Statement of Principles concerning solar keratosis (Balance of Probabilities) (No. 80 of 2021)

This instrument is a legislative determination by the Repatriation Medical Authority under subsection 196B(3) of the Veterans’ Entitlements Act 1986 (VEA). It sets out the factors that must exist before solar keratosis, or death from solar keratosis, can be accepted as connected with the circumstances of a person’s relevant service for the purposes of veterans’ compensation. The instrument operates on the balance of probabilities standard, meaning the factors must be more probable than not, rather than a reasonable hypothesis. It applies to claims made under section 120B of the VEA (for non‑operational, non‑hazardous service) and section 339 of the Military Rehabilitation and Compensation Act 2004 (MRCA) (for peacetime service). The instrument repeals and replaces the earlier Statement of Principles concerning solar keratosis No. 74 of 2012. The core mechanical effect is to define the specific causal pathways through which a veteran or member can establish a link between their service and the development of solar keratosis. The instrument is binding on decision‑makers in the Department of Veterans’ Affairs and the Military Rehabilitation and Compensation Commission. It does not create any new rights or obligations outside the compensation framework; rather, it constrains the exercise of administrative discretion by requiring that at least one of the enumerated factors be present before a positive determination can be made. The instrument also defines the medical condition narrowly, excluding Bowen disease, arsenical keratoses and other non‑UV‑related keratoses. It provides a detailed formula for converting sunlight exposure in non‑tropical areas to a tropical equivalent using a latitude weighting factor schedule. The practical effect is that many claimants will need to produce extensive evidence of cumulative sun exposure, or evidence of organ transplantation, PUVA therapy, or specific drug use, to meet the threshold. The instrument also includes a residual factor for inability to obtain appropriate clinical management, but that factor applies only to the aggravation of pre‑existing solar keratosis, not to its initial onset. By codifying these factors, the instrument reduces the scope for discretionary judgment by medical advisers but increases the evidentiary burden on claimants.

The central concept is “solar keratosis”, defined in subsection 7(2) as a cutaneous lesion characterised by the local proliferation of atypical (dysplastic) epidermal keratinocytes. The definition explicitly includes sun‑damaged skin adjacent to a localised skin lesion, known as field cancerisation. It expressly excludes Bowen disease, arsenical keratoses and other keratoses not related to ultraviolet light exposure. The instrument notes that solar keratosis is also known as actinic keratosis, and that lesions vary clinically, may regress spontaneously, remain stable, or undergo malignant transformation into invasive squamous cell carcinoma. The ICD‑10‑AM code L57.0 is referenced but the definition in the instrument overrides any coding classification. Death from solar keratosis is defined in subsection 7(5) to include death from a terminal event or condition to which the solar keratosis contributed. The Schedule 1 Dictionary defines “terminal event” as including pneumonia, respiratory failure, cardiac arrest, circulatory failure, or cessation of brain function.

The instrument establishes five factors in section 9 that must exist for the condition to be related to service. The first factor (subsection 9(1)) is cumulative sunlight exposure to unprotected skin at the affected site of at least 4,500 hours in a tropical area, or equivalent cumulative exposure in other latitude zones calculated using the latitude weighting factor schedule. “Unprotected skin” is defined as skin directly exposed to the sun without sunscreen, clothing, or any other physical barrier. “Tropical area” means between 23°27’ South and 23°27’ North. Equivalent exposure in other zones is calculated by multiplying hours of exposure by a factor (1.0 for tropical, 0.75 for latitudes >23°27’ to 35°, 0.5 for >35° to 45°, and 0.25 for >45° to 65°). The second factor (subsection 9(2)) is undergoing organ or tissue transplantation, excluding corneal transplant, before clinical onset. “Organ or tissue transplantation” includes transplantation of all or part of an organ or tissue, or a substance obtained from an organ or tissue. The third factor (subsection 9(3)) is having PUVA therapy (photochemotherapy with oral methoxsalen and ultraviolet A radiation) involving the affected site, where the first treatment commenced at least five years before clinical onset and at least 50 treatments were administered before onset. The fourth factor (subsection 9(4)) is taking hydroxyurea or voriconazole for at least three months before clinical onset. The fifth factor (subsection 9(5)) is “inability to obtain appropriate clinical management” for solar keratosis, but section 10(2) specifies this factor applies only to material contribution to, or aggravation of, solar keratosis where the condition was suffered or contracted before or during relevant service (but did not arise out of it). All factors must be related to the person’s relevant service, as defined in the dictionary to mean eligible war service (other than operational service), defence service (other than hazardous and British nuclear test defence service) under the VEA, or peacetime service under the MRCA.

The instrument directly affects veterans and members of the Australian Defence Force who are claiming compensation for solar keratosis or death from solar keratosis under the VEA or MRCA, but only for specific categories of service. It applies only to claims where the standard of proof is balance of probabilities: that is, claims under section 120B of the VEA (for eligible war service that is not operational service, and defence service that is not hazardous service or British nuclear test defence service) and claims under section 339 of the MRCA (for peacetime service). Veterans with operational service or hazardous service are not covered by this instrument - they would be assessed under the reasonable hypothesis standard using a different Statement of Principles (likely one made under subsection 196B(2) of the VEA). The instrument therefore affects a narrower cohort than might be assumed. It also affects the decision‑makers within the Department of Veterans’ Affairs and the Military Rehabilitation and Compensation Commission, who are bound to apply these factors when determining eligibility for pension, treatment benefits, or other compensation. Medical practitioners who provide evidence in support of claims are indirectly affected, because their reports must address the specific factors: for example, quantifying cumulative sun exposure in hours and specifying latitude zones, or confirming the history of transplantation, PUVA therapy, or medication use. Legal practitioners and advocates representing veterans must be familiar with the precise definitions and the latitude weighting schedule, because errors in applying the equivalent sunlight exposure formula could lead to incorrect denials. The instrument also affects researchers and epidemiologists who rely on these Statements of Principles as standardised causal frameworks for veterans’ health studies. Compliance professionals within veterans’ organisations may need to update internal guidance to reflect the new sunrise date (26 July 2021) and the repeal of the 2012 instrument. The instrument does not affect civilians or current serving members under the Defence Force Discipline Act, except insofar as they may later become veterans. The narrow definition of “relevant service” means that many veterans with operational service in tropical areas (for example, Vietnam or the Pacific) will not be able to use this instrument - they must rely on the reasonable hypothesis SoP, which may have different factors. This creates a bifurcated system where the evidentiary burden differs depending on the character of service.

The instrument does not impose duties directly on individuals in the manner of a regulatory statute. Instead, it creates a legal presumption that if at least one of the factors in section 9 exists and is related to the person’s relevant service, then solar keratosis or death from solar keratosis is taken to be connected with that service for the purposes of the compensation legislation. This confers a right on the claimant to have their claim assessed in accordance with the instrument. The corresponding duty rests on the decision‑maker - the Repatriation Commission or the Military Rehabilitation and Compensation Commission - to apply the instrument faithfully. If a claimant can establish, on the balance of probabilities, that they have a factor, the decision‑maker must find that the condition is service‑related, absent contrary evidence. There is no duty on the claimant to prove the factor beyond the civil standard; but the evidentiary burden remains on the claimant to produce evidence for each element. The instrument also incorporates, through section 11, the factors from any other Statement of Principles that applies to an injury or disease referred to in the factors. For example, if the factor refers to a condition such as immunosuppression from transplantation, the decision‑maker must look to the relevant SoP for that condition. This creates a cascading duty to apply multiple instruments. The right to claim is procedural rather than substantive: the instrument does not create an entitlement to compensation; it merely removes one barrier to establishing a causal link. The instrument also preserves the ability of the decision‑maker to consider evidence outside the factors if medical‑scientific evidence changes, but only through amendment of the SoP by the Authority. Claimants have no private right of action under this instrument; challenges must be through the Administrative Appeals Tribunal or judicial review. The definition of “relevant service” in the dictionary restricts the class of persons who can benefit: only those with eligible war service (non‑operational), defence service (non‑hazardous), or peacetime service under MRCA. Those with operational or hazardous service are excluded and must rely on a different standard. This differential treatment is inherent in the Veterans’ Entitlements Act, not in this instrument itself.

This instrument contains no penalty provisions. It is a legislative instrument that operates within the veterans’ compensation framework, not a criminal or regulatory statute. Enforcement is therefore not a concept that applies directly. The practical consequence of non‑compliance by a decision‑maker - for example, misapplying the equivalent sunlight exposure calculation or ignoring a factor - is an incorrect decision that may be overturned on review. There is no fine, sanction, or criminal liability for a decision‑maker who errs, unless the error rises to the level of misconduct or fraud. For claimants, making a false or misleading statement in support of a claim could attract penalties under the Criminal Code (Cth) or the Veterans’ Entitlements Act itself, but the SoP does not create any specific offence. The instrument is enforced indirectly through the appeals process. If the Authority were to fail to publish a properly made SoP, or include ultra vires factors, the instrument could be challenged in the Federal Court on jurisdictional grounds, but that is a constitutional or administrative law remedy, not an enforcement mechanism. The instrument also does not impose any compliance obligations on medical practitioners or hospitals; it merely defines what evidence will be relevant. The practical enforcement pressure falls on the claimant, who must assemble proof of the factor or face denial. There is no duty on the Department to proactively search for evidence; claimants bear the burden. The lack of penalties means the instrument’s effectiveness relies on the integrity of the claims process and the threat of adverse AAT or court rulings. The Authority itself is not subject to any enforcement in relation to this SoP, other than the possibility of judicial review if it makes a decision without sound medical‑scientific evidence (contrary to its statutory mandate). In summary, the instrument is a rule of evidence and causation, not a coercive regulatory tool.

The instrument is made under subsection 196B(3) of the Veterans’ Entitlements Act 1986, which is the enabling provision for Statements of Principles on the balance of probabilities standard. It also references section 120B of the VEA and section 339 of the MRCA, which are the operative provisions that direct decision‑makers to apply these SoPs in determining whether an injury or disease is service‑related. The instrument is therefore subordinate to those provisions: if there is a conflict, the primary legislation prevails. The instrument expressly repeals the earlier Statement of Principles concerning solar keratosis No. 74 of 2012. Any claim determined after 26 July 2021 must be assessed under the new instrument, not the old one. Section 11 of the instrument creates an important intersection with other Statements of Principles: if a factor in section 9 refers to an injury or disease for which another SoP has been determined under subsection 196B(3), the factors in that other SoP apply as in force from time to time. For example, factor 9(4) refers to taking hydroxyurea or voriconazole, which are medications associated with specific side effects. If a claimant had a prior condition from taking those drugs, the SoP for that condition might also be relevant. This creates a cascading system where multiple SoPs can be engaged in a single claim. The instrument also interacts with the ICD‑10‑AM classification system: subsection 7(3) notes that solar keratosis attracts code L57.0, but the meaning in the instrument overrides the coding. This means that a doctor’s use of the code is not determinative; the clinical definition in the instrument governs. The instrument interacts with the definition of “relevant service” in the VEA and MRCA. The dictionary cross‑references those Acts, so changes to the primary law would flow through. The instrument also sits alongside the reasonable hypothesis SoPs made under subsection 196B(2) for the same condition. Although a separate instrument exists for the reasonable hypothesis standard (likely with different or less stringent factors), this instrument does not refer to it. Practitioners must be careful to use the correct SoP based on the character of service. The instrument does not interact with state workers’ compensation laws, the Fair Work Act, or general tort law; it is confined to the Commonwealth veterans’ compensation system.

This instrument was made on 25 June 2021, with the common seal of the Repatriation Medical Authority affixed by the Chairperson, Professor Nicholas Saunders AO. It commences on 26 July 2021. It repeals the Statement of Principles concerning solar keratosis No. 74 of 2012, which had been made under the same enabling provision (subsection 196B(3) of the VEA). The instrument does not contain any transitional provisions; any claim not finally determined before commencement is likely to be assessed under the new instrument, consistent with the usual practice. The source provides no amendment history beyond the repeal; the instrument itself has not been subsequently amended according to the text supplied. Under the Legislation Act 2003, later amendments would be registered on the Federal Register of Legislation. The Authority does not specify why the previous SoP was replaced, but the standard practice is to update SoPs periodically as medical‑scientific evidence evolves. The instrument includes a new definition of “equivalent sunlight exposure in other latitude zones” with a precise weighting schedule, which was absent in the 2012 instrument (or at least not publicly reproduced in the source). The inclusion of field cancerisation in the definition of solar keratosis is a notable expansion from the previous version. The definition of “organ or tissue transplantation” now explicitly excludes corneal transplant, which may not have been addressed before. The instrument also adds the factor for hydroxyurea or voriconazole (subsection 9(4)), which was not present in the 2012 instrument. The factor for inability to obtain appropriate clinical management (subsection 9(5)) is retained but with the limitation in section 10(2) that it only applies to aggravation of pre‑existing conditions. The PUVA therapy factor now requires that the first treatment commenced at least five years before clinical onset (a change from perhaps a different latency period). These changes mean that claims assessed under the repealed instrument might have succeeded or failed differently. The instrument does not contain a sunset clause or review date.

The source does not cite any litigation concerning this Statement of Principles. It is a relatively recent instrument (commenced July 2021), and as such there may not yet be published decisions from the Administrative Appeals Tribunal or the Federal Court that specifically interpret its terms. However, prior Statements of Principles concerning solar keratosis have been the subject of litigation in other contexts. For example, the 2012 instrument was likely considered in the course of making decisions on solar keratosis claims. The absence of a litigation history in the source means we cannot assume any authoritative judicial gloss on the definitions. It is possible that the meaning of “equivalent sunlight exposure” or the latitude weighting factor schedule will be tested if a claimant challenges a decision that relies on a strict mathematical application. Equally, the exclusion of Bowen disease and arsenical keratoses may be contested if there is diagnostic disagreement. The instrument’s interaction with other SoPs under section 11 may also generate disputes about which SoP should be applied to a particular factor. The note that solar keratosis can be difficult to visualise and may spontaneously regress may also be a point of contention in claims where the diagnosis is made long after exposure. The instrument also reverses the usual causation analysis: it prescribes specific factors rather than leaving the question to medical opinion. If a claimant proffers an alternative cause not listed, the decision‑maker must deny the claim even if a doctor thinks the condition was related to service. This could be grounds for a legal challenge if the Authority is shown to have ignored “sound medical‑scientific evidence” within the meaning of section 196B. The Federal Court has previously considered whether the Authority failed to take into account relevant information; any such challenge would be based on administrative law rather than on the instrument itself. In summary, while no specific litigation is identified in the source, the instrument’s detailed and rigid structure creates several interpretative questions that could eventually be litigated.

Several aspects of this instrument are easy to miss or misinterpret. First, the sunlight exposure factor in subsection 9(1) is not a simple “cumulative exposure to the sun” but requires exposure to “unprotected skin” at the “affected site”. That means a veteran who habitually wore a hat and a long‑sleeved shirt while serving in the tropics may have insufficient exposure to the face or arms if those areas were covered. The definition of “unprotected skin” excludes any sunscreen, clothing or other physical barrier - so even light‑duty uniforms that block some UV may count as protection. The latitude weighting factor schedule is counter‑intuitive: to achieve the equivalent of 4,500 hours in a tropical area, a person at latitude >45° to 65° must have 18,000 hours of unprotected exposure (4,500 ÷ 0.25). That is an enormous amount - far more than a typical career posting in southern Australia. The schedule does not allow for time in different latitude zones to be combined simply; the formula requires an average or segmented calculation. The instrument does not specify the time period over which the exposure must be accumulated - it could be over a lifetime, but it must be before clinical onset. Second, factor 9(5) regarding inability to obtain appropriate clinical management sounds like a catch‑all, but section 10(2) expressly limits it to material contribution or aggravation where the solar keratosis was suffered or contracted before or during relevant service but did not arise out of it. So it cannot be used to establish the initial onset of solar keratosis. Third, the exclusion of Bowen disease and arsenical keratoses means that a claimant diagnosed with Bowen disease (squamous cell carcinoma in situ) cannot rely on this SoP, even if the lesion is indistinguishable clinically from solar keratosis. A misdiagnosis could prejudice a claim. Fourth, the instrument only applies to claims on the balance of probabilities - that is, for non‑operational, non‑hazardous service. Many veterans assume all service is covered, but operational service (e.g., active deployment) falls under a different standard with different SoPs. Fifth, the definition of “organ or tissue transplantation” excludes corneal transplants, but includes “substance obtained from an organ or tissue”. This could cover grafts, but the precise scope may be disputed. Sixth, the PUVA therapy factor requires both a five‑year latency period from first treatment to clinical onset and at least 50 treatments. A veteran who had only 45 PUVA treatments does not meet the factor. Seventh, the medication factor requires taking hydroxyurea or voriconazole for at least three months before clinical onset. If the medication was stopped and then restarted, the continuous period requirement could be tricky. Eighth, the definition of “solar keratosis” in subsection 7(2) includes field cancerisation, which means that a claimant with apparently normal skin adjacent to a lesion might be considered to have solar keratosis across a broader area. That could be advantageous, but it also means that a lesion not diagnosed as solar keratosis could still be relevant if it is part of a field cancerisation. Finally, note that the instrument is a “Statement of Principles” not a “Determination”. It is binding, but it is not an Act. Practitioners must ensure they refer to the correct instrument number and commencement date when preparing submissions.

Compliance with this instrument means ensuring that, when a claim for solar keratosis is made for a person with relevant service, the decision‑maker correctly applies the factors in section 9 and the definitions in the dictionary. For claimants and their representatives, compliance involves gathering and presenting evidence that satisfies at least one factor. The most common factor is likely cumulative sunlight exposure. To satisfy factor 9(1), the claimant should provide a detailed service history that includes the locations where they served, the dates, and the duration of time spent outdoors with unprotected skin at the affected site. For each location, the latitude zone must be identified using the schedule. The total exposure hours must be multiplied by the latitude weighting factor to produce “equivalent” tropical hours. That equivalent figure must reach at least 4,500 hours. Record‑keeping is critical: unit diaries, personnel files, and personal records can help establish posted locations. If the claimant served in multiple latitude zones, each period must be calculated separately and summed. The exposure must be to “unprotected skin”. That means evidence that the claimant did not wear sunscreen, a hat, or clothing that covered the affected site. For facial lesions, if the claimant wore a slouch hat that shaded the face only partly, it may still be considered protected if the evidence shows a physical barrier. For claims based on organ or tissue transplantation (factor 9(2)), medical records confirming the transplant and the date before clinical onset are needed. The exclusion of corneal transplant must be noted. For PUVA therapy (factor 9(3)), records from a dermatologist or hospital showing that the first treatment was at least five years before diagnosis and that at least 50 treatments were administered are required. For the medication factor (9(4)), pharmaceutical records or prescription histories showing continuous use of hydroxyurea or voriconazole for at least three months before clinical onset are necessary. For the residual factor (9(5)), the claimant must show that they could not obtain appropriate clinical management - for example, because of lack of access to a dermatologist in a remote posting, or because the condition was not diagnosed despite symptoms. Importantly, this factor only applies to aggravation of a pre‑existing condition, so the claimant must also show that the solar keratosis existed before or during service but was aggravated by the inability to obtain management. The legal standard is balance of probabilities, so the evidence need only tip the scales. The claimant is not required to disprove alternative causes. Decision‑makers must check that the factor is “related to the relevant service” under section 10(1). That means the exposure or event must have occurred during service. For example, sunlight exposure during a holiday leave in Thailand may not count unless it is part of service. The instrument does not specify how to treat cumulative exposure that straddles service and non‑service periods; in practice, the entire exposure history may be considered, but the connection to service must be established. Finally, practitioners should verify they are using the correct instrument (No. 80 of 2021) and not the repealed 2012 version. The instrument includes references to other SoPs via section 11; if the factor mentions a disease for which another SoP exists, that SoP’s factors must also be considered. For example, if the PUVA therapy caused another skin condition, the claimant might need to satisfy the factors under that condition’s SoP as well. Keeping a current SoP register is advisable.