance of probabilities). Healthcare facilities that have treated veterans should be prepared to provide records that match the definitions, particularly around influenza vaccination and clinical management.

The instrument imposes no direct duties on private individuals or corporations. Its legal effect is to establish the criteria for the decision-maker (the Commission) in determining whether a causal connection exists between influenza and relevant service. The key “right” for a claimant is that if they can establish that at least one of the factors in section 9 existed and was related to their relevant service, then the Commission must accept that the influenza is connected with service, thereby making the claim successful (subject to other requirements of the VEA or MRCA). Conversely, if no factor is made out, the Commission cannot find that connection.

The instrument does not create a right to compensation itself; that right arises from the primary legislation. The SoP is a binding instrument under the VEA. Claimants have a duty to provide sufficient evidence to demonstrate a factor exists. There is no duty on the Commonwealth to assist beyond the standard obligations under the VEA. The instrument also gives the RMA the power to determine and revoke SoPs.

The factor at 9(6) is subject to a unique limitation: it only applies to material contribution or aggravation where influenza was suffered or contracted before or during service but did not arise out of service. This is a limitation on the claimant’s ability to rely on that factor. The definition of “being exposed to influenza virus as specified” includes different criteria for human, avian, and swine influenza, which creates a right to rely on the appropriate subtype if exposure evidence exists.

The instrument also preserves the application of other SoPs via section 11, meaning a claimant may need to satisfy multiple SoPs if a factor involves another condition (e.g., diabetes). The decision-maker must refer to the most current version of those other SoPs. There is no right to challenge the SoP itself (except through judicial review of the RMA’s determination on jurisdictional grounds). The instrument is designed to remove discretion, so it limits the decision-maker’s right to use alternative reasoning.

The SoP itself does not create penalties. Penalties and enforcement mechanisms are found in the primary legislation: the VEA and the MRCA. Wrongfully obtaining compensation by fraud or false statements is an offence under the Criminal Code and the VEA. The SoP may be used as evidence in such proceedings to show that a claim was not properly made out.

There is no enforcement body specific to this instrument; rather, it is applied by the Repatriation Commission and the Military Rehabilitation and Compensation Commission in their claims determination processes. If a decision-maker fails to apply the SoP correctly, that is grounds for review by the Veterans’ Review Board and the Administrative Appeals Tribunal. The RMA itself cannot enforce compliance.

The instrument may also be relevant to civil litigation if a third party (e.g., a hospital) is sued for negligence in failing to provide influenza vaccine to a veteran, but the SoP itself does not create a cause of action. The revocation of the earlier SoP (No. 59 of 2009) means that any claim determined after 18 September 2017 must be assessed under the new SoP; if a decision-maker applied the old one, it could be an error of law.

The SoP also has no direct criminal penalties for non-compliance by the RMA or the Commissions; the standard of review is for jurisdictional error. In practice, the main risk is that a claimant fails to meet the factors and their claim is rejected. There is no penalty for making a claim that is ultimately unsuccessful, unless fraud is involved. The SoP’s definitions of “immunosuppressive drug” include examples but are not exhaustive, so decision-makers must interpret the term reasonably. Failure to interpret correctly could lead to successful appeals.

The instrument is made under the VEA and also applies to the MRCA. It operates within the framework of those two Acts. Section 120B of the VEA and section 339 of the MRCA specifically require the Commission to have regard to Statements of Principles determined by the RMA. These provisions give the SoP its binding effect.

The instrument also interacts with the International Statistical Classification of Diseases (ICD-10-AM) Ninth Edition, which is used to code diseases; the SoP provides a definition of influenza that overrides the ICD code for the purposes of the SoP (subsection 7(3) states that while influenza attracts codes J09-J11, the meaning is that given in the SoP). This avoids the problem of ICD coding being purely administrative.

The SoP also interacts with other Statements of Principles through section 11. If a factor (e.g., medical condition as specified) includes another condition for which an SoP exists (e.g., diabetes), then the claimant must also satisfy that SoP. This means that proving a connection for influenza may involve satisfying multiple cascading SoPs.

The instrument may interact with public health laws concerning vaccination, but the SoP does not mandate vaccination; it only considers inability to obtain vaccination. It may also interact with workers’ compensation legislation or superannuation disability schemes if a veteran has claims under multiple systems, but the SoP is specific to the VEA/MRCA context.

The instrument revokes the previous influenza SoP (No. 59 of 2009) but does not affect any existing determinations made under that earlier SoP. Transitional provisions are not included in the source; presumably they would be found in the VEA.

The SoP does not directly interact with state or territory legislation, but medical evidence gathered under state health systems may be used. The definition of “influenza virus” as an RNA virus of the Orthomyxoviridae family ties into infectious disease law and public health reporting, but the SoP is for compensation purposes only. Overall, the SoP is a self-contained instrument that depends on the VEA and MRCA for its authority and enforcement, and it creates no direct obligations under other laws.

The instrument (No. 45 of 2017) is the current version at the date of commencement (18 September 2017). It revokes the previous instrument, the Statement of Principles concerning influenza No. 59 of 2009, which was also made under subsection 196B(3) of the VEA. The source does not indicate any later amendments to this specific instrument.

The instrument was made on 18 August 2017 and commenced on 18 September 2017. The RMA previously determined SoP No. 59 of 2009, which is now revoked. Any claims made before 18 September 2017 would have been assessed under the 2009 SoP; claims on or after that date are assessed under this 2017 SoP.

The instrument does not include any transitional provisions for pending claims. The VEA generally provides that a claim is determined under the law in force at the time of determination, but there may be exceptions if the claim was lodged earlier. Practitioners must check the application section (section 5) which says it applies to claims to which s120B VEA or s339 MRCA apply; there is no mention of limiting to claims made after commencement. Typically, the RMA’s SoPs apply to claims not yet finally determined at commencement.

The source does not mention any subsequent versions, so we must note that the instrument may have been amended or replaced after 2017, but the user provided only this instrument. Therefore, the amendment history based on the source is: original No. 59 of 2009, revoked by No. 45 of 2017. No further amendments are given.

The source instrument does not refer to any litigation. However, Statements of Principles under the VEA are frequently challenged in the Administrative Appeals Tribunal (AAT) and the Federal Court. The principal ground for challenge is that the RMA failed to base the SoP on sound medical-scientific evidence, or that the SoP is so restrictive as to be irrational or contrary to the Act.

Specific to influenza SoPs, there may be cases concerning the meaning of “clinical onset”, the definition of “close exposure”, or the requirement for “inability to obtain vaccination”. For example, in cases involving the earlier SoP, the AAT might have considered whether a veteran’s exposure in a military barracks met the “close exposure” test. However, the source does not name any cases, so we cannot invent them.

The instrument itself has a note that the RMA is of the view that it is more probable than not that influenza can be related to relevant service based on sound medical-scientific evidence. This statement may be challenged in litigation as being arbitrary or not supported. The history of litigation around SoPs generally shows that courts give considerable deference to the RMA’s expertise.

The instrument includes a definition of “severe influenza” which may be litigated as to whether a particular complication qualifies. The “inability to obtain appropriate clinical management” factor may give rise to disputes about what constitutes “appropriate clinical management” in a military setting.

The instrument was made on 18 August 2017, so any litigation would be after that date. Without specific cases mentioned, we can only note that the SoP is reviewable under the Administrative Decisions (Judicial Review) Act 1977 and the AAT Act, and that challenges to SoPs are a known feature of veterans’ law.

Several provisions in this instrument are traps for unwary practitioners or claimants.

First, the instrument applies only to “relevant service” which excludes operational service, hazardous service, and British nuclear test defence service. Claimants with operational service must rely on a SoP made under s196B(2) (reasonable hypothesis), not this one. Many might assume the same SoP applies, but it does not.

Second, the definitions of “being exposed to influenza virus as specified” differ for human, avian, and swine influenza. For human influenza, there is an expansion: being in the same household or immediate work/travel environment as a person who has influenza. For avian and swine, there is no such household/work travel provision; instead, specific animal-related exposures are listed. This means a claimant who was exposed to a person with avian flu (not a common scenario) would need to show “close exposure” (within 2 metres or direct contact) rather than just being in the same household.

Third, the factor about “inability to obtain influenza vaccination” is narrower than it appears. It requires inability to obtain vaccination between ten days and six months before the clinical onset. This excludes those who were simply unwilling to be vaccinated, or who could have obtained it but chose not to. The inability must be genuine and due to circumstances such as a shortage, medical contraindication, or service requirement.

Fourth, factor 9(6) (inability to obtain appropriate clinical management) has a unique limitation: it applies only to material contribution or aggravation where influenza was suffered or contracted before or during service but did not arise out of service. This is a temporal limitation that may be hard to prove.

Fifth, the definition of “immunocompromised state as specified” includes “being treated with an immunosuppressive drug” but the list of examples in the note is not exhaustive. However, the condition must be a “substantially lowered immune function”. A claimant on a low-dose corticosteroid may not qualify if the immune function is not substantially lowered.

Sixth, “close exposure” is defined as within 2 metres, but for airborne diseases like influenza, this may be difficult to reconstruct years later.

Seventh, the instrument does not define “appropriate clinical management” which is likely to be contentious.

Eighth, the SoP does not include a factor for being in a military environment where influenza is circulating, unless the specific exposure definitions are met. A general claim that “many people in my unit had flu” may not suffice without establishing close exposure.

Ninth, the word “influenza” in the SoP overrides the ICD code; the clinical diagnosis must match the definition, which includes characteristic symptoms. A diagnosis of “flu-like illness” may not meet the definition.

Tenth, section 11 creates a chain of proof: if a claimant relies on a medical condition as specified (e.g., diabetes), they may need to satisfy the diabetes SoP, which may require its own factors linking diabetes to service. This multiplies the evidentiary burden.

Eleventh, the instrument is for balance of probabilities, so the standard of proof is lower than reasonable satisfaction but still requires a real possibility. Practitioners must not confuse the two standards.

Twelfth, the SoP does not cover secondary infections from influenza, such as bacterial pneumonia, unless they are complications included in “severe influenza”. Death from influenza includes terminal events contributed to by influenza, but not necessarily death from a subsequent infection not listed.

Compliance with this instrument is not a matter for the ordinary citizen; it is for decision-makers and claimants in the veterans’ compensation system.

For the Repatriation Commission and MRCC, compliance means correctly applying the SoP to each claim. They must identify which factor the claimant relies on and check that the evidence meets the definitions. For the factor of exposure, the Commission should require evidence of the specific exposure type (human, avian, swine) and that it occurred within three weeks before clinical onset. For vaccination inability, they should look for medical records showing contraindications, or service records showing vaccine shortages. For severe influenza, they need to confirm the complications meet the definition and that the medical condition was present at the time.

For claimants, to comply means gathering the strongest evidence possible. For exposure, get contemporaneous records of influenza outbreaks in a unit, witness statements from others who had influenza, and records of close proximity. For vaccination inability, obtain medical records documenting contraindications (e.g., anaphylaxis to egg protein) or service orders cancelling vaccination drives. For medical conditions, ensure the condition is definitively diagnosed and falls within the list (e.g., asthma, diabetes, morbid obesity with a specific BMI? Not defined here, but generally BMI >40). Also ensure that if the medical condition itself needs to be service-related per another SoP, that chain is established.

Lawyers should advise claimants not to rely solely on factor 9(6) (inability to obtain appropriate clinical management) because of its restrictive scope. It is better to prove direct exposure. The dictionary definitions must be read carefully. The term “influenza” itself requires fever, cough, shortness of breath, headaches, myalgia, conjunctivitis and pneumonia; note that not all symptoms are required? The definition says “characterised by” which suggests a combination; but clinically, not all patients have all features. This could be a point of dispute. The safest approach is to have a laboratory-confirmed diagnosis (PCR or culture) to prove influenza virus infection. The definition does not require lab confirmation, but it helps.

For death from influenza, a medical report linking death to one of the terminal events contributed to by influenza is needed. Finally, if the claim involves a terminal event, the death certificate should be reviewed. The SoP is binding, so if the evidence cannot meet a factor, the claim will fail. The only way around this is to argue that the SoP is invalid, which is a high hurdle. Therefore, meticulous attention to the definitions and timelines is essential for successful compliance.