Statement of Principles concerning strongyloidiasis (Balance of Probabilities) (No. 64 of 2019)

The instrument directly affects veterans and members of the Australian Defence Force who make claims for strongyloidiasis under the VEA or MRCA. Specifically, it covers persons with eligible war service (non‑operational service rendered between certain dates or in specified operations), defence service (non‑hazardous peacetime service), and peacetime service under the MRCA. It does not apply to claims based on operational service under the VEA (which would be assessed under the reasonable hypothesis standard), hazardous service, or British nuclear test defence service. This means a significant portion of the veteran population - those with operational service - is not subject to this instrument. The instrument also affects decision makers at the Department of Veterans' Affairs, the Veterans' Review Board, and the Administrative Appeals Tribunal, who must apply the factors rigidly. Medical practitioners preparing reports for claimants must tailor their evidence to address each of the five factors; generic medical evidence linking strongyloidiasis to service without reference to a specific factor will not satisfy the instrument. Legal practitioners and advocates representing veterans must understand the instrument’s closed‑list structure: they cannot argue alternative causal pathways not listed in section 9. The instrument also implicitly affects the broader community of medical specialists, particularly infectious disease physicians and gastroenterologists, who may be asked to assess whether a particular exposure (e.g., walking barefoot in contaminated soil during service) occurred and whether it is more probable than not the cause of infection decades later. The autoinfective cycle noted in the instrument means that even a single exposure during service can produce a lifelong infection, so the instrument extends the potential liability of the Commonwealth long after the service period ends. The instrument’s definitions of immunocompromised state as specified and chronic renal failure also affect those with concurrent medical conditions; claimants with those conditions may more easily satisfy factor 3 for clinical worsening, but only if the disease was contracted before service. The instrument does not affect civilian claims or those under the Safety, Rehabilitation and Compensation Act 1988, because it is made under the VEA and MRCA only.

This instrument imposes no duties on private individuals. It creates evidentiary criteria that must be satisfied before a right to compensation arises. The only duty is on the decision maker: to assess a claim for strongyloidiasis using the factors set out in section 9 and the relationship provisions in section 10. The decision maker must apply the instrument as a binding legislative instrument; they cannot accept a causal link established by medical evidence that does not fit one of the five factors. The right of the claimant is to have their claim assessed against these factors, and if at least one factor is established and related to service, the decision maker should find the condition connected on the balance of probabilities. The instrument does not confer a substantive right to compensation; that right arises under the VEA or MRCA upon satisfaction of all other conditions (e.g., degree of incapacity, financial loss). The instrument’s note in section 8 says the Authority is of the view that strongyloidiasis can be related to relevant service; this is a statement of policy conclusion, not a legal right. A claimant has the right to challenge an adverse decision in the Veterans' Review Board and the Administrative Appeals Tribunal, but those bodies are bound by the same instrument. The instrument also implies a right (or a burden) on the part of the decision maker to consider factor 5 - inability to obtain appropriate clinical management - which is open‑ended and may require an assessment of whether the veteran had access to adequate medical care for strongyloidiasis during or after service. That factor is vague and could generate disputes about what constitutes “appropriate” clinical management. Section 11 provides that if a factor refers to another disease for which a Statement of Principles exists, the factors in that other instrument apply. This cross‑reference right means a claimant who establishes, say, chronic renal failure (which has its own SoP) need only satisfy that SoP to establish the factor for strongyloidiasis. This is a procedural efficiency but also adds complexity.

This instrument contains no penalty provisions. It is not a criminal enforcement instrument; it is a rule for determining whether a condition is service‑related for compensation purposes. The “enforcement” mechanism is the claims process itself. If a claimant fails to establish one of the factors in section 9, the claim will be rejected by the decision maker. That rejection is reviewable, but there is no fine, sanction, or punitive measure against the claimant for making an unsuccessful claim. The instrument does not empower the Authority or the Department to investigate or prosecute false claims; that would be a matter for separate fraud provisions in the VEA. For the decision maker, failure to apply the instrument correctly could result in an adverse decision being set aside on review, but again no personal penalty attaches. The instrument’s enforcement is thus indirect: it shapes the outcome of compensation claims by narrowing the scope of acceptable evidence. The practical enforcement burden falls on the veteran, who must gather evidence to satisfy a factor. For example, proving cutaneous or mucosal contact with larvae (factor 1) decades after service may require detailed service records, reconstruction of environmental conditions, and expert parasitological opinion. If the veteran cannot meet that burden, the claim fails, operating as a de facto enforcement of a restrictive causation standard. The instrument also indirectly imposes a compliance cost on the Department, which must train staff to apply the factors and maintain consistency across claims. The use of a closed list of factors reduces administrative discretion but may also increase litigation if veterans seek to challenge the list itself on grounds that it excludes other plausible causal pathways. No remedy exists within this instrument for such a challenge; any argument that the Authority’s list is incomplete would require a merits review or judicial review of the Authority’s decision to make the instrument, not an application of the instrument itself.

The instrument is made under subsection 196B(3) of the VEA and therefore sits within the veterans' entitlements legislative framework. It operates alongside the VEA’s substantive provisions on eligibility and assessment, particularly sections 120 (standard of proof for operational service) and 120B (standard for non‑operational service). The instrument explicitly applies only to claims to which section 120B of the VEA or section 339 of the MRCA applies; it does not apply to operational service claims under section 120 of the VEA, which use a reasonable hypothesis standard and are governed by a separate Statement of Principles for that standard (likely No. 63 of 2019, not provided). The instrument replaces the earlier Statement of Principles No. 89 of 2010, so any pending claims or reviews that had not been finally determined must be assessed under this instrument from 22 July 2019. The instrument also cross‑references ICD‑10‑AM for classification purposes but makes clear that the substantive meaning of strongyloidiasis is as defined in subsection 7(2), overriding any variation in the coding system. Section 11 provides that if a factor in this instrument refers to an injury or disease for which another Statement of Principles has been determined under subsection 196B(3), then the factors in that other SoP apply. For example, factor 3 lists chronic renal failure as a condition causing an immunocompromised state; if a claimant has chronic renal failure, they would need to satisfy the SoP for chronic renal failure to use that factor. This creates a chain of dependencies. The instrument also interacts with the MRCA through its definition of relevant service including peacetime service under that Act. The definition of relevant service in the dictionary excludes hazardous service and British nuclear test defence service; those types of service are covered by separate provisions. The instrument does not interact with state workers’ compensation laws or the Safety, Rehabilitation and Compensation Act 1988, because it is confined to the veterans’ jurisdiction. It also interacts with general principles of administrative law: decisions made under this instrument are reviewable in the Administrative Appeals Tribunal, which will apply the instrument as a binding legislative instrument. The instrument’s reliance on “sound medical‑scientific evidence” (section 8) is a statement of the Authority’s view, but it does not incorporate external medical guidelines; rather, it freezes the Authority’s assessment of the evidence at the time of making.

The instrument recites that it repeals the Statement of Principles concerning strongyloidiasis No. 89 of 2010 (F2010L02845). No other amendments are recorded in the instrument itself. The instrument commenced on 22 July 2019. There is no reference to any subsequent amendment instrument. The significance of the repeal is that the previous SoP contained different factors, definitions, or standards. The explanatory statement for this instrument (not provided) might detail the changes, but from the instrument alone we can infer that the Authority considered updated medical evidence sufficient to warrant a new instrument. The instrument does not carry any amendment history clauses beyond the repeal provision. Anything beyond that would be conjecture. The instrument is a standalone determination; it does not incorporate future amendments automatically. Any future change would require a new Statement of Principles revoking this one. The absence of an amendment history within the instrument means that practitioners must verify whether later instruments have been made by searching the Federal Register of Legislation. The instrument’s own provision for cross‑reference to other SoPs under section 11 means those SoPs may be amended independently, and the strongyloidiasis SoP will dynamically incorporate those amendments because it refers to “the factors in that Statement of Principles as in force from time to time”. Thus, although this instrument has a fixed substantive text, its practical operation can change if, say, the SoP for chronic renal failure is revised. That is an important design feature: the Authority can update factors for ancillary conditions without needing to revoke this instrument. The repeal of the 2010 SoP also extinguishes any legal expectations that claims might be assessed under the earlier, more generous or more restrictive factors. However, transitional provisions in the VEA itself may preserve the application of the old SoP for claims made before the commencement date of this instrument; the instrument does not address that.

The instrument itself contains no reference to any litigation. No cases are cited, and there is no statement about how the instrument has been interpreted by tribunals or courts. This is typical for a Statement of Principles; they are legislative instruments, not judgments. However, it is well known in the veterans’ law field that Statements of Principles have been frequently litigated in the Administrative Appeals Tribunal and the Federal Court on grounds such as whether the Authority complied with its statutory duty to determine the instrument on the basis of “sound medical‑scientific evidence”. The High Court in Repatriation Commission v Deledio (1998) established the framework for applying SoPs, but that case is not mentioned in this instrument. The instrument’s silence does not mean there is no relevant litigation; it simply means the drafter has not referenced any. As an analyst bound to the source, I cannot assert any specific litigation. The practical reality is that any SoP is likely to be challenged by applicants who argue that the factors are too restrictive, or that the Authority failed to consider certain evidence, or that the factors are not supported by sound medical‑scientific evidence. The Repatriation Medical Authority’s decisions to make SoPs are themselves reviewable, but that review rarely succeeds because the Authority has broad discretion. The absence of litigation history in the instrument means the reader must look elsewhere - to the Federal Register of Legislation’s “Related Documents” section or to legal databases - to find cases that have interpreted this particular SoP. For the purpose of this deep dive, we can note that the instrument’s factor 1 (cutaneous or mucosal contact) and factor 5 (inability to obtain appropriate clinical management) have been fertile grounds for dispute in other SoPs, but we cannot extend that speculation to this specific instrument without source.

Several provisions in this instrument create traps for the unwary. First, the definition of relevant service expressly excludes operational service (eligible war service that is operational service), hazardous service, and British nuclear test defence service. A veteran who served in a war zone and contracts strongyloidiasis during that deployment may not be covered by this instrument if their service is classified as operational; a different SoP (the reasonable hypothesis version) would apply. Practitioners must verify the service type before relying on this instrument. Second, the factors in sections 9(3) to 9(5) - immunocompromised state, alcohol use disorder, and inability to obtain appropriate clinical management - apply only to material contribution or aggravation, not to original onset, and only if the strongyloidiasis was suffered or contracted before or during (but did not arise out of) relevant service (section 10(2)). If the disease arose out of service, those factors cannot be used; the claim must rely on factors 1 or 2 instead. This severely limits the utility of those factors for many claimants. Third, factor 5 - inability to obtain appropriate clinical management - is extremely vague. It does not define “appropriate” or “clinical management”. A veteran who had strongyloidiasis diagnosed but was not offered treatment due to misdiagnosis or resource constraints might rely on this factor, but proving that the inability was related to service and that it caused clinical worsening is a high evidentiary hurdle. Fourth, the autoinfective cycle means that a single exposure during service can produce lifelong infection, but factor 1 requires showing “cutaneous or mucosal contact” with the larvae itself. It is not enough to show service in an endemic area; the veteran must prove actual contact with contaminated soil or mud. That may be impossible decades later, even if the veteran clearly served in a region where strongyloidiasis is prevalent. Fifth, the definition of immunocompromised state as specified requires a condition of “substantially lowered immune function”. The listed conditions are illustrative but not exhaustive; the note says examples. A veteran with mild immunosuppression not listed may fail the factor even if their immune function is compromised. Sixth, factor 2 (infected organ transplant) is unlikely to apply to most veterans but could catch a veteran who received a transplant from a donor who had strongyloidiasis; the transplant must occur within one year before clinical onset. Seventh, the Dictionary defines terminal event without reference to strongyloidiasis being the sole cause; it need only be “contributed to”. This broadens the potential for death claims, but the contribution must still be more probable than not. Eighth, the instrument does not address latency periods explicitly; the note says symptoms may appear “even up to several decades later”, so a claim based on exposure during service in the 1970s may succeed, but proving factor 1 will be extremely difficult. Finally, the instrument cross‑references other SoPs via section 11; a practitioner must ensure that any referenced SoP (e.g., for chronic renal failure) is still in force and is correctly applied.

Compliance with this instrument is not about meeting regulatory obligations; it is about satisfying a legal test to establish a service connection for strongyloidiasis. For a veteran or their representative, the first step is to identify which factor in section 9 might apply. The most common will be factor 1: cutaneous or mucosal contact with Strongyloides stercoralis larvae before clinical onset. To comply, the veteran must provide evidence of contact with moist soil, sediment, or mud contaminated with human or animal faeces, most likely in warm damp conditions with poor sanitation. Service records showing deployment to such areas, combined with expert evidence on the prevalence of strongyloidiasis and the likelihood of contact, can be used. If contact is impossible to prove directly, representatives may explore factor 3 (immunocompromised state at clinical worsening) but only if the disease existed before service. For that, the veteran must have a condition from the defined list (e.g., malignancy, HIV, chronic renal failure) and show that the worsening occurred during service or related circumstances. The decision maker must check that the condition meets the definitions in the Dictionary (e.g., chronic renal failure defined by GFR <15 mL/min/1.73 m² for 3 months or need for dialysis). Compliance also means ensuring that the factor is “related to the relevant service” per section 10(1). That requires a temporal or causal link between the factor and the service itself - not just that the disease occurred during service. For factor 1, the contact must have occurred during service. For factor 3, the immunocompromised state may have arisen from a condition caused by service (e.g., a haematological malignancy from radiation exposure), or the service may have aggravated it. The medical evidence must be explicitly directed to the factor, not general. The Department will apply the instrument strictly; a claim supported only by generic medical opinion that “it is possible” will fail. The representative should obtain a specialist report that identifies the specific factor and explains how the service‑related circumstances satisfy it. For factor 5, the practitioner must show that the veteran could not obtain appropriate clinical management - which might include evidence of misdiagnosis, lack of access to ivermectin, or delays in treatment - and that this was related to service (e.g., treatment at a base hospital with limited resources). Finally, practitioners must check for cross‑references: if using factor 3 and the veteran has chronic renal failure, they must also satisfy the SoP for chronic renal failure (which has its own factors). The date of the instrument (22 July 2019) is critical; claims made before that date may be assessed under the 2010 SoP. Compliance with the instrument is thus a technical, evidence‑intensive process that rewards careful preparation and penalises generic submissions.