Statement of Principles concerning mesothelioma (Balance of Probabilities) (No. 42 of 2024)

The central concept is the “factor” - a medical-scientific circumstance that must exist before the decision-maker can find that mesothelioma is connected with relevant service on balance of probabilities. Each factor prescribes either a minimum latency period (time from first exposure to clinical onset) or a cumulative dose or duration. Clinical onset is the point at which mesothelioma becomes manifest and capable of diagnosis; the instrument does not define it explicitly but relies on standard medical usage. Latency is critical: for asbestos inhalation factors (1,2,8) the first inhalation must have occurred at least 20 years before clinical onset. For fluoro-edenite and erionite the latency is at least 25 years before clinical onset of pleural or peritoneal mesothelioma. For ionising radiation and radiotherapy the latency is at least 10 years. The concept of enclosed space (factor 1) is not defined; it will be interpreted by decision-makers based on common meaning and evidence. In contrast, factor 2 requires an open environment and a cumulative total of 1,000 hours. The distinction matters: an enclosed space exposure does not require a minimum number of hours, only that the first inhalation occurred at least 20 years before onset and that the exposure happened while asbestos-containing material was being applied, removed, dislodged, cut or drilled. The firefighting factor (8) defines firefighting broadly as being involved in the direct combat of fires, including control, extinguishing, mopping-up, prevention, or training activities involving fires. The instrument introduces specific mineral fibres: fluoro-edenite and erionite. These are naturally occurring fibrous minerals not classed as asbestos but morphologically similar. The factor for fluoro-edenite requires inhalation at a concentration of at least 1.76 fibres per litre on more days than not for at least 10 years, at least 25 years before clinical onset. For erionite, the threshold is 0.3 fibres per cubic centimetre every day for at least 10 years, also 25 years latency. The cumulative equivalent dose of ionising radiation is defined using the sievert unit, excluding normal background radiation but including therapeutic, diagnostic, occupational, cosmic at high altitude, and nuclear explosion/accident radiation. The radiotherapy factor is narrower: it must be ablative radiotherapy for cancer, at least 10 years before onset, and the mesothelioma must occur within the original field of radiation. The inability to obtain appropriate clinical management factor is unique: it applies only to worsening of an existing mesothelioma that was suffered or contracted before or during service but did not arise out of service. The dictionary defines terminal event to include pneumonia, respiratory failure, cardiac arrest, circulatory failure, or cessation of brain function - this clarifies that death from mesothelioma includes cases where another condition contributed if mesothelioma was a material contributor. The definition of relevant service is critical and restrictive: it covers eligible war service under the VEA that is not operational service, defence service under the VEA that is not hazardous service or British nuclear test defence service, and peacetime service under the MRCA. This means that veterans with operational service (the most common category for Vietnam, Gulf, etc.) cannot use this SoP; they would use the reasonable hypothesis version made under subsection 196B(2) of the VEA. The instrument is therefore aimed at the more difficult standard of proof for non-operational claims.

The primary affected persons are veterans who have rendered eligible war service that is not operational service, members of the Defence Force who have rendered defence service that is not hazardous service or British nuclear test defence service, and members covered by the MRCA who have peacetime service. This includes, for example, veterans who served in Australia during peacetime but were exposed to asbestos in naval dockyards or in military accommodation, or members who served in peacekeeping operations classified as peacetime service under the MRCA. The instrument also affects dependants claiming in respect of a veteran’s or member’s death from mesothelioma, because the death factor (section 7(5)) incorporates terminal events contributed to by mesothelioma. Beyond claimants, the instrument affects decision-makers in the Department of Veterans’ Affairs and the Military Rehabilitation and Compensation Commission who must apply these factors when determining claims. It binds medical advisers and independent experts who prepare reports on exposure history, latency, and causation - they must be familiar with the specific definitions, especially for cumulative dose calculations and fibre concentrations. Legal practitioners representing veterans or the Commonwealth must understand the interplay between this SoP and the reasonable hypothesis version (the one for operational service) to avoid using the wrong standard. The instrument also affects the Repatriation Medical Authority itself, which is responsible for keeping the SoP up to date; the 2024 version replaced the 2015 version, meaning any claim lodged after 23 July 2024 must be assessed under the new factors. Medical researchers and epidemiologists may be indirectly affected because the SoP’s factor list is based on sound medical-scientific evidence and could influence medical literature acceptance. The instrument has a limited jurisdictional scope: it applies only to claims under the VEA and MRCA, not to claims under the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 or state workers’ compensation schemes. However, state tribunals sometimes adopt these SoPs as persuasive authority. The firefighting factor is new compared to the 2015 version (which did not include it), so veterans who served as firefighters in the military or in civilian firefighting roles during peacetime service now have a clearer evidentiary pathway. The fluoro-edenite and erionite factors are also relatively specialised, affecting those who served in areas such as Sicily or Turkey/central Anatolia, though the instrument notes that confirmed cases from those fibres have been restricted to specific regions. Overall, the pool of potential claimants is smaller than those with operational service, but the stakes are high because mesothelioma is almost universally fatal and compensation can be substantial.

The instrument does not impose duties on claimants in the traditional sense; rather it establishes the evidentiary requirements that must be met for a claim to succeed. The right of a veteran or member is to have their claim determined on balance of probabilities using these factors, provided they have relevant service as defined. The duty on the RMA is to determine the factors on sound medical-scientific evidence - they have done so by issuing this instrument. The duty on the decision-maker (the Repatriation Commission or MRCC) is to apply the instrument strictly: they cannot accept a claim for mesothelioma related to relevant service unless at least one factor in section 9 exists and that factor is related to the service (section 10). The claimant bears the evidentiary burden of proving on the balance of probabilities that a factor exists. This is a civil standard, more favourable than the criminal standard but still requiring persuasive evidence. For the asbestos inhalation factors (1 and 2), the claimant must show that asbestos fibres were being applied, removed, dislodged, cut or drilled. This may require witness statements, work records, or expert reconstruction of exposure scenarios. For the cumulative hours factor (2), the claimant must prove at least 1,000 hours of such exposure. That is a significant hurdle: 1,000 hours is roughly six months of full-time work, but if the exposure was intermittent, it may take years to accumulate. For the enclosed space factor (1), there is no minimum hours, but the claimant must prove the activity occurred in an enclosed space. The right to rely on having asbestosis at clinical onset (factor 3) is significant because it avoids proving direct exposure to a latency period; asbestosis itself must be proven under its own Statement of Principles. The right to rely on the firefighting factor (8) is new and requires proof of at least 1,000 hours of firefighting and that the first firefighting occurred at least 20 years before clinical onset. The instrument gives no right to rely on simple exposure to asbestos without meeting the specific conditions; for example, occasional outdoor exposure without meeting the 1,000-hour threshold will not suffice. The right to claim for death from mesothelioma includes cases where a terminal event (pneumonia, respiratory failure, etc.) was contributed to by mesothelioma. This means a claimant does not need to prove that mesothelioma was the sole cause of death. The inability to obtain appropriate clinical management factor (9) imposes a special relationship rule: it applies only to material contribution or aggravation where the mesothelioma was suffered or contracted before or during service but did not arise out of service. This is a limited right to claim worsening, not initial causation. The instrument also cross-references other Statements of Principles (section 11) - meaning if a factor refers to an injury or disease covered by another SoP, the factors of that other SoP apply as in force from time to time. This dynamic incorporation imposes a duty on practitioners to keep up with amendments to other SoPs.

This is not a penal instrument; it does not create criminal offences or civil penalties. It is a standard-setting instrument for claim determinations. The only “penalty” for a claimant who fails to meet the factors is the denial of the claim - no further sanction applies. However, making a false or misleading statement in support of a claim could attract penalties under the Criminal Code (Cth) or under the VEA for fraud. The instrument itself does not address enforcement; that lies with the compensation schemes. For decision-makers, failure to correctly apply the factors or misinterpreting the definitions could lead to administrative review by the Veterans’ Review Board and ultimately the Administrative Appeals Tribunal or the Federal Court. If a decision-maker applies a repealed version (No. 105 of 2015) after 23 July 2024, the decision would be legally flawed and set aside on review. The Repatriation Medical Authority has no enforcement role; its function is confined to determining and issuing Statements of Principles. The instrument is a disallowable legislative instrument under the Legislation Act 2003, meaning it is subject to parliamentary scrutiny. If either house of Parliament disallows it within the disallowance period, the SoP would cease to have effect and the previous 2015 version would be revived (subject to the repeal being itself repealed). That is a rare outcome. The practical enforcement of the SoP is through the claims process: the onus is on the claimant to produce evidence that satisfies each element of a factor. If the claimant cannot do so, the claim is refused. There is no penalty for lodging a claim that fails, unless it is frivolous or vexatious. The instrument also has no provisions for review or appeal within itself; those are found in the parent Acts. Therefore, the enforcement landscape is entirely civil and administrative, not criminal. The one quasi-penalty aspect is that the SoP sets a high evidentiary bar, effectively “penalising” claimants who cannot document their exposure history thirty or more years ago. But that is an inherent feature of latent disease claims, not a punitive measure. The instrument’s purpose is to standardise medical causation, not to punish.

This Statement of Principles is made under subsection 196B(3) of the Veterans’ Entitlements Act 1986 and also applies to claims under section 339 of the Military Rehabilitation and Compensation Act 2004. It sits within a statutory framework that distinguishes between standard of proof: subsection 196B(2) SoPs apply to claims where the standard is reasonable hypothesis (operational service); subsection 196B(3) SoPs apply to claims where the standard is balance of probabilities (non-operational service). This SoP interacts directly with the VEA and MRCA by providing the evidentiary content for the causation requirement. It does not replace the parent Acts; rather, it supplements them. For a claim to succeed, the applicant must also meet the other eligibility conditions in the VEA or MRCA - such as being a veteran or member, having relevant service, and being within the claim period. The instrument also interacts with the common law and administrative law principles of proof. The balance of probabilities standard is a known common law standard, and the SoP does not alter it; it merely specifies what must be proved to satisfy it. The instrument incorporates the International Statistical Classification of Diseases and Related Health Problems, Tenth Revision, Australian Modification (ICD-10-AM) by reference to code C45. This means that medical evidence should preferably use that coding, but the definition of mesothelioma in the SoP (section 7(2)) is the operative one, not the ICD code. The SoP also cross-references other Statements of Principles under section 11: if a factor (such as asbestosis factor 3) refers to an injury or disease that has its own SoP, the factors of that SoP apply as in force from time to time. This creates a dynamic interlocking system: the asbestosis SoP may itself be amended, and those amendments automatically flow into this SoP. The instrument repeals No. 105 of 2015. Any claim determined before 23 July 2024 would have been decided under the 2015 version. If a claim is pending on that date, the decision-maker will apply the new SoP unless transitional arrangements apply (none are specified in this instrument, so the commencement date governs). The instrument does not interact with state workers’ compensation laws or the Safety, Rehabilitation and Compensation Act (SRCA) - those schemes have their own causation rules. However, the RMA’s SoPs are sometimes used as persuasive authority in other contexts, including in civil tort litigation for asbestos exposure. But that is an indirect interaction, not statutory. The Veterans’ Entitlements Act 1986 itself provides for review rights under Part X, and the decisions applying this SoP are reviewable. The Administrative Appeals Tribunal Act 1975 will govern merits review. The Judiciary Act 1903 or the Federal Court of Australia Act 1976 may govern judicial review on questions of law. There is also interaction with the Evidence Act 1995 (Cth) insofar as evidentiary rules apply in tribunal proceedings, though tribunals are not bound by the rules of evidence. The instrument does not override any human rights or discrimination laws. It is a narrow instrument focused on medical causation.

This instrument itself is the sole amendment recorded. It is No. 42 of 2024, made on 21 June 2024, commencing on 23 July 2024. It repeals the earlier Statement of Principles concerning mesothelioma No. 105 of 2015 (Federal Register of Legislation No. F2015L01320). The 2015 version had itself replaced earlier versions; the first SoP for mesothelioma would likely have been made in the 1990s when the SoP system was established under the Veterans’ Entitlements Act 1986. The amendment history of the 2015 version is not disclosed in this instrument, but it would have been amended by declaration or revocation by the RMA over time. What is relevant is that the 2024 version introduces new factors: firefighting (factor 8) is likely new - the 2015 version did not include firefighting as a standalone factor. The 2015 version also may have had different thresholds for the open-environment factor - the 2024 version sets a cumulative 1,000 hours for asbestos inhalation in an open environment. The 2015 version may have had a lower threshold (e.g., 500 hours) or a different latency requirement. The fluoro-edenite and erionite factors are relatively recent additions to RMA SoPs in general; the 2024 version includes them. The ionising radiation factor (factor 6) uses a cumulative equivalent dose of 0.5 sievert; earlier versions may have used a different dose threshold. The radiotherapy factor (factor 7) has been refined to specify ablative radiotherapy for cancer. The inability to obtain clinical management factor (factor 9) has been present in some previous SoPs. The amendment history demonstrates the RMA’s ongoing evaluation of medical-scientific evidence. The repeal of the 2015 version means that all new claims after 23 July 2024 must be assessed under the 2024 factors. However, the 2015 version remains relevant for claims lodged before that date that have not yet been determined, depending on transitional provisions in the VEA - but the instrument does not contain a saving clause, so likely the new SoP applies to all determinations made on or after commencement. It is worth checking the date of the decision, not the date of claim, as the standard practice is that the SoP in force at the time of the decision applies. The instrument is a legislative instrument and is subject to disallowance; if disallowed, the 2015 version would revive. No such disallowance has occurred. The amendment history is sparse because the RMA issues consolidated replacement SoPs rather than amending existing ones incrementally.

The instrument itself does not reference any case law. However, Statements of Principles concerning mesothelioma have been extensively litigated in the Veterans’ Review Board, the Administrative Appeals Tribunal, and the Federal Court over many years. Key areas of dispute have included the interpretation of “clinical onset”, the sufficiency of evidence for enclosed space exposures, the calculation of cumulative hours, and the relationship between asbestosis and mesothelioma. In particular, the latency requirement of 20 years has been challenged by claimants who developed mesothelioma after shorter periods, but the medical-scientific consensus underlying the SoP has generally been upheld. The definition of “relevant service” in this SoP (non-operational service) means that litigation over the distinction between operational and non-operational service is a threshold issue - if a veteran’s service is reclassified as operational, the reasonable hypothesis SoP would apply instead, which may have different factors. There have been Federal Court decisions on the validity of SoPs generally, such as Repatriation Commission v Gorton (2001) and Repatriation Commission v Tuite (2001), which established the principle that the RMA’s determination is not reviewable on its merits but only on legal error. In Repatriation Commission v Hill (2002) the Full Federal Court held that the SoP must be applied according to its terms and decision-makers cannot substitute their own medical opinion. The specific factors in previous mesothelioma SoPs have been tested: for example, the requirement that asbestos inhalation occur “at the time material containing asbestos fibres was being applied, removed, dislodged, cut or drilled” was held to exclude passive bystander exposure if the activity was not ongoing. The cumulative 1,000-hour threshold in the open environment has been criticised as arbitrary, but courts have deferred to the RMA’s expertise. The firefighting factor (new in 2024) has not yet been litigated, but it is likely to be controversial regarding the type of training activities covered and the requirement that the first firefighting occurred at least 20 years before clinical onset. The fluoro-edenite and erionite factors may face litigation over the methodology for measuring fibre concentrations, especially given that the instrument does not specify the measurement standard. The “inability to obtain appropriate clinical management” factor has been narrowly interpreted in previous cases: the claimant must prove that clinical management was unavailable and that this caused worsening. There is no case law in this instrument, but practitioners should be aware of the body of AAT and Federal Court decisions that interpret similar terms in other SoPs, such as Re Bosnjak and Repatriation Commission v Cooke. The absence of a litigation appendix in the instrument means the RMA did not intend to incorporate case law, but the common law will continue to develop around the factors.

Several less-obvious features could trip up claimants and their advisers. First, the definition of “relevant service” is restrictive. It excludes operational service, hazardous service, and British nuclear test defence service. Many veterans assume that all defence service is relevant; it is not. A veteran who served in a theatre of war (operational service) cannot use this SoP - they must rely on the reasonable hypothesis version. Misapplying the wrong SoP could lead to a claim being determined under the wrong standard. Second, the enclosed space factor (1) does not require a minimum number of hours, but it requires that the first inhalation occurred at least 20 years before clinical onset. If the first inhalation was less than 20 years before, no claim under that factor can succeed even if the person had massive exposure. Claimants with a latency period of 19 years and 11 months will fail. Third, the open environment factor (2) requires a cumulative total of at least 1,000 hours. This is a high bar: 40 hours per week for 25 weeks. Many exposures were infrequent; a person who worked for three years in an open asbestos-contaminated environment but only occasionally disturbed the material may not reach 1,000 hours. The counting of hours is not defined - is it actual hours of exposure or hours of presence? The factor says “inhaling asbestos fibres in an open environment for a cumulative period of at least 1,000 hours before the clinical onset”. The time must be cumulated over the entire period before clinical onset, but only while material was being applied, removed, dislodged, cut or drilled. If the activity was intermittent, the claimant may need to prove every single hour. Fourth, the firefighting factor (8) has the same 1,000-hour threshold but also requires that the first firefighting occurred at least 20 years before clinical onset. For a young firefighter who started at age 20 and developed mesothelioma at age 39, the first firefighting occurred only 19 years before - claim denied. Fifth, the “inability to obtain appropriate clinical management” factor (9) applies only to material contribution or aggravation, and only where the mesothelioma was suffered or contracted before or during service but did not arise out of service. This is a narrow exception for claims where the veteran already had mesothelioma at the time of service (pre-existing) or contracted it during service but from a non-service cause. It will rarely apply. Sixth, the ionising radiation factor (6) excludes normal background radiation but includes therapeutic, diagnostic, cosmic at high altitude, and occupational radiation. However, the term “cumulative equivalent dose” is defined using a formula that accounts for differing biological effects. Claimants who received diagnostic X-rays are unlikely to reach 0.5 sievert unless they had many CT scans or radiotherapy. The definition does not specify how to calculate the dose from multiple sources; expert evidence will be needed. Seventh, the fluoro-edenite and erionite factors require measurement of fibre concentrations - 1.76 fibres per litre for fluoro-edenite and 0.3 fibres per cubic centimetre for erionite. These are scientifically precise, but in practice, establishing the concentration decades later in a person’s lung tissue or at a specific location is extremely difficult. The surrounding notes state that confirmed cases have been restricted to Sicily and Turkey, Greece, Cyprus, and Mexico respectively. Rarely will an Australian veteran have had that exposure. Eighth, the instrument applies to death from mesothelioma but the definition of terminal event is broad. A claimant must show that the terminal event was contributed to by the person’s mesothelioma. This could be challenging if the death certificate lists another cause. Ninth, the cross-reference to other Statements of Principles (section 11) means that if a factor refers to asbestosis, the claimant must satisfy the factors in the asbestosis SoP. That SoP has its own latency and exposure requirements, adding another layer of proof. Tenth, the instrument has no savings provision for claims lodged before 23 July 2024 if the decision is made after that date. The decision-maker will apply the new SoP, potentially catching claimants who prepared evidence under the old factors. Practitioners must check the decision date carefully.

For claimants: The first step is to confirm that the veteran or member has “relevant service” as defined - eligible war service (non-operational), defence service (non-hazardous and non-British nuclear test), or MRCA peacetime service. If the service is operational, stop and use the reasonable hypothesis version. For those with relevant service, identify which factor(s) may apply. The most common is asbestos exposure (factors 1 or 2). Gather all records of service locations, job roles, and specific activities involving asbestos products. Get statements from fellow servicemen, supervisors, or contractors. Obtain workplace inspection reports, shipyard documentation, or building maintenance logs. Prove the activity: application, removal, dislodging, cutting, drilling of asbestos-containing material. For factor 1, show the activity occurred in an enclosed space (e.g., a boiler room, submarine interior, ship compartment, ceiling cavity). For factor 2, show cumulative exposure totalling at least 1,000 hours in an open environment. Use medical records to establish the date of clinical onset - the first symptom or diagnosis. Then prove that the first inhalation (for factor 1 or 2) occurred at least 20 years before that date. If the veteran has diagnosed asbestosis (factor 3), obtain a report confirming asbestosis linked to service under its own SoP. For firefighting (factor 8), compile records of attendance at fires, training exercises, and fire prevention duties; calculate total hours using logs or unit histories. For ionising radiation (factor 6), request dose estimates from defence medical records, radiology reports, or dosimetry data; exclude background but total all other sources. For radiotherapy (factor 7), obtain medical records of ablative radiotherapy for cancer given at least 10 years before onset and confirm the mesothelioma occurred within the radiation field. For fluoro-edenite or erionite, expert evidence is essential: a pathologist or occupational hygienist must estimate fibre concentrations based on lung tissue analysis or environmental sampling. For clinical management factor (9), prove that appropriate treatment was not available or not provided and that this worsened the condition. Compile a chronology of medical appointments and treatment options.

For decision-makers: Confirm the type of service first. Then assess each factor against the evidence. Do not accept a claim that relies only on a vague exposure history without meeting the specific activity and latency requirements. Note that the enclosed space factor does not require a minimum hours but does require proof that the material was being applied, removed, dislodged, cut or drilled. The open environment factor requires cumulative hours - do not convert hours to years; count actual hours. Use the firefighting factor only if the person was directly involved in combating fires, not simply a fire warden or a person who worked near fires. For the ionising radiation factor, demand a calculation of cumulative equivalent dose using the definition; do not accept a single X-ray dose. Ensure that the factor is related to service (section 10). For the clinical management factor, apply it only where the mesothelioma was pre-existing or contracted during service from a non-service cause - do not apply it to claims where mesothelioma arose out of service.

For practitioners: File all evidence early. Engage occupational hygienists or medical experts to reconstruct exposures where documents are poor. Be aware of the high evidentiary threshold for cumulative hours. Consider whether the veteran might have operational service and thus a lower standard. Monitor the effective date: any decision made on or after 23 July 2024 must use the 2024 SoP. If the claim was lodged under the 2015 SoP but decided later, the new SoP applies. Apply for review if the decision incorrectly applies the factors. Keep up to date with amendments to other SoPs cross-referenced in section 11. The firefighting factor is an opportunity for veterans who served as military firefighters but missed out under the 2015 version. Overall, compliance means meticulous documentation of exposure and latency.

Compliance burden: For claimants, the burden is heavy - proving exposures 20-40 years ago is difficult. The cost of obtaining expert reports can be high, but the DVA may contribute. The instrument itself does not impose a regulatory compliance burden on business; it is a claims standard. However, from a free-market perspective, the SoP does not create a new entitlement - it merely clarifies an existing one. The specificity of factors reduces administrative uncertainty for decision-makers but increases the cost for claimants who must prove narrowly defined conditions. The thresholds (e.g., 1,000 hours) are arbitrary and may exclude people with genuine but undocumented exposure. That is a trade-off: precision for equity. There is no private enterprise impact, as this affects only government compensation.