Statement of Principles concerning malignant neoplasm of the larynx (Balance of Probabilities) (No. 42 of 2022)

Malignant neoplasm of the larynx is defined in section 7(2) as a primary malignancy of the mucosa of the larynx, extending from the lower border of the hypopharynx to the upper border of the trachea. It excludes carcinoid tumour, Hodgkin’s lymphoma, non-Hodgkin lymphoma, and soft tissue sarcoma. The larynx is divided anatomically into supraglottis, glottis and subglottis. While the ICD-10-AM code C32 is assigned, the instrument’s own meaning prevails. Death from the condition includes death contributed to by a terminal event such as pneumonia, respiratory failure, cardiac arrest, circulatory failure, or cessation of brain function.

Relevant service is defined in the Dictionary as 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 limits the instrument’s application to categories of service where the balance of probabilities standard applies; operational service and hazardous service are governed by a separate reasonable hypothesis Statement of Principles.

Pack-year is defined as 20 cigarettes per day for one year, or an equivalent amount of tobacco products. One pack-year equals 7,300 grams of smoking tobacco by weight. The instrument provides a formula: pack-years = (cigarettes per day / 20) × years smoked. This metric is used for factor 9(1) which requires at least 3 pack-years.

Exposure to second-hand smoke is defined as being in an enclosed space and inhaling smoke from burning tobacco products or smoke exhaled by another person who is smoking. Factor 9(2) requires a cumulative total of at least 10,000 hours of such exposure, starting at least 10 years before clinical onset, and if exposure ceased, onset within 15 years of cessation. This is a high threshold: 10,000 hours equates to roughly 417 days of continuous exposure, but it is cumulative, so it may be met over years of shared accommodation or workplaces.

Asbestos exposure is divided into two factors based on location. For enclosed spaces, factor 9(3) requires at least 2,000 cumulative hours of inhaling respirable asbestos fibres at the time material was being applied, removed, cut, drilled, dislodged or disturbed, with first inhalation at least 10 years before onset. For open environments, factor 9(4) requires at least 6,000 hours under the same activity conditions. The note indicates that disturbance of debris or dust contaminated with asbestos already present may count.

Alcohol consumption is measured in kilograms of pure alcohol, using the Australian Standard of 10 grams per standard drink. Factor 9(6) requires at least 150 kilograms within any 10-year period (that is, 15,000 standard drinks over 10 years, averaging about 4 drinks per day), consumed at least 5 years before onset, and if ceased, onset within 40 years of cessation. This is a substantial but not prohibitive threshold.

Maté consumption (factor 9(11)) requires drinking the herbal infusion on more days than not for at least 10 years, with onset within 10 years of cessation. Opium inhalation (factor 9(13)) requires average weekly use for at least 10 years. Gastro-oesophageal reflux disease (factor 9(12)) requires the condition to have been present for at least the 10 years before onset. Inability to obtain appropriate clinical management (factor 9(14)) applies only to material contribution or aggravation, not initial causation, and is restricted to cases where the disease was suffered or contracted before or during (but did not arise out of) relevant service.

The instrument also provides that if a factor refers to an injury or disease covered by another Statement of Principles, that other instrument applies according to its terms. This means, for example, that the factor of solid organ transplantation (factor 9(8)) would incorporate the definitions and criteria from the SoP for that condition.

This instrument directly affects veterans and members of the Australian Defence Force who have rendered relevant service as defined - that is, eligible war service (non-operational), defence service (non-hazardous and non-British nuclear test), or peacetime service under the MRCA - and who make claims for malignant neoplasm of the larynx. It also affects their dependants who may claim death benefits based on the same condition. The instrument does not apply to claims for operational service, hazardous service, or British nuclear test defence service, where the standard of proof is reasonable hypothesis and a separate SoP (the Reasonable Hypothesis version) would govern. Therefore, veterans who served in combat zones or on hazardous service are not captured by this instrument; they would rely on the companion instrument made under subsection 196B(2) of the VEA.

The primary decision-makers affected are delegates of the Repatriation Commission and the Military Rehabilitation and Compensation Commission, who must apply the factors set out in section 9 when determining claims. The instrument binds them: if a claimant satisfies at least one factor and that factor is related to relevant service, the decision-maker must find the disease is service-related, unless contrary medical evidence displaces the presumption (though in practice the SoP is treated as determinative). The instrument also affects medical practitioners providing evidence for claims, as they need to understand the definitions and thresholds when preparing reports - for example, specifying the duration and intensity of alcohol consumption or the cumulative hours of asbestos exposure.

Legal practitioners and advocates representing veterans will use this instrument to structure their submissions, ensuring that each element of a factor is addressed. For example, for the smoking factor, they must show 3 pack-years, commencement at least 10 years before clinical onset, and if smoking ceased, that onset occurred within 15 years. For the second-hand smoke factor, they must prove cumulative hours of exposure in enclosed spaces. The instrument therefore creates evidentiary burdens for claimants, but also provides a clear pathway to acceptance if those burdens are met.

The instrument does not affect the general public or medical professionals outside the claims system. It is a specialised tool within the veterans’ compensation framework, and its effect is limited to the determination of entitlement to pension, compensation, and other benefits under the VEA and MRCA.

The instrument does not impose duties on individuals in the ordinary sense; rather, it sets out the evidentiary conditions under which a claimant has the right to have their malignant neoplasm of the larynx accepted as service-related. The key right is that if a claimant can establish the existence of any one of the fourteen factors in section 9, and that factor is related to their relevant service, the decision-maker must find the connection on the balance of probabilities. This is a significant right because it overrides the need for the claimant to prove causation through expert evidence - the SoP itself constitutes the medical-scientific basis.

The primary duty falls on the decision-maker. Section 9 is mandatory: the words “must exist before it can be said” make clear that the factors are exhaustive. A decision-maker cannot accept a claim based on a factor not listed, nor can they refuse a claim if a listed factor is satisfied (subject to the relationship to service requirement in section 10). However, the decision-maker retains the duty to assess whether the factor has been proven on the evidence; the instrument does not relieve them of the need to weigh evidence.

Section 10 imposes a secondary duty: the factor must be related to the person’s relevant service. For example, if a claimant smoked for 30 pack-years but never while on service, the factor is not related to relevant service, and the claim would fail unless another factor ties in. Section 10(2) specifically limits factor 9(14) (inability to obtain appropriate clinical management) to cases of material contribution or aggravation where the disease existed before or during service but did not arise out of service. That factor cannot be used to establish initial causation.

Claimants have a duty to present evidence sufficient to satisfy the thresholds. The instrument is silent on the standard of evidence, but in practice, service records, medical reports, and statutory declarations are used. There is no duty to submit to medical examinations, but failure to provide evidence may result in rejection.

The Repatriation Medical Authority has the duty to ensure the SoP is based on sound medical-scientific evidence, as recited in section 8. That section is a formal recitation and not an ongoing duty - the instrument is conclusive once made. However, the Authority may later revoke or replace it.

The instrument also incorporates by reference other SoPs where a factor refers to another injury or disease (section 11). This creates a duty for decision-makers to cross-reference the relevant SoP for conditions such as solid organ transplantation, HIV infection, or gastro-oesophageal reflux disease. For instance, to satisfy factor 9(9) (HIV infection), the decision-maker must apply the SoP for HIV, which will have its own definitions and factors.

The instrument itself contains no penalties. It is not a regulatory instrument imposing obligations on individuals; it is a determinative tool within the compensation system. Enforcement is indirect: if a decision-maker misapplies the instrument, the claimant may seek review by the Veterans’ Review Board and then the Administrative Appeals Tribunal, and ultimately appeal to the Federal Court on a question of law. The instrument is binding, so an error of law in applying it would be grounds for setting aside a decision.

There are no criminal penalties for providing false evidence, but the general law on fraud applies to veterans’ claims. A person who knowingly provides false information to satisfy a factor could be prosecuted under section 135.1 of the Criminal Code (making false statements to a Commonwealth entity). Additionally, the Repatriation Commission may recover overpayments and cancel pensions.

For decision-makers, failure to apply the SoP correctly may lead to internal administrative action, but the instrument does not provide for fines or sanctions against them.

The instrument replaces the 2013 SoP, so any decisions made under the old instrument that are still subject to review may need to be reassessed if the new instrument changes the factors. However, the commencement date (30 May 2022) means that claims determined after that date must apply this instrument. This creates a risk for claimants whose claims were lodged before the new instrument but determined after: the new, potentially more restrictive factors may apply. Section 5 states the instrument applies to a claim to which s120B VEA or s339 MRCA applies. Section 120B(1) of the VEA requires the Commission to apply any relevant SoP in force at the time of determining the claim. So if the claim was lodged in 2021 but determined in June 2022, this instrument applies. This is a procedural trap for claimants who might have expected the old, possibly more generous, factors to apply.

This instrument is made under the VEA and MRCA and sits within the veterans’ compensation framework. It interacts with several other laws and instruments.

First, it interacts with its predecessor: the SoP No. 62 of 2013 is repealed (section 4). Any pending claims where a decision has not yet been made will be determined under this new instrument, as noted above. Claimants who relied on factors in the old SoP that are no longer present (or have higher thresholds) may be disadvantaged.

Second, it interacts with the companion Reasonable Hypothesis SoP made under subsection 196B(2) of the VEA. That instrument applies to operational service, hazardous service, and British nuclear test defence service, where the standard of proof is reasonable hypothesis. The two SoPs are mutually exclusive based on the type of service; they may have different factors and different thresholds. For example, the reasonable hypothesis SoP might require only 1 pack-year of smoking, whereas this balance-of-probabilities SoP requires 3 pack-years. A veteran with mixed service (operational and peacetime) may need to rely on both instruments for different periods of service.

Third, section 11 incorporates other SoPs by reference. If a factor in section 9 refers to an injury or disease for which another SoP exists (e.g., solid organ transplantation, HIV infection, gastro-oesophageal reflux disease), the decision-maker must apply that other SoP’s definitions and factors. This means the claimant must satisfy not only the primary factor in this instrument but also the requirements of the incorporated SoP. For example, to satisfy factor 9(12) (gastro-oesophageal reflux disease), the decision-maker must refer to the SoP for that condition, which likely has its own factors and definitions. This creates a cascading effect.

Fourth, the instrument interacts with the Safety, Rehabilitation and Compensation Act 1988 (SRCA) only indirectly - a veteran may have a parallel claim under the SRCA for a work-related injury, but the SoP does not apply to SRCA claims. It is specific to VEA and MRCA.

Fifth, the instrument does not interact with state workers’ compensation laws or general tort law. It has no effect on civil litigation for asbestos exposure, for example, though the evidentiary thresholds might be used in other contexts.

Sixth, the instrument defines its own meaning of malignant neoplasm of the larynx, which overrides the ICD-10-AM code for the purposes of this SoP. This can create confusion if medical reports use the ICD code but the condition is excluded under the SoP’s definition (e.g., a carcinoid tumour coded as C32 would not qualify).

The instrument itself does not contain any amendment history; it is a single instrument that repeals and replaces the previous one. The only historical reference is in section 4: it repeals the Statement of Principles concerning malignant neoplasm of the larynx No. 62 of 2013 (Federal Register of Legislation No. F2013L01650). That earlier instrument was made under the same authority (subsection 196B(3) of the VEA) and had been in force since 2013. This new instrument commences on 30 May 2022 and has not been amended since its commencement. No further amendments are listed in the source. The instrument is current as at its date of issuance, but the user should check the Federal Register of Legislation for subsequent amendments post-2022. The Repatriation Medical Authority has not indicated any revision of this SoP within the text.

The source does not cite any litigation history. No cases are mentioned, and we cannot invent them. However, as a matter of general knowledge (which we may refer to without naming cases), Statements of Principles under the VEA have been the subject of extensive litigation in the Administrative Appeals Tribunal and the Federal Court, particularly regarding the interpretation of factors and the standard of proof. Claimants have challenged whether certain factors are supported by sound medical-scientific evidence, but the Repatriation Medical Authority has a broad discretion. The courts have generally deferred to the Authority. For this specific SoP, no reported case is referenced in the instrument. Users should be aware that the predecessor SoP may have been considered in past decisions, but those decisions are not binding on the new instrument. The instrument itself is self-executing; any challenge to its validity would need to be brought on jurisdictional grounds, such as an alleged failure to consider sound medical-scientific evidence. Given that the instrument recites that it is based on such evidence (section 8), a challenge would face a high hurdle. Practitioners should check for any Tribunal or court decisions that interpret the factors in this instrument since its commencement.

1. Definition exclusions: The instrument excludes carcinoid tumour, Hodgkin’s lymphoma, non-Hodgkin lymphoma, and soft tissue sarcoma. A claimant diagnosed with one of these but erroneously coded as C32 will be rejected unless they obtain a corrected diagnosis. The ICD-10-AM code is only a cross-reference; the SoP’s own definition prevails.

2. Smoking window: For the smoking factor (9(1)), if the claimant ceased smoking, the clinical onset must occur within 15 years of cessation. This is a relatively short window. A veteran who quit smoking 20 years before developing laryngeal cancer will not satisfy this factor unless they also satisfy another factor (e.g., alcohol or asbestos).

3. Second-hand smoke hours: The 10,000-hour requirement is high. Even living with a smoking spouse for 20 years at, say, 8 hours per day in enclosed space = 8 × 365 × 20 = 58,400 hours. So it is achievable, but careful calculation is needed. The requirement that exposure must be in an enclosed space is key - outdoor exposure does not count.

4. Asbestos open vs enclosed: The open environment threshold (6,000 hours) is triple the enclosed threshold (2,000 hours). Claimants who worked with asbestos outdoors (e.g., demolition in open air) need more hours. The note says disturbance of debris already present can count, but the activity must be “applying, removing, cutting, drilling, dislodging or disturbing” - mere presence in an area with asbestos is not enough unless there is disturbance.

5. Alcohol calculation: 150 kilograms within any 10-year period is 15,000 standard drinks, averaging 4.1 drinks per day. This might be met by heavy drinkers, but the formula uses grams of alcohol, not number of drinks. Advocates should convert beer, wine, spirits into grams carefully. The 40-year cessation window is generous.

6. Maté consumption: “On more days than not” for at least 10 years is ambiguous. It means the person drank maté on at least 183 days per year (more than half). This requires daily records or lifestyle evidence. The cessation window is only 10 years, shorter than for smoking and alcohol.

7. Opium inhalation: The factor requires inhalation of opium (derived from the Papaver somniferum seedpod) at least weekly for 10 years. It does not cover synthetic opioids like heroin? The definition is specific to opium latex. Heroin is derived from morphine but is not the same as opium. This may be a narrow factor.

8. Inability to obtain clinical management (factor 9(14)): This factor applies only to material contribution or aggravation, not initial causation. It also requires that the disease was suffered or contracted before or during service but did not arise out of service. This is a limited aggravating factor. Claimants cannot use it to establish a new condition.

9. Relationship to service: Every factor must be related to the person’s relevant service. A factor that is present but entirely pre-service (e.g., heavy drinking before enlistment) will not count unless the drinking continued during service. For some factors like solid organ transplantation, the link to service may be difficult to establish.

10. Cumulative hours and multiple factors: If a claimant satisfies more than one factor, that is fine, but if they fall short by a small margin on one factor, they may not satisfy another. For example, a claimant with 9,000 hours of second-hand smoke and 1,800 hours of enclosed asbestos may fail both thresholds.

11. Terminal event definition: For death claims, the death must be contributed to by malignant neoplasm of the larynx. The terminal event list includes pneumonia, respiratory failure, etc. But if death is from an unrelated cause (e.g., car accident) while the cancer is present, the claim may fail.

12. Cross-referencing other SoPs: Factors that refer to other conditions (e.g., GERD, HIV) require the claimant to satisfy the definition in the relevant SoP. For GERD, that SoP may require specific diagnostic criteria or a particular duration. This adds layers of complexity.

Compliance is relevant to two audiences: claimants and their representatives, and decision-makers.

For claimants/representatives: To establish a connection, identify which factor(s) apply and gather evidence meeting the thresholds. For smoking, obtain records of tobacco consumption and calculate pack-years. If the veteran smoked 15 cigarettes per day for 10 years, that is (15/20) × 10 = 7.5 pack-years, satisfying the 3 pack-year threshold. Ensure the onset date is at least 10 years after starting smoking and, if ceased, check the 15-year window. For second-hand smoke, obtain statements from family, friends, or workplace records showing cumulative hours in enclosed spaces. For asbestos, secure employment records, witness statements, or rosters documenting the dates, duration, and enclosed vs open nature of exposure. For alcohol, compile evidence of consumption (e.g., daily diaries, purchase records, medical notes of alcohol abuse) and calculate total grams over any 10-year period. 150 kg is a large amount; a typical heavy drinker consuming 6 standard drinks (60g) per day for 10 years would accumulate 60g × 365 × 10 = 219,000g = 219 kg. That satisfies the factor. For maté, obtain evidence of near-daily consumption for at least 10 years. For opium, a pattern of weekly use for 10 years. For GERD, medical records showing diagnosis at least 10 years before onset. For HIV, a positive test and appropriate SoP. For HPV, evidence of persistent infection of laryngeal epithelium (usually from biopsy). For inability to obtain clinical management, evidence that the veteran was unable to access treatment due to service circumstances (e.g., remote posting) after the disease was contracted.

Document the clinical onset date precisely - this is a critical reference point for time windows. Medical records stating the date of diagnosis (or first symptoms) should be obtained.

For decision-makers: Apply the factors strictly. Verify the thresholds (pack-years, hours, grams, years). Cross-check the definitions in the Dictionary. If a factor refers to another condition, locate the current SoP for that condition and apply it. For factor 9(14), ensure it is only used for aggravation or material contribution, not initial causation. Confirm that each factor is related to the person’s relevant service - this may require service records showing the veteran was exposed to the factor during service (e.g., smoking while in the military, asbestos exposure in a service workplace). If the factor existed pre-service but did not continue during service, it cannot be related.

Maintain a checklist for each factor. For asbestos, distinguish between enclosed and open environments; the location might be ambiguous if the veteran worked in a semi-enclosed shed. Interpret “enclosed space” reasonably. For second-hand smoke, “enclosed space” means a building or vehicle; outdoors does not count. For coal/fossil fuel smoke, the space must be enclosed.

Document the reasoning in the decision record, citing the relevant subsection of section 9 and explaining how the evidence satisfies each element. If a factor is not met, specify which element fails (e.g., “the claimant smoked 2 pack-years, which is less than the required 3 pack-years”).

Finally, be aware that the instrument applies to any claim determined on or after 30 May 2022, regardless of the claim lodgement date. If a claim was lodged before that date but not yet determined, apply this instrument. The previous SoP is repealed and cannot be relied upon.