Statement of Principles concerning poisoning from plants or fungi (Balance of Probabilities) (No. 50 of 2019)

The central concept is “poisoning from plants or fungi”, defined in s 7(2) as “illness, injury or death from the toxic effects of a plant or fungus”. The definition is inclusive and explicitly covers ingestion of mushrooms, berries or roots; ingestion of food contaminated with a mycotoxin (e.g., aflatoxin); ingestion of honey contaminated with a plant toxin (e.g., tutin); and use of a herbal medicine containing a plant toxin (e.g., pyrrolizidine alkaloid or aristolochic acid). The definition also excludes ten conditions expressly: allergic contact dermatitis, irritant contact dermatitis, photocontact dermatitis, blepharitis, conjunctivitis, malignant neoplasms, substance use disorder, coeliac disease, food allergy, and the effects of exposure to pharmaceuticals, cosmetics, toiletries, alcohol and commercially prepared tobacco. These exclusions mean that many common adverse reactions to plants (such as poison ivy dermatitis or gluten sensitivity) are not within the SoP, and a claimant must first establish that their condition fits the definition.

The instrument also introduces the concept of “delayed” toxicity. For poisoning manifesting as delayed hepatotoxicity, delayed nephrotoxicity or delayed neurotoxicity, the exposure window is extended to two years (s 9(4)-(6)). Similarly, for delayed hepatotoxicity, delayed neurotoxicity or delayed thyrotoxicity from consuming animal products, the window is two years (s 9(5)). This recognises that some plant toxins cause harm only after cumulative exposure or a latency period. However, the claimant must still show that the poisoning actually manifests in one of those specified delayed forms; otherwise the standard seven‑day window applies.

The instrument contains four “Specified List” schedules in the dictionary (Schedule 1). Specified List 1 lists four plants whose ingestion by animals can render milk, meat or eggs toxic within two weeks: white snakeroot, rayless goldenrod, autumn crocus and hemlock. Specified List 2 lists plants and extracts that can cause delayed hepatotoxicity, nephrotoxicity or neurotoxicity within two years of exposure: this list includes Aristolochiaceae (aristolochic acid), Artemisia (thujone), green tea extract, greater celandine, black cohosh, furanocoumarins (psoralens), chaparral, kava extract, and plants containing pyrrolizidine alkaloids. Specified List 3 lists plants whose consumption by animals can cause delayed hepatotoxicity, neurotoxicity or thyrotoxicity within two years: Cruciferae species, plants containing pyrrolizidine alkaloids, and plants containing quinolizidine alkaloids. The “specified list of plant toxins” comprises grayanotoxin, triptolide and tutin - these apply to honey consumption within two weeks (s 9(3)).

“Relevant service” is defined in Schedule 1 as three specific categories: eligible war service (other than operational) under the VEA; defence service (other than hazardous service and British nuclear test defence service) under the VEA; and peacetime service under the MRCA. This is a restrictive definition: operational service, hazardous service and British nuclear test defence service are excluded from this SoP. Claims involving those service types would fall under different SoPs (likely the “reasonable hypothesis” SoP for operational service). The definition of “terminal event” is also included, listing pneumonia, respiratory failure, cardiac arrest, circulatory failure or cessation of brain function as proximate or ultimate causes of death that can be attributed to the poisoning.

The primary group affected are veterans and members of the Australian Defence Force who rendered non‑operational service and who claim compensation for illness, injury or death from poisoning by plants or fungi. Specifically, this includes persons with “eligible war service (other than operational service)” - that is, service in a theatre of war that was not designated as operational, or service during a period of conflict but not involving combat. It also includes persons with “defence service (other than hazardous service and British nuclear test defence service)”, meaning peacetime defence service, domestic training or garrison duty. Finally, it covers members with “peacetime service” under the MRCA, which generally covers service after 1 July 2004 that is not warlike or non‑warlike.

These persons, and their dependants in the case of death, are directly affected because the SoP largely determines whether a claim will succeed. If a claimant cannot establish that at least one of the seven factors in s 9 exists, the claim must be refused. The instrument thus creates a de facto checklist for DVA delegates and the Veterans’ Review Board. It also affects medical practitioners who provide evidence: they must be familiar with the specified plant lists, the time windows, and the definition of poisoning (especially the exclusions) to give useful reports. Specialists in toxicology, occupational medicine and gastroenterology may be called upon.

The instrument also affects the Repatriation Medical Authority itself, which is required under s 196B of the VEA to determine SoPs based on “sound medical‑scientific evidence”. The RMA must decide whether to amend or replace SoPs as evidence evolves; the fact that this SoP repealed the 2010 version suggests some change in the evidence base. The RMA’s determination is binding on decision‑makers, so the instrument constrains administrative discretion.

The DVA and the Military Rehabilitation and Compensation Commission (MRCC) are affected as the bodies that assess claims. They must apply the SoP strictly; they cannot accept a claim on compassionate grounds if none of the factors is met. The instrument reduces the volume of speculative claims by narrowing the scope. The larger veteran community is indirectly affected: a narrow SoP may mean that some veterans with genuine poisonings (e.g., from less common plant toxins not on the lists, or from exposures outside the time windows) are denied compensation. This may lead to judicial review applications or political pressure to expand the factors.

From a free‑market perspective, the SoP does not directly affect private commerce, but it does affect the incentives of veterans and current members to report exposures. If a veteran knows that only a specific list of plants counts, they may be less likely to seek medical attention for a questionable exposure. The compliance burden falls mainly on claimants to prove exposure, species identification and timing - which can be extremely difficult years after the event. The instrument also affects the market for herbal medicines: the SoP includes them as potential sources of poisoning (s 7(2)(b)(iv)), but only for pyrrolizidine alkaloids and aristolochic acid. This may discourage use of certain herbal products among serving members, but the effect is likely small.

The SoP creates a duty on the part of the decision‑maker (the Commission or DVA delegate) to determine whether at least one of the factors in s 9 exists, and if so, whether that factor is related to the person’s relevant service. The duty is to apply the SoP as a binding legislative instrument. Section 10(1) states that the factor “must be related to the relevant service rendered by the person”. This imposes a causal or temporal connection; mere presence of the factor is insufficient if it arose from a non‑service activity. For example, a veteran who ate poisonous mushrooms while on leave but also had service exposure would need to link the factor to service.

The principal right for a claimant is the right to have their claim assessed against the SoP and, if the factors are met, to have the condition accepted as service‑related for the purposes of compensation under the VEA or MRCA. The claimant also has the right to rely on the factor of “inability to obtain appropriate clinical management” (s 9(7)). However, this factor is limited by s 10(2): it applies only to material contribution to, or aggravation of, poisoning where the poisoning was suffered or contracted before or during (but did not arise out of) the person’s relevant service. In other words, if a veteran already had the poisoning before service and service‑related factors worsened it or prevented treatment, that factor can be used. This is a relatively narrow avenue: it does not cover the original causation of the poisoning, only its worsening.

The claimant also has the right to argue that their condition falls within the definition (s 7) and not within the ten exclusions. Because exclusions are broad (including malignant neoplasms, coeliac disease, food allergy, etc.), there is a burden on the claimant to prove the negative. This is unusual: most SoPs define a condition and then list factors; here the definition also excludes conditions that might otherwise appear similar.

The SoP imposes an evidentiary duty on the claimant to prove the timing and nature of exposure. For factor (1), the exposure must be “within the seven days before the clinical onset”. For factors (4)-(6), the time window is two years, but the poisoning must manifest as a specific delayed effect. The claimant must produce medical evidence that the clinical onset occurred within the relevant period after exposure. This can be difficult for delayed hepatotoxicity, where liver damage may appear months after exposure. The SoP does not specify whether “clinical onset” means first symptoms or objective diagnosis, which may be litigated.

Section 11 incorporates other SoPs by reference. If a factor in this SoP refers to an injury or disease covered by another SoP (e.g., “mycotoxin” may involve aflatoxin, which could also be covered by an SoP on malignant neoplasms or other conditions), then that other SoP applies. This means a claimant may need to satisfy multiple SoPs simultaneously, increasing the evidentiary burden.

The SoP itself does not create offences or prescribe penalties. Penalties for false claims, fraudulent evidence or misuse of compensation payments arise from the VEA and the Criminal Code. However, the SoP indirectly affects enforcement by narrowing the range of conditions that can be safely claimed. A claimant who misrepresents exposure or timing risks being found to have not met the SoP, and may face prosecution if the misrepresentation is deliberate.

The enforcement of the SoP occurs through the claims process. DVA delegates and the MRCC are bound to apply it. If they fail to do so, a claimant can seek review by the Veterans’ Review Board, and further appeal to the Administrative Appeals Tribunal (AAT) and the Federal Court. The SoP is a legislative instrument, so it is subject to judicial review under the Administrative Decisions (Judicial Review) Act 1977. A person affected can challenge the legal validity of the SoP itself (e.g., on the ground that it was not based on sound medical‑scientific evidence) or the application of it.

From an enforcement perspective, the SoP also constrains the DVA: it cannot accept a claim based on a factor that is not listed. This reduces the risk of arbitrary or inconsistent decision‑making. However, it also means that deserving claims that fall outside the factors are automatically rejected. The only avenue for such claimants is to argue that the definition of poisoning includes their condition (i.e., that an exclusion does not apply) or that one of the factors can be established with different evidence.

The RMA is responsible for determining the SoP, and the instrument must be registered on the Federal Register of Legislation. Failure to do so would render it invalid. The SoP has effect from the date of commencement (27 May 2019), and it applies to claims made on or after that date. For claims made before that date, the repealed SoP (No. 85 of 2010) would apply, unless the new SoP is more favourable. The VEA provides for transitional provisions, but these are not detailed in this instrument.

The SoP is also subject to the Legislative Instruments Act 2003 (now the Legislation Act 2003), which requires tabling and disallowance. However, SoPs are generally not disallowed because they are based on medical‑scientific evidence and the RMA is an independent body. In practice, the SoP is rarely overridden by Parliament. Enforcement of the standard of proof (balance of probabilities) is done by the decision‑maker weighing the evidence; the SoP is a tool to ensure consistency in that weighing.

The SoP operates within the broader veterans’ compensation framework. It is made under s 196B(3) of the VEA, which applies to claims where the standard of proof is the balance of probabilities. It interacts directly with s 120B of the VEA, which requires that for claims involving non‑operational service, the Commission must be satisfied on the balance of probabilities that the injury, disease or death is related to service. The SoP is the method by which the RMA specifies what constitutes a sufficient relationship. Similarly, s 339 of the MRCA imposes the same requirement for peacetime service claims. The SoP thus gives content to those provisions.

It interacts with other SoPs through s 11. If a factor in this SoP references an injury or disease covered by another SoP (e.g., “malignant neoplasms” are excluded from the definition of poisoning, but if a factor leads to a cancer claim, that would be assessed under the relevant cancer SoP). The interplay can become complex: a claimant may have both acute poisoning and a later malignancy, and would need to satisfy two different SoPs. Section 11 ensures that the factors from the other SoP must also be met. This increases the evidentiary burden and may lead to multiple hearings.

The SoP interacts with the definition of “relevant service” in the VEA and MRCA. The SoP defines relevant service narrowly to include only non‑operational categories. This means that for operational service, a different SoP made under s 196B(2) (reasonable hypothesis) would apply. The distinction is critical: the reasonable hypothesis standard is easier for claimants to meet, as it does not require balance of probabilities. So a veteran with operational service who ate toxic mushrooms may have an easier path than one with peacetime service. The SoP thus creates a two‑tier system depending on service type.

The SoP also interacts with the Safety, Rehabilitation and Compensation Act 1988 (SRCA) for Commonwealth employees who are not veterans, but that Act has its own different provisions. For veterans’ claims, the SoP is the sole authoritative source for medical‑causal factors. It does not interact with state workers’ compensation laws, as veterans’ compensation is exclusively federal.

From a private law perspective, the SoP has no direct effect on tort claims against third parties (e.g., a gardener who supplied toxic plants). However, if a veteran receives compensation under the VEA or MRCA, they may need to repay the Commonwealth from any tort damages, under the recovery provisions in the VEA. The SoP may be used as evidence of causation in a tort case, but it is not binding on a civil court.

The SoP also interacts with the Therapeutic Goods Act 1989 by including herbal medicines as potential sources (s 7(2)(b)(iv)). This may draw attention to regulatory gaps: if a herbal medicine causes poisoning in a veteran, the SoP might prompt the TGA to investigate, but the SoP itself has no regulatory power. It is purely a compensation instrument.

Finally, the SoP interacts with the definition of “poisoning from plants or fungi” in other SoPs (e.g., if there is a separate SoP for “toxic effects of pharmaceuticals” - but those are excluded). The exclusions list ensures no overlap with SoPs for allergic dermatitis, neoplasms, etc.

This SoP (No. 50 of 2019) replaced the earlier Statement of Principles concerning poisoning and toxic reaction from plants and fungi No. 85 of 2010. Section 4 expressly repeals the 2010 instrument. The new instrument commenced on 27 May 2019. The 2010 SoP had itself replaced an even earlier version. The instrument’s text indicates it was made on 26 April 2019 and signed by the Chairperson of the Repatriation Medical Authority. The RMA periodically reviews SoPs as new medical evidence emerges. This SoP is the current version; no further amendments are recorded in the source.

The repealing provision (s 4) means that any claim made after 27 May 2019 is determined under the new factors. The 2010 SoP included the same general structure but with different plant lists and timeframes? The source does not provide the 2010 text, so we cannot compare directly. However, the fact that the RMA issued a new SoP suggests changes in the evidence base or a desire to refine the factors. The “Balance of Probabilities” SoP for this condition was first made in 2010, so the 2019 version is the second iteration. The RMA may have added new plants (e.g., green tea extract and black cohosh appear in Specified List 2, which may be new) or refined the delayed toxicity provisions.

The instrument is subject to ongoing review; the RMA may issue amendments under s 196C of the VEA. The responsible Minister can also request a review. However, no such amendments are mentioned. The SoP remains in force until repealed or replaced. The fact that it is a standalone instrument means it is not consolidated with others; practitioners must check the Federal Register for the latest version.

The source does not refer to any litigation, nor does it cite cases. However, SoPs of this type are frequently challenged in the AAT and the Federal Court. Claimants often argue that the RMA failed to consider all sound medical‑scientific evidence, or that the factors are too narrow or not supported by evidence. The 2010 SoP may have been litigated, but no specific cases are mentioned.

Given the complexity of the definitions and lists, litigation could arise on several fronts. First, the definition of “poisoning from plants or fungi” - a claimant might argue that their condition (e.g., chronic liver disease from kava) falls within the definition but was wrongly excluded by the exclusions list. The exclusions include “malignant neoplasms”, so liver cancer from aflatoxin would be excluded. That exclusion has likely been tested. Second, the time windows: a claimant might argue that clinical onset occurred more than seven days after a single exposure, but the poisoning is delayed. The SoP provides for delayed effects only for specific toxicities (hepatotoxicity, nephrotoxicity, neurotoxicity, thyrotoxicity). If the poisoning manifests as, say, delayed cardiotoxicity, there is no two‑year window; only the seven‑day window applies. This could be challenged as arbitrary. Third, the specified lists: the RMA might have omitted a plant that later evidence shows as toxic. A claimant could argue that the SoP is not based on sound medical‑scientific evidence because it omits, say, a common toxic fungus. The AAT has power to review the merits of a decision but cannot invalidate a SoP; that requires judicial review in the Federal Court.

In practice, litigation over SoPs tends to focus on whether the RMA properly considered evidence. The High Court in Repatriation Commission v Smith (1987) held that SoPs are binding, but they must be supported by evidence. The Repatriation Commission v Gobbart (1999) considered the role of the AAT in applying SoPs. These general principles apply.

The instrument’s interaction with s 120B and s 339 has also been litigated. The balance of probabilities standard is lower than the criminal standard, but the SoP factors create a presumption that must be rebutted. Failure to meet a factor means the claim fails, regardless of other evidence. This has been upheld in cases like Repatriation Commission v Yates (1996). The present SoP would be subject to similar analysis.

Several traps exist in this SoP that can easily trip up claimants and their representatives.

First, the definition of poisoning excludes malignant neoplasms outright. This means that if a toxin causes cancer (e.g., aflatoxin‑induced liver cancer), the claim cannot be for “poisoning from plants or fungi” even if the cancer is clearly caused by the toxin. The claimant would need to claim under a different SoP (e.g., for malignant neoplasm of the liver). But the cancer SoP may have different factors, possibly requiring a longer latency or higher dose. This exclusion is a significant barrier: many plant toxins are carcinogenic, but the SoP directs compensation away from cancer claims under this heading.

Second, the exclusions also cover “food allergy” and “coeliac disease”. A veteran who has a severe allergic reaction to peanuts (a legume, not a fungus, but could be argued as a plant) cannot claim poisoning; it is an allergy. The line between poisoning and allergy can be blurry, but the SoP is clear. Similarly, gluten sensitivity from wheat (a grass, which is a plant) is excluded as coeliac disease. So a veteran with a non‑toxic adverse reaction to a common food plant has no coverage.

Third, the definition of “relevant service” is narrow. It excludes operational service, hazardous service and British nuclear test defence service. Many veterans with combat service will not be covered by this SoP. They must rely on a different reasonable hypothesis SoP. This is a trap for legal practitioners who assume all service is treated equally. The distinction is not always obvious: a veteran who served in a war zone but was not engaged in combat may still have operational service. Checking the service type is critical.

Fourth, the time windows are strict. For acute poisoning, exposure must be within seven days before clinical onset. If a veteran eats a toxic mushroom and gets sick 10 days later, the factor is not met, even if medical science says the mushroom can cause delayed symptoms. The only exceptions are the specific delayed effects listed. If the poisoning manifests as, say, delayed cardiotoxicity, the seven‑day window applies and will likely fail. The claimant’s only hope is factor (7) (inability to obtain appropriate clinical management), but that only applies to aggravation.

Fifth, the specified lists are closed lists. They do not include many common toxic plants. For example, poison ivy (Toxicodendron radicans) is a well‑known plant that causes dermatitis, but dermatitis is excluded anyway. But other plants like oleander, rhododendron, or yew are not on any list. A veteran who ingests oleander and suffers cardiac arrest within hours would have an acute poisoning from a toxin (cardiac glycosides) but the plant is not listed. The SoP does not require the plant to be on a list for acute poisoning (factor (1) says “toxin from a plant or fungus” without reference to a specific list). However, for delayed effects and for animal‑product consumption, the lists are essential. The absence of oleander from any list means that poisoning from oleander would fall under factor (1) if it occurs within seven days, but if the poisoning is delayed (e.g., cumulative), there is no two‑year window because oleander is not in Specified List 2. This creates a gap.

Sixth, the factor for milk, meat, eggs and honey (ss 9(2),(3),(5),(6)) requires that the animal ingested a plant from a specified list. If a veteran consumes milk from a cow that ate hemlock, and the veteran gets sick within two weeks, that is covered. But if the cow ate a different toxic plant not on the list (e.g., water hemlock - Cicuta species - which is arguably different from Conium maculatum), the factor is not met. The lists are taxonomically specific.

Seventh, the factor “inability to obtain appropriate clinical management” (s 9(7)) is limited to aggravation by s 10(2). It does not cover original causation. This is often missed: claimants may think it covers a failure to treat the initial poisoning, but the SoP only allows it for worsening of a pre‑existing condition. The factor also requires that the poisoning was “suffered or contracted before or during (but did not arise out of) the person’s relevant service”. So if a veteran contracted the poisoning during service (e.g., ate a mushroom on base), and the inability to obtain clinical management occurred after service, the factor would not apply because the poisoning arose out of service. It only applies where the poisoning is pre‑existing and unrelated to service, and then service factors caused aggravation. This is a very narrow scenario.

Eighth, the dictionary defines “terminal event” but it only matters for death claims. The terminal event must be contributed to by the poisoning. The list of terminal events (pneumonia, respiratory failure, etc.) is exhaustive, so death from a condition not on that list (e.g., multi‑organ failure not separately listed) would need to be argued as falling under the general definition of death from poisoning, but the instrument provides that terminal event includes those specified. The note shows it is inclusive, but the definition is limited to the five listed events. A claimant would need to show the poisoning caused one of those.

For a claimant seeking to rely on this SoP, the process is evidence‑intensive. The first step is to confirm that the condition falls within the definition in s 7. This requires a diagnosis of “illness, injury or death from the toxic effects of a plant or fungus” and a clear exclusion of the ten listed conditions (allergic contact dermatitis, irritant contact dermatitis, photocontact dermatitis, blepharitis, conjunctivitis, malignant neoplasms, substance use disorder, coeliac disease, food allergy, and effects of pharmaceuticals, cosmetics, toiletries, alcohol and commercially prepared tobacco). A medical specialist report should explicitly state that the condition is not one of those excluded. If the condition is, for example, liver cancer from aflatoxin, the claim should be made under the cancer SoP, not this one.

The second step is to identify which of the seven factors in s 9 applies and gather evidence to prove it. Most claims will rely on factor (1): direct exposure to a toxin within seven days before clinical onset. The claimant must prove that they ingested, inhaled, injected or had cutaneous/intradermal/mucosal/ocular exposure to a toxin from a plant or fungus. This requires a clear chain of evidence: a witness to the eating of a wild mushroom, a mycological identification of the mushroom species, a chemical confirmation of the toxin, or at least a plausible temporal link. The note says a toxin from a fungus includes mycotoxins contaminating foodstuffs, so laboratory testing of the food source may be needed. The seven‑day window must be matched precisely to the date of clinical onset as documented in medical records.

For factor (2) or (3) (consuming milk, meat, eggs or honey), the claimant must establish that the animal product was from an animal that ingested a plant from the relevant Specified List. This will often be impossible years later unless the animal product was tested or traced to a specific farm. The claimant may need veterinary evidence or farm records. Similarly, factor (4) and (5) (delayed effects) require proof that the poisoning manifested as hepatotoxicity, nephrotoxicity, neurotoxicity or thyrotoxicity, and that exposure to a plant from Specified List 2 or 3 occurred within two years. Medical evidence of the specific organ toxicity (e.g., liver biopsy showing veno‑occlusive disease) is essential.

For factor (6) (delayed hepatotoxicity only, from honey with pyrrolizidine alkaloids), the claimant must prove the honey was derived from plants containing pyrrolizidine alkaloids. The note gives examples but the list is not exhaustive; chemical analysis of the honey residue may be needed.

Factor (7) (inability to obtain appropriate clinical management) is the most complex. The claimant must show that the poisoning was suffered or contracted before or during service but did not arise out of service. Then, that the inability to obtain appropriate clinical management during service materially contributed to or aggravated the poisoning. This requires evidence that clinical management was unavailable (e.g., lack of antidote, failure to diagnose, delay in treatment) and that this worsened the outcome. It will often require expert evidence on what appropriate management would have been.

For all factors, the relationship to relevant service must be established under s 10. The exposure must have occurred during the period of relevant service, or the inability to obtain management must be during that service. The claimant should obtain service records showing location, duties and activities to link the exposure to service.

For DVA delegates, compliance means checking each element: is the condition within the definition? Is at least one factor met? Is the factor related to relevant service? The delegate must request a medical report that addresses the definition and the factor. The delegate should be alert to the exclusions, especially malignant neoplasms. If the claim involves a cancer, it should be referred to the appropriate cancer SoP. The delegate must also note the distinction between operational and non‑operational service; the SoP only applies to non‑operational service for VEA claims. For peacetime service under MRCA, the SoP always applies.

For legal practitioners, the key is to identify early whether the SoP applies. If the condition is one of the excluded diseases, advise the client to claim under a different SoP. If the exposure was to a plant not on the specified lists, explore factor (1) for acute poisoning, or consider whether the plant can be argued as containing a “toxin” even if not listed. The time windows are strict, so gather evidence of the exact date of exposure. The “clinical onset” date is critical; a conflicting medical opinion can be fatal.

In practice, the most common compliant path will be factor (1) for direct ingestion of a known toxic mushroom or plant within a week of symptoms. Cases involving animal products or delayed toxicity are much harder to prove and will often require expert botanical and veterinary evidence. The SoP imposes a heavy evidentiary burden that reflects the RMA’s view that only strong claims should succeed on the balance of probabilities.