Statement of Principles concerning malignant melanoma of the skin (Balance of Probabilities) (No. 35 of 2024)

The central concept is the “factor” set out in section 9. There are ten factors, each representing a plausible causal pathway from service to malignant melanoma. The first factor is having at least five sunburns at the affected site at least five years before clinical onset. Sunburn is defined in the dictionary as painful erythema of the skin lasting at least 48 hours from exposure to solar ultraviolet radiation. This is a stricter definition than ordinary sunburn; transient redness without pain or short duration does not count. The second factor is cumulative sunlight exposure to unprotected skin of at least 4,500 latitude equivalent hours before clinical onset. Unprotected skin means skin directly exposed to sun without sunscreen, clothing or other barrier. Latitude equivalent hours involve multiplying hours of exposure by a weighting factor depending on latitude: tropical (23.5°S to 23.5°N) multiply by 1.0, subtropical (23.6° to 35°) by 0.75, warm temperate (35.1° to 45°) by 0.5, cool temperate (45.1° to 65°) by 0.25. This accounts for varying ultraviolet intensity. The third factor is using an ultraviolet-emitting tanning device on at least ten occasions, with first exposure more than five years before clinical onset. The fourth factor is PUVA therapy (psoralen plus UVA) with at least 250 treatments and first treatment at least 15 years before clinical onset. The fifth factor is undergoing solid organ or bone marrow transplantation before clinical onset. The sixth factor is treatment with methotrexate or azathioprine within two years before clinical onset. The seventh and eighth factors are having non-Hodgkin lymphoma or chronic lymphocytic leukaemia/small cell lymphoma at least one year before clinical onset. The ninth factor is having Parkinson’s disease for at least two years before clinical onset. The tenth factor is inability to obtain appropriate clinical management for malignant melanoma before clinical worsening. This factor applies only to material contribution or aggravation where the melanoma was suffered or contracted before or during (but did not arise out of) relevant service (section 10(2)). The instrument defines malignant melanoma of the skin inclusively: it comprises primary malignant neoplasm from melanocytes, including melanoma in situ, lentigo maligna, superficial spreading, nodular, desmoplastic, amelanotic, and melanoma of the lip, anogenital region, palms, soles, and nail beds. It expressly excludes melanoma of the eye, mucosa, and melanocytic naevi. The instrument also defines death from malignant melanoma to include death from a terminal event contributed to by the melanoma, such as pneumonia, respiratory failure, cardiac arrest, circulatory failure, or cessation of brain function.

The primary direct effect is on veterans and members of the Australian Defence Force who have “relevant service” as defined in the schedule. Relevant service means: 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. This excludes those with operational service (e.g., warlike service in declared conflicts) because those claims are decided under a different standard (reasonable hypothesis) and a separate SoP would apply. The instrument thus affects a narrower cohort: peacetime veterans, reservists on non-operational service, and defence members with peacetime service. These individuals must satisfy the factors in section 9 to succeed in a claim for malignant melanoma of the skin or death from that condition. The instrument also affects the Department of Veterans’ Affairs and the Veterans’ Review Board, which must apply it as a binding rule. Legal practitioners, advocates, and medical professionals advising claimants are directly affected because they must understand the precise definitions and factor thresholds to build a case. For example, the latitude equivalent hours calculation requires careful reconstruction of a veteran’s posting and travel history, including time spent in different latitude zones. The sunburn factor requires evidence of painful erythema lasting at least 48 hours at the specific site where melanoma later developed. Medical reports will need to address that. The instrument also affects treating dermatologists and oncologists who may be asked to provide opinions on whether a melanoma arising at a particular site could be linked to documented sunburn episodes or cumulative exposure. The instrument does not affect the general public or civilian workers, except insofar as it may influence workers’ compensation or common law claims indirectly by setting a medical-scientific standard that courts and tribunals may cite as authoritative in non-military contexts. However, the instrument is specific to VEA and MRCA claims and has no direct legal force outside that framework.

The instrument imposes no direct duties on private individuals. Its legal effect is to define the conditions under which a claimant has a right to have malignant melanoma of the skin accepted as service-related. The key duty is on the Repatriation Medical Authority itself to determine the SoP based on sound medical-scientific evidence (section 8). The instrument recites that the RMA is of the view, on that evidence, that it is more probable than not that malignant melanoma can be related to relevant service. This foundation is a statement of the RMA’s satisfaction, which triggers the binding operation of the factors. The principal right created for claimants is that if at least one factor in section 9 exists and is related to the person’s relevant service (section 10), the decision-maker must find that the condition is connected to service on the balance of probabilities. This shifts the evidentiary burden away from the claimant having to prove a direct causal chain; compliance with a factor is sufficient. The right is contingent, however, on the factor being related to service. For factors 1 through 9, the factor itself (e.g., sunburns, PUVA therapy, immunosuppressive drugs) must have occurred in the context of the person’s service. The instrument does not require that the sunburn or sun exposure occurred during service; it only requires that the factor is related to the relevant service rendered by the person. This means a veteran who experienced sunburn while on leave during a posting to a tropical location may still have the factor related to service if the posting itself was part of service. The decision-maker must assess the connection. For factor 10 (inability to obtain appropriate clinical management), the right is narrower: it applies only where the melanoma was suffered or contracted before or during (but did not arise out of) relevant service. In other words, if a veteran already had melanoma before service and service-related factors prevented proper treatment, the subsequent worsening can be attributed. This is a form of aggravation provision. The instrument also gives decision-makers the right to rely on definitions and exclusions. For example, they must exclude melanocytic naevi from the definition, so a claim based on a benign mole would not succeed. Claimants have a right to have their claim assessed under this SoP once it is in force, and the earlier 2015 SoP no longer applies.

The instrument itself does not create penalties. Enforcement occurs through the broader VEA and MRCA frameworks. If a claimant knowingly provides false or misleading information about a factor,for example, falsely claiming to have had five sunburns at a specific site,they may be liable under section 135 of the VEA for an offence punishable by imprisonment or fine, or under the Criminal Code for fraud against the Commonwealth. The instrument does not change those penalties. The more immediate enforcement mechanism is administrative: claims are assessed by the Department of Veterans’ Affairs, and if the evidence does not satisfy the decision-maker that a factor exists, the claim will be rejected. The claimant may then seek review by the Veterans’ Review Board and ultimately the Administrative Appeals Tribunal or Federal Court. The instrument provides the legal test that those bodies must apply. A decision-maker who fails to apply the SoP correctly may have their decision set aside. There is no penalty for the decision-maker other than reversal on review. The instrument also contains a mechanism for incorporating other SoPs: if a factor refers to an injury or disease for which another SoP has been determined under subsection 196B(3) of the VEA (e.g., non-Hodgkin lymphoma), then the factors in that other SoP apply as in force from time to time (section 11). This means that to establish the existence of non-Hodgkin lymphoma as a factor, the claimant must also satisfy the SoP for that condition. This creates a cascading enforcement: the decision-maker must verify both that the person had the specified condition and that it is service-related under its own SoP. Failure to do so would be an error of law. The instrument does not set pecuniary penalties or compliance costs. The cost of enforcement falls on the taxpayer through the cost of DVA decision-making and tribunal/court proceedings. Claimants bear the cost of obtaining medical evidence to satisfy the factors, which can be substantial, particularly for the latitude equivalent hours calculation requiring detailed service records.

This SoP is made under subsection 196B(3) of the Veterans’ Entitlements Act 1986. It operates alongside the framework provisions of that Act, particularly section 120B, which requires that a claim for a condition not related to operational service be assessed in accordance with the applicable SoP. Where a claim relates to operational service, a different standard (reasonable hypothesis) and a different SoP (made under subsection 196B(2)) would apply. This instrument specifically addresses only the balance of probabilities standard, so it must not be used for operational service claims. It also interacts with the Military Rehabilitation and Compensation Act 2004: section 339 of that Act requires the application of SoPs determined under the VEA for claims under MRCA. This instrument applies to peacetime service under MRCA as defined in the schedule. It does not apply to hazardous service or British nuclear test defence service under the VEA, which are covered by separate SoPs or the reasonable hypothesis standard. The instrument repeals the previous SoP No. 103 of 2015. This means any claim lodged before 28 May 2024 but not yet determined may be assessed under the old or new SoP depending on transitional provisions in the VEA; however, the instrument itself states it applies to claims to which section 120B or section 339 applies, not specifying a date of lodgement. Generally, the SoP in force at the time of determination governs. Section 11 creates interaction with other SoPs: if a factor refers to an injury or disease (e.g., non-Hodgkin lymphoma, chronic lymphocytic leukaemia, Parkinson’s disease), that condition must itself satisfy its own SoP. This means the instrument incorporates by reference the definitions and factors from other legislative instruments. The practitioner must cross-check those separate SoPs. For example, if the claimed factor is non-Hodgkin lymphoma, the veteran must also establish that the lymphoma is service-related under the relevant SoP. This can complicate claims because the lymphoma itself may have a separate latency requirement or factor that must be proven. The instrument also interacts with the state workers’ compensation schemes indirectly, as it may be cited in other jurisdictions as evidence of what the medical community considers causal, but it has no binding force outside VEA/MRCA. The definitions, such as “sunburn” requiring 48 hours of painful erythema, may differ from common law definitions. It expressly refers to ICD-10-AM codes C43 and D03 for malignant melanoma, but states that the meaning in the instrument prevails over the code. This is important because ICD coding can change; the instrument fixes the meaning regardless of coding updates.

This instrument is a new legislative instrument registered as No. 35 of 2024. It repeals the previous Statement of Principles concerning malignant melanoma of the skin (Balance of Probabilities) No. 103 of 2015 (F2015L01318). The text of the instrument does not provide a detailed amendment history or explanatory memorandum. However, the fact that it is a replacement indicates that the RMA has reviewed the medical scientific evidence and determined that the previous instrument no longer reflects the current state of knowledge. The new instrument updates the factors and definitions. For example, the new instrument introduces a cumulative sunlight exposure factor calculated in latitude equivalent hours, which did not appear in the same form in the 2015 SoP (the 2015 SoP used a simpler measure of total hours of sunlight exposure without the latitude weighting). This is a significant change because it reduces the effective hours required at higher latitudes (multiplying by 0.5 for warm temperate, 0.25 for cool temperate) meaning a person who spent time in cooler climates needs more actual hours to reach the 4,500 threshold than someone in the tropics. The definition of sunburn is also refined: the previous SoP required “at least 5 episodes of sunburn” but did not specify duration. The new instrument adds “of at least 48 hours duration”, which is a stricter criterion. The PUVA therapy factor now requires at least 250 treatments and 15 years latency, whereas the 2015 SoP required “at least 6 months of PUVA therapy”. The instrument also adds new factors: undergoing solid organ or bone marrow transplantation, and treatment with methotrexate or azathioprine. These were not in the 2015 SoP. The new instrument also adds an inability to obtain appropriate clinical management factor, which was present in the 2015 SoP but now includes a note that it applies only to aggravation or material contribution. The definition of relevant service has been updated to refer to “peacetime service” under MRCA instead of “defence service” under MRCA (the 2015 SoP used “defence service (other than hazardous service and British nuclear test defence service)” under MRCA). The instrument does not include a transitional provision, so claims lodged after commencement must meet the new factors. The instrument also updates the ICD-10-AM reference to the Tenth Edition effective 1 July 2017, whereas the 2015 SoP likely referred to an earlier edition. For precise differences, one would need to compare the full text of No. 103 of 2015. There is no amendment history within this instrument because it is a new determination, not an amending instrument.

The instrument itself does not record any litigation history. However, Statements of Principles generally are frequently challenged in the Administrative Appeals Tribunal and the Federal Court. The most notable case in this area is Repatriation Commission v Miller [2010] FCAFC 55, which considered the standard of proof and the role of the SoP. That case is not cited in the instrument, but it remains relevant authoritative precedent. For the specific condition of malignant melanoma, there have been AAT decisions interpreting earlier SoPs, such as Re Cole and Repatriation Commission (AAT 2014). The new instrument is likely to generate litigation over the definition of sunburn (48 hours duration), the calculation of latitude equivalent hours, and the requirement that sunburns be “at the affected site”. The phrase “at the affected site” may be contentious because a single melanocytic lesion can arise from a sunburn at a different but adjacent site. The instrument also introduces the factor for methotrexate or azathioprine treatment within two years. Litigation may arise over whether the treatment was for a service-related condition. The transplantation factor may raise questions about whether the transplant itself was service-related. The instrument’s factor 10 (inability to obtain appropriate clinical management) has been litigated in other SoP contexts, and the clause that it applies only where the melanoma was suffered or contracted before or during (but not arising out of) relevant service will likely be tested. Claimants may argue that a melanoma that first appeared during service but was not caused by service should still be covered if they could not get timely treatment due to service obligations. The courts have generally required a clear causal link to the inability to obtain management. The instrument does not create new rights to litigate, but it provides a clearer framework. Given that this instrument only commences on 28 May 2024, no litigation specifically on this version has yet occurred. Practitioners should monitor the AAT and Federal Court for early test cases.

Several traps exist for the unwary. The sunburn factor requires “at least 5 sunburns at the affected site”. This means each sunburn must have occurred at the exact anatomical location where the melanoma later developed. A veteran with a melanoma on the left shoulder cannot rely on sunburns on the back or scalp. Additionally, sunburn is defined as painful erythema lasting at least 48 hours. A common reddening that resolves within 24 hours, or a sunburn that is not painful, does not count. Medical records may not document duration, making it difficult to prove. The cumulative sunlight exposure factor uses latitude equivalent hours, not raw hours. A veteran who served 10,000 hours in Melbourne (warm temperate, factor 0.5) would have only 5,000 latitude equivalent hours, which is above the 4,500 threshold. But a veteran who served 10,000 hours in Hobart (cool temperate, factor 0.25) would have only 2,500 hours, insufficient. The formula requires combing hours from each latitude zone and summing. A veteran who spent time across multiple postings must calculate each separately. The instrument excludes melanocytic naevi (moles), but a biopsy report may not distinguish between a dysplastic naevus and an early melanoma in situ. The definition of malignant melanoma includes melanoma in situ, but the factor must still be established. The PUVA therapy factor requires at least 250 treatments. Many patients receive fewer treatments, so this factor is likely only relevant for those with severe psoriasis treated in the 1970s-1990s. The chemotherapy drugs methotrexate and azathioprine must have been administered within two years before clinical onset. If the treatment ceased more than two years prior, it does not qualify. The factor for non-Hodgkin lymphoma requires that the lymphoma be present at least one year before melanoma onset; mere diagnosis of lymphoma after melanoma onset is irrelevant. Factor 10 (inability to obtain appropriate clinical management) applies only to aggravation, not to initial causation. The claimant must have had melanoma before or during service (but not arising from service) and then service-related factors prevented proper treatment. This is a narrow gateway. The definition of terminal event includes pneumonia, respiratory failure, cardiac arrest, circulatory failure, or cessation of brain function. This means death from malignant melanoma can be claimed even if the immediate cause is one of those events, provided melanoma contributed. But the contribution must be more than negligible. The relationship to service requirement (section 10) is deceptively broad: the factor itself must be related to relevant service, not the melanoma. For example, if a veteran developed non-Hodgkin lymphoma due to an exposure during service, that factor can then be used to link the melanoma, even if the melanoma had no other service connection. This creates a chain of causation that can be exploited, but also requires proving the underlying condition’s service connection under its own SoP.

For a claimant or their representative, the first step is to identify which factor(s) may apply and gather evidence to support each element. For the sunburn factor (factor 1), obtain service medical records, personal diaries, or witness statements documenting at least five distinct episodes of sunburn at the site of the melanoma, each with pain and lasting at least 48 hours, occurring at least five years before the melanoma was diagnosed. A dermatologist’s opinion linking the site to documented sunburns may be necessary. For the cumulative sunlight exposure factor (factor 2), compile a detailed history of the person’s locations and hours of outdoor activity during service, noting latitude zones. Military postings, travel records, and logbooks can be used. Multiply hours by the appropriate weighting factor and sum to reach at least 4,500. Unprotected skin means no sunscreen, no clothing, no shade. Proving this may be difficult if records are sparse; a service history showing tropical deployment with outdoor duties might suffice. For tanning device factor (factor 3), evidence of use of solariums or sunbeds on at least ten occasions, with first use more than five years before melanoma onset. Receipts, membership cards, or witness statements may serve. For PUVA therapy (factor 4), medical records showing psoralen plus UVA treatment, at least 250 sessions, with first session at least 15 years before melanoma. For transplantation (factor 5), records of solid organ or bone marrow transplant before melanoma diagnosis. For methotrexate or azathioprine (factor 6), pharmacy or medical records showing prescription within two years before melanoma. For non-Hodgkin lymphoma or CLL (factors 7,8), pathological confirmation with date of diagnosis at least one year before melanoma. For Parkinson’s disease (factor 9), neurological diagnosis at least two years before melanoma. For inability to obtain appropriate clinical management (factor 10), evidence that the person had melanoma before or during service (but not caused by service) and that service conditions prevented them from receiving timely treatment, leading to worsening. This might include posting to a remote location, lack of access to dermatologists, or refusal of leave. The decision-maker must be satisfied that the factor is related to the person’s relevant service (section 10). This means the sunburn, exposure, or medical treatment must have occurred because of service duties or conditions. A sunburn on leave in a non-service context may not be related unless the leave was incidental to service. Legal representatives should review the definition of relevant service carefully: peacetime service under MRCA or eligible war service (non-operational) under VEA. If the veteran has operational service, a different SoP (reasonable hypothesis) may apply. The claim must specify which limb of relevant service is engaged. Because the instrument incorporates other SoPs by reference (section 11), the claimant may need to separately satisfy the SoP for the underlying condition (e.g., non-Hodgkin lymphoma). That means gathering evidence to link that condition to service as well. The easiest factors to prove may be factor 5 (transplantation) or factor 6 (immunosuppressive drugs), if the person had a service-related renal transplant or treatment for a service-related autoimmune condition. Factor 1 and 2 require careful calculation and may be contested. The instrument provides no deeming provisions; evidence must be on the balance of probabilities. Practitioners should also ensure that the melanoma is within the defined scope: primary malignant melanoma of the skin, not of the eye or mucosa. A pathology report confirming the diagnosis and excluding other neoplasms is essential. The claim must be lodged under the VEA or MRCA, and the SoP will be applied as at the date of determination. If the claim is lodged after 28 May 2024, this instrument applies. Expediting a claim before that date may preserve the old SoP if it is more favourable, but only if the claim is determined before the new one commences.