Statement of Principles concerning sleep apnoea (Balance of Probabilities) (No. 69 of 2022)

The SoP introduces several key concepts that define its operation. First, 'sleep apnoea' is defined under subsection 7(2) as chronic sleep-related disordered breathing characterised by periods of cessation or reduction in airflow in the upper airway, leading to arousals from sleep and disrupted sleep architecture, diagnosed by a specialist physician. The definition expressly includes central sleep apnoea, mixed sleep apnoea and obstructive sleep apnoea. This diagnostic prerequisite is a threshold requirement: without a specialist physician's diagnosis, a claim cannot proceed under this SoP regardless of other evidence. Second, the instrument operates on a 'balance of probabilities' standard, meaning the RMA has determined that the specified factors are sufficient to establish that it is more probable than not that the condition can be related to the person's relevant service. Third, 'relevant service' is defined in the dictionary to mean eligible war service (other than operational service), defence service (other than hazardous service and British nuclear test defence service) under the VEA, or peacetime service under the MRCA. This distinction is crucial because it excludes veterans who rendered operational service, hazardous service or British nuclear test defence service from the ambit of this SoP. Fourth, the instrument distinguishes between 'clinical onset' and 'clinical worsening'. The factors in sections 9(1) to 9(8) apply to the initial development of sleep apnoea, while sections 9(9) to 9(18) apply only where existing sleep apnoea has been materially contributed to or aggravated by relevant service. The dictionary also defines key medical terms that serve as factors: 'heart failure', 'specified list of central nervous system lesions or disorders' (moderate to severe traumatic brain injury, spinal cord injury, or tumour or lesion of the cervical spine), 'autonomic neuropathy', 'chronic renal failure' (glomerular filtration rate less than 15 mL/min/1.73 m2 for at least three months, or need for renal replacement therapy or chronic dialysis), 'neuromuscular disease affecting the diaphragm, other respiratory muscles or upper airway muscles', 'acromegaly', 'hypothyroidism including Hashimoto thyroiditis that has resulted in hypothyroidism', 'chronic obstruction or chronic narrowing of the upper airway', 'being obese' (BMI of 30 or greater), and for central sleep apnoea only, 'long-acting opioid' taken at an average daily morphine equivalent dose of at least 120 milligrams for at least two months. For clinical worsening, the instrument adds 'consuming an average of at least 30 grams of alcohol per day for at least six months' and 'being in a supine position when sleeping for at least the six months before the clinical worsening of obstructive sleep apnoea'. These definitions are not merely illustrative; they are binding and must be satisfied in the terms set out in the dictionary.

The primary persons affected by this instrument are veterans and members of the Australian Defence Force who render 'relevant service', as narrowly defined in the dictionary. This includes veterans with eligible war service that is not operational service, members with defence service that is not hazardous service and not British nuclear test defence service, and members who rendered peacetime service under the MRCA. Claimants with operational service (such as service in a declared warlike operation) or hazardous service (such as service in specified peacekeeping operations) are excluded from this SoP and would fall under a different standard. Dependents of deceased veterans may also be affected in death claims where sleep apnoea contributed to the cause of death. The instrument also affects the Department of Veterans' Affairs as the decision-maker, which must apply the factors strictly when assessing claims. Legal practitioners representing veterans must identify which SoP applies based on the type of service rendered. Medical practitioners who provide reports for compensation claims need to understand the precise definitions in the dictionary, for example the requirement that sleep apnoea be diagnosed by a specialist physician, that chronic renal failure requires a GFR below 15 mL/min/1.73 m2 or dialysis, and that being obese requires a BMI of 30 or greater calculated using the formula W/H2. The Veterans' Review Board and the Administrative Appeals Tribunal are also affected, as they must determine reviews and appeals consistently with the SoP. The RMA itself is affected insofar as it must review the instrument periodically based on sound medical-scientific evidence. There may also be indirect effects on taxpayers, who bear the cost of successful claims; the SoP potentially narrows the pool of eligible claims compared to a less restrictive approach, though the instrument's stated rationale is to set out the factors the RMA considers sufficient on the current evidence. Private sector employers of veterans are not directly affected, but the instrument may interact with other compensation schemes if a veteran also has a workers' compensation claim for sleep apnoea arising from civilian employment.

This instrument does not impose direct duties on individuals. Its legal effect is to create a binding rule for decision-makers: for a claim to succeed on the balance of probabilities for sleep apnoea connected to relevant service, at least one of the factors in section 9 must exist and that factor must be related to the relevant service rendered. Claimants have the right to have their claim determined in accordance with this SoP. If a claimant can establish one of the specified factors and that the factor is related to their relevant service, the decision-maker must accept the connection between the condition and service. Conversely, if no factor is established, the decision-maker must reject the claim under the balance of probabilities standard, absent other legally sufficient evidence. Claimants also have the right to rely on section 11, which provides that if a factor refers to an injury or disease covered by another SoP determined under subsection 196B(3) of the VEA, then the factors in that other SoP apply. For example, if a factor in this SoP requires 'heart failure', and heart failure is itself the subject of another SoP, the claimant can use that other SoP to establish the existence of the factor. Decision-makers have the duty to apply the SoP as it stands, including the definitions in the dictionary. The RMA has the duty under section 196B of the VEA to determine SoPs based on sound medical-scientific evidence, but this instrument is the outcome of that duty, not a continuing obligation. The instrument does not create any right of appeal; appeal rights exist under the VEA and MRCA separately. Practitioners should note that the SoP distinguishes between clinical onset and clinical worsening. Section 10(2) provides that the factors for worsening (sections 9(9) to 9(18)) apply only to material contribution to or aggravation of sleep apnoea where the person's sleep apnoea was suffered or contracted before or during (but did not arise out of) the person's relevant service. This imposes a timing requirement: the factor must be related to service, but the condition itself must have pre-existed or arisen during service without being caused by service. This distinction can be a trap for the unwary and affects the onus of proof in practice.

This instrument contains no penalty provisions. It is not a penal or regulatory instrument in the ordinary sense. Enforcement is not a relevant concept for an SoP. The instrument operates within the veterans' compensation system, where the consequence of non-compliance by a claimant with its requirements is that their claim will be refused. There is no penalty for a claimant who cannot satisfy the factors; they simply do not receive compensation. For decision-makers, failure to apply the SoP correctly can lead to adverse decisions on review and, in theory, could expose the Department to liability for costs or damages, though this is rare. The instrument itself does not create any offence for making a false claim; the VEA and the Criminal Code contain separate provisions regarding false statements. False or misleading information given in connection with a claim may attract criminal penalties under section 137.1 of the Criminal Code (giving false or misleading information) or section 135.1 (general dishonesty). These are not matters dealt with in this SoP. The RMA is not subject to enforcement under this instrument; the RMA's determinations are subject to judicial review under the Administrative Decisions (Judicial Review) Act 1977 or through constitutional writs, but again the SoP itself does not contain any penalty mechanism. Practitioners should be aware that the SoP is a legislative instrument and, like all such instruments, it may be disallowed by Parliament under the Legislation Act 2003 if a member of Parliament moves for disallowance within the prescribed period. This is a rare occurrence for SoPs, but theoretically possible. The instrument's practical teeth lie in its binding effect on administrative decision-making, not in any punishment for breach.

This instrument is made under subsection 196B(3) of the VEA and applies to claims to which section 120B of the VEA or section 339 of the MRCA applies. It interacts directly with those sections by specifying the factors that must exist for the condition to be related to relevant service on the balance of probabilities. The instrument also interacts with other SoPs determined under the same subsection. Section 11 provides that if a factor in this SoP refers to an injury or disease covered by another SoP, then the factors in that other SoP apply in accordance with its terms as in force from time to time. This creates a cross-referencing mechanism. For example, if a claimant relies on factor 9(11) (autonomic neuropathy) and autonomic neuropathy is the subject of a separate SoP, the claimant must meet the factors in that SoP as if they were part of this instrument. The instrument also interacts with the general law governing veterans' claims, including the provisions of the VEA and MRCA that set out the standards of proof and onus of proof. It overrides the earlier SoP No. 42 of 2013, which is repealed. The instrument is a legislative instrument within the meaning of the Legislation Act 2003 and is subject to registration and disallowance. It does not interact directly with state or territory workers' compensation laws, though a veteran with a civilian job may be able to claim under both schemes for the same condition. In practice, the existence of a favourable determination under this SoP may influence an employer's insurer, but there is no legal interaction. The instrument does not purport to override other federal laws such as the Disability Discrimination Act 1992 or the Fair Work Act 2009. Its interaction with the National Disability Insurance Scheme is indirect; a veteran with accepted sleep apnoea may receive additional support. The instrument's definitions are specific to the veterans' compensation context; they may differ from definitions used in clinical guidelines or other Australian legislation. Practitioners should be careful not to import definitions from other contexts without checking this instrument's dictionary. For instance, 'chronic renal failure' in this SoP requires a GFR below 15 or dialysis, whereas the broader medical literature may define it differently.

The source text does not contain any amendment history of this instrument. The instrument is made on 24 June 2022 and commences on 25 July 2022. It repeals the earlier Statement of Principles concerning sleep apnoea No. 42 of 2013, which was made under the same subsection. No amendments to this instrument are noted in the source. The instrument itself is a replacement SoP, reflecting the RMA's assessment of current sound medical-scientific evidence. Past SoPs for sleep apnoea were subject to periodic review and replacement. The instrument does not include a provision for automatic review or sunset. Under the Legislation Act 2003, legislative instruments are subject to periodic review by the Office of Parliamentary Counsel, but that is not part of this instrument. The RMA has a practice of reviewing SoPs as new medical evidence emerges, but the instrument does not bind the RMA to a particular review cycle. The repeal of the 2013 SoP is the only amendment event mentioned. Legal practitioners should be aware that the 2013 SoP is no longer operative even for claims made before 25 July 2022, unless transitional provisions in the VEA or MRCA apply. The instrument does not contain transitional provisions itself, but the VEA may have general transitional rules. The absence of an amendment history means the instrument has been in force in its current form since commencement; any future amendments would be recorded separately in the Federal Register of Legislation. The instrument is a standalone document and does not incorporate amendments by reference to other instruments, except for the cross-reference in section 11 to other SoPs, which may themselves be amended from time to time. Those amendments would take effect automatically under the terms of this instrument. This dynamic incorporation means the factual content of other SoPs can change without amendment to this instrument itself.

The source text does not mention any litigation history or any court cases. The instrument itself has not been the subject of reported judicial consideration, to the extent indicated by the source. More broadly, Statements of Principles under the VEA have been the subject of litigation, including high-profile cases concerning the reasonableness of the RMA's determinations and the process for making them. However, the instruction is to name only cases the source names. Since the source names none, no specific cases can be discussed here. The instrument is a legislative instrument and, as such, is susceptible to judicial review under the Administrative Decisions (Judicial Review) Act 1977 or through the original jurisdiction of the Federal Court under the Judiciary Act 1903. A person affected by a decision made under this SoP could challenge the validity of the SoP itself, for example on the ground that it was made without regard to 'sound medical-scientific evidence' as required by section 196B of the VEA. Past challenges have focused on the RMA's failure to consider certain evidence or on the definition of factors. But again, no such challenges are documented in this source. The instrument is relatively new, having commenced in July 2022, so litigation may be limited. The repeal of the 2013 SoP may also give rise to transitional issues if claims were pending under that SoP. The source provides no information on whether any cases have been decided under this particular instrument. Practitioners should be aware that the operation of this SoP may be affected by any current or future litigation. The lack of cited litigation does not mean the instrument is free from legal risk; it simply means the source does not mention any. Because the instrument is a replacement, decisions made under the 2013 SoP are not directly applicable as precedent for this one, but the general principles of interpretation may carry over.

Several aspects of this instrument are likely to catch out the unwary practitioner or claimant. First, the definition of 'sleep apnoea' in subsection 7(2) requires that the condition be 'diagnosed by a specialist physician'. A diagnosis by a general practitioner, a sleep technician or a respiratory scientist will not satisfy this threshold. The diagnosis must come from a specialist physician; typically a respiratory physician, neurologist or sleep physician. Claimants who have only GP-diagnosed sleep apnoea will need to obtain specialist confirmation before a claim can proceed under this SoP. Second, the definition of 'relevant service' excludes operational service, hazardous service and British nuclear test defence service. This means that many veterans with active service in war-like operations or peacekeeping missions are not covered by this SoP. They may be assessed under a different standard, but the instrument does not apply. Third, the factors are exhaustive for claims on the balance of probabilities. If a claimant has sleep apnoea related to service through a mechanism not listed, the claim will fail even if there is strong medical evidence of a connection. The catch-all factor in section 9(18) 'inability to obtain appropriate clinical management for sleep apnoea' may be the only escape route, but it is narrowly drafted and requires the claimant to show they could not obtain appropriate clinical management, not merely that management was delayed or suboptimal. Fourth, the distinction between clinical onset and clinical worsening is critical. Many claimants might assume that if their sleep apnoea worsened during service, any factor can apply. But section 10(2) restricts the worsening factors (9(9) to 9(18)) to cases where the sleep apnoea was suffered or contracted before or during service but did not arise out of service. If the condition arose out of service, the onset factors apply instead. Fifth, for obstructive sleep apnoea only, the factor 'being obese' requires a BMI of 30 or greater at the time of clinical onset or worsening. BMI is calculated using the formula W/H2, with weight in kilograms and height in metres. A claimant whose BMI was 29.9 at onset will not satisfy this factor even if they subsequently become obese. Sixth, for central sleep apnoea, the long-acting opioid factor requires an average daily morphine equivalent dose of at least 120 milligrams for at least two months before clinical onset or worsening. Shorter periods or lower doses will not suffice. Seventh, the alcohol consumption factor applies only to clinical worsening, not to clinical onset. A claimant who consumes alcohol at the relevant level before onset of sleep apnoea cannot rely on this factor. Eighth, the supine position factor also applies only to worsening and only for obstructive sleep apnoea. Ninth, the definitions of 'chronic renal failure' and 'heart failure' may be more restrictive than clinical definitions. Chronic renal failure requires a GFR below 15 or dialysis; milder kidney disease does not qualify. Tenth, the cross-reference in section 11 means that if a factor refers to another condition, the claimant must satisfy the SoP for that other condition as well. This adds an extra layer of evidentiary requirements.

Compliance with this instrument is relevant primarily for claimants and their representatives. For the claimant, the first step is to ensure that the condition has been diagnosed by a specialist physician and that the diagnosis meets the definition in subsection 7(2). The claimant should obtain a formal specialist report confirming the diagnosis of sleep apnoea and specifying the type (obstructive, central or mixed). Next, the claimant must identify which factor or factors in section 9 might apply to their case. This requires a careful review of the factors for clinical onset and clinical worsening, depending on the timeline. The claimant should gather medical evidence to support the existence of the factor at the relevant time (the time of clinical onset or clinical worsening). For example, if relying on being obese, documentary evidence of BMI at or above 30 at the relevant time is needed, such as medical records or a contemporaneous weight and height measurement. If relying on heart failure, a specialist diagnosis of heart failure at the time of onset is required. The claimant must then establish that the factor is related to their relevant service. The SoP does not define what 'related to the relevant service' means; it will depend on the facts. For instance, if the factor is obesity, the claimant must show that the obesity was caused or contributed to by their service, or that it arose out of service. Section 10(1) requires the factor to be related to the relevant service rendered by the person. This may involve showing that service conditions led to weight gain, or that a service injury caused central nervous system damage. The claim must be lodged with the Department of Veterans' Affairs, with all supporting evidence attached. For claims under the MRCA, similar evidence is required. Practitioners should also consider whether any factor refers to another condition that has its own SoP; if so, they must comply with that SoP as well (section 11). The Department will assess the claim and must be satisfied that at least one factor exists and is service-related. If the claim is refused, the claimant can seek review by the Veterans' Review Board or the Administrative Appeals Tribunal, where the same SoP will be applied. There is no compliance obligation on the general public; the instrument is only relevant within the veterans' compensation system. Medical practitioners who provide reports should use the definitions in the dictionary to avoid disputes. For example, they should not simply say the claimant is 'obese' without specifying BMI and the applicable formula. They should also be precise about the timing of the factor relative to clinical onset or worsening. The instrument does not require any registration or reporting. Compliance is essentially a matter of proof in the claim process. The instrument's effect is to channel the evidentiary inquiry into the specified factors, making it easier for claimants who can meet one of them but harder for those who cannot.