Statement of Principles concerning tuberculosis (Balance of Probabilities) (No. 48 of 2024)

The instrument operates around several key legal and medical concepts. First, “tuberculosis” itself is defined narrowly under subsection 7(2) to mean infection caused by bacteria belonging to the Mycobacterium tuberculosis complex, explicitly excluding atypical mycobacteria such as M. avium, M. intracellulare, M. kansasii, M. marinum and M. ulcerans. This definition overrides the ICD-10-AM codes listed (A15-A19) in favour of the specific microbiological classification. That means a veteran diagnosed with a mycobacterial infection that is not within the M. tuberculosis complex cannot rely on this SoP at all, even if the clinical presentation is similar. The instrument introduces the critical distinction between “clinical onset” and “clinical worsening”. Factors 1 to 5 in section 9 apply to the clinical onset of tuberculosis: exposure to the bacteria, living or working in a high-incidence area (≥50 cases per 100,000 per year), consuming unpasteurised infected products, BCG-based therapy or vaccination, and inability to access appropriate vaccination. Factors 6 to 16 apply only to “clinical worsening” of tuberculosis, meaning they can only be used where the veteran already had tuberculosis before or during their service (but did not acquire it from service) and the factor contributed to a material worsening. This is explicitly stated in subsection 10(2). The instrument also introduces a distinction between “active tuberculosis disease” and “latent tuberculosis”. Latent tuberculosis is included within the definition of tuberculosis (paragraph 7(2)(b)(i)), but many of the factors - especially those for worsening - are framed in terms of “active tuberculosis disease” (e.g., factor 4 for BCG-related infection). The definition of “active tuberculosis disease” in the dictionary requires that the bacteria are multiplying and inducing an inflammatory response. This imposes an additional evidentiary hurdle, because a claimant with latent infection only will not satisfy factor 4. Another key concept is “relevant service”, which is defined restrictively in the dictionary as: eligible war service (other than operational service) under the VEA; defence service (other than hazardous service and British nuclear test defence service) under the VEA; or peacetime service under the MRCA. This means the instrument does not apply to claims for operational service (e.g., service in a combat zone) or for hazardous service or British nuclear test defence service. Those claims are governed by separate SoPs made under different subsections and with different standards of proof. Finally, the instrument incorporates a cross-reference mechanism at section 11: if a factor in section 9 refers to an injury or disease for which another SoP exists (e.g., cirrhosis, diabetes mellitus, hepatitis C), then the factors in that other SoP apply. This avoids duplication but also means the veteran must satisfy both the TB SoP and the relevant SoP for the underlying condition.

The instrument directly affects veterans and members of the Australian Defence Force who claim compensation under the VEA or the MRCA for tuberculosis, but only those whose service is classified as “relevant service” as defined. In practice, that excludes most veterans with operational service (who are covered by a different SoP under subsection 196B(2) for reasonable satisfaction). The primary groups are: veterans with eligible war service that is not operational (e.g., home defence, certain training, peacetime garrison duty); veterans with defence service that is not hazardous and not British nuclear test defence service; and current or former permanent force members with peacetime service under the MRCA. The instrument also affects decision-makers within the Department of Veterans’ Affairs, the Military Rehabilitation and Compensation Commission, and the Veterans’ Review Board. They must apply the precise quantified thresholds when assessing whether a factor exists. For example, they must determine whether the veteran was exposed to droplet nuclei or aerosols from an infectious person, or whether they lived or worked in an area with an annual incidence of at least 50 cases per 100,000 population. The instrument also affects medical practitioners who provide evidence for claims. They must be familiar with the definitions in the dictionary - such as “equivalent inhaled glucocorticoid”, “immunosuppressive drug”, “severe malnutrition” (BMI ≤ 18.5 kg/m² with protein-calorie malnutrition), and the specific thresholds for silica exposure (3,000 hours enclosed, 6,000 hours open). The instrument creates compliance burdens for veterans who must document their exposure history, sometimes years or decades after the event. The requirement that the factor must be “related to the relevant service rendered by the person” (section 10) compels the veteran to establish a causal nexus between service and the factor. For instance, a veteran who lived in a high-incidence area before service but later served in a different area may struggle to link that factor to service unless the service itself caused the inability to leave that area. The instrument also affects legal representatives, who must advise clients on whether the medical evidence can meet the specific thresholds. The practical effect is narrower access to compensation than under the previous 2015 SoP, especially where the new instrument introduces new thresholds (e.g., the 50 per 100,000 incidence rate replaces a prior standard, and the specific daily dose for glucocorticoids may be more restrictive). The instrument also affects the taxpayer, because each successful claim results in compensation payments. The stricter evidentiary thresholds may reduce the number of successful claims, reducing public expenditure but also potentially denying compensation to some veterans whose TB is genuinely service-related but who cannot meet the precise quantification.

The instrument does not impose duties on private persons; it structures a decision-making process within the compensation system. The key duty it creates is on the Repatriation Medical Authority to base its factors on “sound medical-scientific evidence”, which it asserts it has done in section 8. The instrument itself does not create any rights for veterans; rather, it sets conditions precedent for the right to compensation to be established. Under the VEA and MRCA, the entitlement to compensation for tuberculosis is contingent on the decision-maker being satisfied that the disease is connected to service. This SoP provides the framework for that satisfaction on the balance of probabilities. The rights of veterans are therefore derivative: they have the right to have their claim assessed in accordance with this instrument, and if they can prove at least one factor exists and that factor is related to service, they have a right to a positive finding that the disease is service-related. Veterans also have the right to rely on the cross-reference mechanism in section 11: if a necessary factor involves another disease (e.g., cirrhosis or diabetes), they can rely on the relevant SoP for that disease rather than having to prove it independently. Conversely, the instrument creates a right for the decision-maker to reject a claim if none of the factors are present, even if the veteran has a strong intuitive case. For example, a veteran who contracted tuberculosis from a fellow soldier during service but cannot pinpoint the exact 14-day exposure window or cannot prove the source person had “infectious tuberculosis” as defined (which requires laboratory, radiological or contact tracing evidence of transmission) may fail. The dictionary definition of “infectious tuberculosis” is demanding: it requires active TB confirmed by specific laboratory tests (sputum smear, culture, nucleic acid) or radiological or contact tracing evidence indicating transmission. That means a veteran who was exposed to someone with undiagnosed or subclinical TB cannot rely on factor 1 unless they can produce evidence of the source person’s infectiousness. The instrument also creates a right to rely on latent tuberculosis as a form of TB covered by the SoP (subsection 7(2)(b)(i)), but then factor 4 (for BCG-related TB) requires “active tuberculosis disease”, so those with latent infection from BCG cannot use that factor. This inconsistency may generate disputes. Veterans also have a right to argue that “inability to obtain appropriate clinical management” (factor 16) or “inability to access appropriate tuberculosis vaccination” (factor 5) are met, but these are inherently subjective and require consideration of contemporary medical standards, which will vary over time and location.

This instrument does not contain any penalties. It is not a regulatory instrument that prohibits conduct or imposes fines. It is an evidentiary standard used within the administrative compensation system. The only enforcement mechanism is the decision-maker’s obligation to apply the instrument correctly. If the Department or Commission makes an error - for example, by incorrectly applying the threshold for “equivalent inhaled glucocorticoid” or misinterpreting “relevant service” - the veteran can seek review by the Veterans’ Review Board, the Administrative Appeals Tribunal, or ultimately the Federal Court. The instrument therefore operates as a rule of law that can be judicially enforced to compel the correct application of the factors. However, there is no penalty for a decision-maker who gets it wrong; the remedy is a reconsideration of the claim. For the veteran, the consequence of failing to satisfy the instrument is denial of compensation. The instrument also has a temporal effect: it applies to claims made under the VEA and MRCA from its commencement date (23 July 2024) onward, as per section 5. Any claim made before that date but not yet determined may also be affected, depending on transitional provisions in the VEA - but the instrument itself does not address transitional arrangements. The repeal of the 2015 SoP means that the previous factors are no longer operative. A veteran whose claim was rejected under the 2015 SoP but who now meets the new factors may be able to make a new claim, but there is no automatic reopening. Conversely, a veteran who might have succeeded under the 2015 SoP but fails under the new instrument will lose their entitlement if they have not yet lodged a claim. This shift in thresholds imposes a cost on veterans who must now reassess their position. The instrument itself does not provide a grace period or savings provision.

The instrument is made under subsection 196B(3) of the Veterans’ Entitlements Act 1986, so its primary interaction is with the VEA itself. Section 120B of the VEA requires that on the balance of probabilities, a determination be consistent with a Statement of Principles if one exists. So this SoP is mandatory for non-operational service claims under the VEA. It also applies to claims under section 339 of the Military Rehabilitation and Compensation Act 2004, which has equivalent provisions. Both Acts require that the Repatriation Medical Authority’s SoPs be used as the sole basis for connecting disease to service when a relevant SoP exists. The instrument also interacts with other SoPs through section 11. If a factor refers to an injury or disease that itself is covered by an SoP (e.g., cirrhosis, diabetes mellitus, hepatitis C), then the factors in that other SoP must be applied. This creates a chain of causation: a veteran relying on factor 9 (having diabetes mellitus) must satisfy the diabetes SoP to establish that the diabetes is service-related, then use that to satisfy the TB SoP. The note in the dictionary for “relevant service” excludes operational service, hazardous service and British nuclear test defence service. Those categories are governed by different SoPs made under subsection 196B(2) of the VEA, which use the “reasonable satisfaction” standard. The instrument therefore divides the veteran population into two tracks. A veteran with mixed service (e.g., some operational, some non-operational) may have their TB claim assessed partly under this SoP and partly under the operational SoP, depending on which service is claimed as the cause. Additionally, the instrument does not interact with state or territory workers’ compensation laws or private insurance. It is exclusively part of the Commonwealth military compensation scheme. It does not affect private law rights, such as a tort claim against a third party for exposure. It is also separate from the National Disability Insurance Scheme or Medicare; a veteran can receive treatment for TB through public health regardless of this SoP. The instrument also does not affect criminal liability; TB exposure is not criminalised under this SoP.

The instrument is a standalone replacement document. It notes only one prior instrument: the Statement of Principles concerning tuberculosis No. 82 of 2015 (F2015L00914), which is repealed. There is no mention of earlier iterations. The instrument was determined by the Repatriation Medical Authority on 21 June 2024 and commences on 23 July 2024. The reason for the replacement is not stated in the instrument, but the authority cites “the sound medical-scientific evidence available” as the basis for the factors. The amendment history is therefore simple: from 2015 to 2024, the factors changed. A side-by-side comparison of the 2015 and 2024 instruments would be needed to identify specific changes. For example, the 2024 instrument includes factor 14 (alcohol use disorder), factor 15 (hepatitis C infection), and factor 16 (inability to obtain appropriate clinical management), which may be new. The smoking factor (factor 12) now specifies “at least 1 cigarette per day for at least 12 months”, which may be more precise. The silica exposure factors (10 and 11) now specify hour thresholds (3,000 and 6,000 hours). The incidence rate for high-incidence areas (factor 2) is now 50 cases per 100,000 - the 2015 version may have had a different threshold. The definition of “equivalent inhaled glucocorticoid” now includes specific reference to triamcinolone, budesonide, fluticasone and others. The dictionary definition of “active tuberculosis disease” is new. The dictionary also now defines “protein-calorie malnutrition” which feeds into “severe malnutrition”. These changes reflect evolving medical evidence, but they also shift the evidentiary burden. Importantly, the instrument does not include any savings or transitional provisions. That means a veteran whose claim was lodged but not determined before 23 July 2024 may have the 2024 instrument applied if the decision is made after that date, unless the VEA provides otherwise. The Attorney-General’s legislative instrument rules generally require that an instrument applies from its commencement date unless it expresses a contrary intention; there is no such expression here.

The instrument itself is new (commenced 23 July 2024), so there is no litigation history directly interpreting it. However, the general legal principles governing Statements of Principles under the VEA are well-established in Federal Court and High Court case law. Courts have held that the SoP is binding on decision-makers and that the factors must be construed according to their ordinary meaning. Importantly, the High Court in Repatriation Commission v Heazlett (2005) and later cases confirmed that the SoP sets a minimum threshold: if a factor is present and related to service, the claim must succeed; but the absence of all factors is fatal. The new instrument’s precise quantitative thresholds will likely be the subject of future litigation. For example, factor 2 requires that the individual had “no negative test results for tuberculosis in any intervening period” between living/working in the high-incidence area and the onset of TB. The meaning of “negative test results” could be contested - does a single negative blood test or skin test break the chain? The definition of “equivalent inhaled glucocorticoid” might be challenged if a veteran was taking a glucocorticoid not listed but claimed to be therapeutically equivalent. The “unpasteurised milk” factor (factor 3) will require proof that the dairy product was from an infected animal, which may be impossible to prove years later. The silica factors (10 and 11) will generate factual disputes about precise cumulative hours and whether the exposure was in an enclosed space or open environment. The “inability to obtain appropriate clinical management” factor (16) invites litigation over what constitutes “appropriate” - is it the standard of care in Australia, or the standard available to the veteran in their specific service context? The “inability to access appropriate tuberculosis vaccination” factor (5) also raises questions: under which “contemporary medical standards” must the vaccination be unavailable? The instrument defines “relevant service” to exclude operational service; any veteran who mistakenly relies on this SoP for an operational service claim will be rejected, but on review the decision may be remade under the correct SoP. It is likely that some veterans will challenge the validity of the instrument itself on grounds that it is not based on “sound medical-scientific evidence” (per section 8). The Repatriation Medical Authority’s fact-finding process is subject to judicial review, though such challenges are rare and difficult.

Several traps await the unwary. First, the definition of “relevant service” excludes operational service, hazardous service and British nuclear test defence service. A veteran who served in Afghanistan, Iraq, or other combat zones must use a different SoP with a higher standard of proof. Mistaking this SoP for the applicable one will waste time and money. Second, factor 1 requires exposure “at least 14 days before the clinical onset”. If the exposure occurred only 13 days before symptoms, the factor is not satisfied. Third, factor 2 imposes a “no negative test results” condition. If a veteran had a negative tuberculin skin test or negative IGRA test after leaving the high-incidence area but before developing TB, the factor ceases to apply. Many veterans may be unaware that they had such a test. Fourth, factor 4 applies only to “active tuberculosis disease due to infection with Mycobacterium bovis BCG”. That limits it to BCG-related TB; if the veteran has TB from a different strain (e.g., M. tuberculosis) despite receiving BCG, factor 4 is irrelevant. Moreover, the factor requires that the BCG therapy or vaccination occurred “before the clinical onset”, but latent infection is not enough - the disease must be active. Fifth, factor 5 (inability to access appropriate TB vaccination) is open-ended but likely difficult to prove. The veteran must show that contemporary medical standards required vaccination, but they could not access it. The Department may argue that the veteran could have obtained vaccination post-service, breaking the nexus. Sixth, the worsening factors (6-16) apply only where the person’s TB was suffered or contracted before or during (but did not arise out of) relevant service. That means if the veteran contracted TB as a result of service (e.g., from a fellow soldier), the worsening factors cannot be used - only the onset factors (1-5) can. The onus is on the veteran to characterise their disease correctly. Seventh, the dictionary definition of “chronic renal failure” requires either a GFR <15 mL/min/1.73 m² for at least three months, or need for dialysis or transplantation, or currently on chronic dialysis. That is a very high threshold; ordinary renal impairment will not suffice. Eighth, “severe malnutrition” requires both protein-calorie malnutrition and a BMI ≤18.5. A veteran may be underweight but not protein-calorie malnourished, or vice versa. Ninth, the smoking factor (12) applies only to pulmonary tuberculosis and only for the 12 months before clinical worsening - not to onset. A veteran who smoked decades ago but quit before worsening cannot use it. Tenth, the “equivalent inhaled glucocorticoid” definition is fixed to three named drugs plus a therapeutically equivalent dose. If the veteran used a drug not listed, they must prove therapeutic equivalence, which may require expert evidence. Eleventh, the silica factors (10 and 11) require that the dust was inhaled “at the time material containing crystalline silica was being produced, excavated, drilled, cut or ground, or used in construction, manufacturing, cleaning or blasting”. Incidental exposure (e.g., walking through a building site after work is done) does not count. The hours thresholds are high: 3,000 hours enclosed is roughly 1.5 years of full-time work; 6,000 hours open is about 3 years full-time. Finally, the “being exposed to bacteria” definition requires either inhaling droplet nuclei, living/working with an infectious person, handling infected material, or receiving an infected transplant. Touching a contaminated surface is not covered.

For a veteran or their representative, compliance means assembling evidence that at least one factor in section 9 exists and is related to the veteran’s relevant service. The steps are pragmatic. First, confirm that the claim is for non-operational service under the VEA or peacetime service under the MRCA. If the veteran has operational service, seek advice under the correct SoP. Second, obtain the veteran’s full medical history regarding TB: date of diagnosis, whether it was latent or active, pulmonary or extrapulmonary, and whether it was a new onset or a worsening of an existing condition. Third, collect service records showing where and when the veteran served. This is critical for factor 2 (high-incidence area) and for proving the factor’s relation to service. For factor 2, obtain official incidence data for the relevant location and year (e.g., WHO Global Tuberculosis Report). The threshold is 50 cases per 100,000 population per year; many developing countries exceed this, but service in Australia itself would generally not meet it unless the veteran served in an indigenous community with high rates. Fourth, for exposure (factor 1), gather evidence of contact with an infectious person during service - for example, if a fellow soldier was diagnosed with active TB and the veteran shared accommodation. The definition of “infectious tuberculosis” requires laboratory, radiological or contact tracing evidence of transmission. That means the source person’s medical records or contact tracing reports must be located. Fifth, for consumption of unpasteurised milk or uncooked meat (factor 3), obtain records of the veteran’s diet during service, including any known outbreaks of bovine TB. This is rare in modern Australia but may apply to veterans who served overseas or in historical contexts. Sixth, for BCG-related factors (4), obtain vaccination records or records of intravesical BCG therapy. Seventh, for inability to access vaccination (factor 5), obtain evidence that vaccination was recommended by contemporary medical standards (e.g., for healthcare workers, immigrants from high-burden countries) but was not available to the veteran during service. Eighth, for worsening factors (6-16), collect medical evidence of the underlying condition at the time of worsening. For example, for immunosuppressive drugs, obtain a prescription history showing the drug name and dosage. For silica exposure, obtain work records, union records, or contemporaneous reports showing that the veteran worked in an enclosed space with respirable crystalline silica for the required hours. For smoking and alcohol, obtain self-reporting or medical records quantifying consumption. Ninth, ensure all evidence is linked to service: the veteran must show that the factor occurred during or as a result of their service. For example, a veteran who developed diabetes mellitus after service cannot use factor 9 unless the diabetes itself is service-related under the diabetes SoP. Tenth, keep a chronological log of all test results for TB, because factor 2 is particularly sensitive to intervening negative tests. If the veteran had a negative Mantoux test after leaving a high-incidence area but before developing TB, factor 2 is lost; consider relying on factor 1 instead if exposure can be proved. Eleventh, seek early legal advice if the claim hinges on the subjective factors (5, 16) or on factors requiring expert quantification (6, 7, 10, 11, 12, 13). The Department may reject the claim on the basis that the evidence does not meet the precise thresholds, and the veteran will need specialist representation at review. Finally, be aware that the instrument is new; case law interpreting it will develop. Check for updates on the Federal Register of Legislation and monitor decisions of the Administrative Appeals Tribunal for guidance. Compliance is not a one-time step; it requires building a robust evidence bundle that directly addresses each element of the chosen factor and its connection to service.