Statement of Principles concerning tuberculosis (Reasonable Hypothesis) (No. 47 of 2024)

Tuberculosis (TB) definition. The instrument defines TB by reference to the causative organism: bacteria of the Mycobacterium tuberculosis complex. The definition is exhaustive and includes eight named species and the BCG vaccine strain. It also explicitly includes latent TB (asymptomatic, non‑infectious infection), pulmonary TB (concerning the lung or respiratory tract) and extrapulmonary TB (any other site). The instrument states that while TB attracts ICD‑10‑AM codes A15-A19, the meaning of tuberculosis in the instrument is the definition given in subsection 7(2), not the code. That is important because the ICD‑10‑AM classification may be narrower or broader in some respects; the instrument’s definition prevails.

Relevant service. The instrument applies only to specific types of military service: operational, peacekeeping, hazardous and British nuclear test defence service under the VEA, and warlike and non‑warlike service under the MRCA. It does not cover peacetime service under the VEA (which uses a different standard of proof - reasonable satisfaction rather than reasonable hypothesis). Nor does it cover Defence Force service not falling within these categories.

Reasonable hypothesis. This is the standard of proof for claims involving operational or hazardous service (and equivalents under MRCA). A reasonable hypothesis must be more than a mere possibility but less than a probability. The instrument’s factors are designed to demarcate the minimum factual circumstances that will amount to a reasonable hypothesis. If at least one factor is met and it is related to service (section 10), the hypothesis is raised and the decision‑maker must accept it unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination (VEA s 120(3)).

Clinical onset versus clinical worsening. The factors in section 9 are divided between those referencing “clinical onset of tuberculosis” (factors 1-5) and those referencing “clinical worsening of tuberculosis” (factors 6-19). The distinction has a significant practical effect. Factors 1-5 require the event or exposure to have occurred before the clinical onset - that is, before the first appearance of symptoms or signs of TB. Factors 6-19 apply only when the person already had TB (suffered or contracted before or during service) and the factor contributed to a material worsening of that condition. Section 10(2) expressly limits factors 6-19 to cases of material contribution or aggravation where the TB “was suffered or contracted before or during (but did not arise out of) the person’s relevant service”.

Exposure definition. “Being exposed to bacteria belonging to the Mycobacterium tuberculosis complex” is defined in the Schedule 1 dictionary by reference to four activities: inhaling droplet nuclei or aerosols; sharing living quarters or immediate work environment with an infectious person; handling infected pathological material; or receiving an infected tissue or solid organ transplant. This definition is broad and includes indirect exposure in health‑care or custodial settings.

Terminal event. The instrument extends TB to cover death where TB contributed to a terminal event such as pneumonia, respiratory failure, cardiac arrest, circulatory failure or cessation of brain function. That means a claim may succeed even if TB was not the direct cause of death, provided it contributed to the final sequence.

Factors based on incidence rates. Factor 2 allows a hypothesis based on living or working in an area with a TB incidence of at least 50 per 100,000 per year, but only if the person had no negative test results in any intervening period from that exposure to clinical onset. This prevents a claim where the person could demonstrate that they were not actually infected during the period of exposure.

Veterans and members. The primary affected individuals are veterans who have rendered operational, peacekeeping, hazardous or British nuclear test defence service under the VEA, and members who have rendered warlike or non‑warlike service under the MRCA. The instrument applies to claims made by those individuals for tuberculosis, as well as claims by dependants for death from tuberculosis where the deceased person had relevant service. The instrument does not benefit veterans or members with only peacetime service under the VEA (who remain subject to the “reasonable satisfaction” standard and may rely on a different, less prescriptive process).

Repatriation Commission and decision‑makers. The Repatriation Commission, the Veterans’ Review Board and, on appeal, the Administrative Appeals Tribunal must apply the instrument when determining claims. The instrument removes discretion as to what medical or scientific evidence is necessary to raise a reasonable hypothesis: if a factor is met and related to service, the hypothesis is raised. Decision‑makers cannot ignore a factor that is present, nor can they impose additional requirements not listed.

Legal and medical professionals. Advocates, solicitors and medical specialists advising veterans will need to familiarise themselves with the nineteen factors, the definitions and the temporal restrictions. The instrument creates a checklist that can be used to assess the strength of a claim before lodgement. For medical practitioners providing reports, the instrument defines what constitutes severe malnutrition (BMI ≤ 18.5 with protein‑calorie malnutrition), chronic renal failure (GFR <15 mL/min or dialysis or transplant), and immunosuppressive drugs (a defined list including oral corticosteroids, transplant rejection drugs, TNF‑α inhibitors and chemotherapeutic agents). Reports must address whether the veteran meets these thresholds, not the clinician’s own clinical judgment.

Australian Government as payer. The Commonwealth is the ultimate bearer of the cost. Any expansion of factors - particularly the new factor of inability to access vaccination, or the detailed silica dust thresholds - may increase the number of accepted claims. The 2024 instrument appears to include more pathways for clinical worsening than the 2015 version, which could increase claims for already‑accepted conditions that later worsen due to service‑related factors.

The Repatriation Medical Authority. The RMA is the rule‑maker. It determined under s 196B(2) that there is sound medical‑scientific evidence that TB can be related to relevant service. This is a gatekeeping function: if the RMA had not made that determination, no SoP could exist and claims would be assessed under the general law. The RMA will be affected by judicial review of its determinations; a challenge to the medical‑scientific basis could force a new determination.

Right to raise a reasonable hypothesis. A claimant has the right to have their tuberculosis claim assessed under the reasonable hypothesis standard if they have relevant service. The instrument defines the minimum factual content that will raise that hypothesis. Claimants are not required to prove all possible factors; they need only establish one factor that is related to the person’s service.

Duty to consider the factors. The Repatriation Commission and reviewing bodies must consider whether any of the nineteen factors exists in the claimant’s circumstances. They cannot rely on a general medical opinion that TB is or is not related to service without reference to the specific factors. If a factor is found to exist and is related to service, the decision‑maker must accept the reasonable hypothesis is raised, unless the decision‑maker is satisfied beyond reasonable doubt that there is no sufficient ground for the determination.

Temporal windows. The right to rely on a factor depends on timing. For factors 1-5, the factor must occur at least 14 days before clinical onset (or, for factor 2, before clinical onset with no intervening negative test). For factors 6-19, the factor must be present at or before the time of clinical worsening. Factor 7 (inhaled glucocorticoid) has a specific window: use for at least 3 months before worsening and last dose within 30 days before worsening. Claimants must provide evidence that the factor occurred within these windows.

Burden of proof on the claimant. It is the claimant’s responsibility to produce evidence that one of the factors exists. The instrument does not create a duty on the Department to inquire; rather, section 120A of the VEA requires the decision‑maker to determine the claim with regard to the SoP, and the claimant must raise the hypothesis with supporting evidence.

Right to rely on other SoPs by cross‑reference. Section 11 provides that if a factor refers to an injury or disease that is covered by another SoP (for example, factor 6 refers to “infection with human immunodeficiency virus” - HIV is itself a disease for which there is a separate SoP), then the factors from that other SoP apply. This means a claimant with HIV and TB does not need to separately establish the HIV-service link twice; the HIV SoP will govern whether the HIV is related to service. This cross‑referencing reduces duplication but means claimants must satisfy multiple SoPs.

No right to rely on factors not listed. The instrument is exhaustive for the purpose of a reasonable hypothesis. A medical opinion that TB is related to service on a basis not listed in section 9 cannot raise a reasonable hypothesis, unless it falls within the general law after the SoP is set aside (which is rare). So the factors operate as a code.

This instrument does not create offence provisions or civil penalties. Its enforcement mechanism is the claims adjudication process. The practical “penalty” for a claimant who cannot satisfy at least one factor is the rejection of their claim for a service‑related disability pension or compensation. For the Department, failure to correctly apply the instrument can lead to a decision being set aside on review, with cost consequences and possible back‑payment of benefits.

The instrument is a legislative instrument registered on the Federal Register of Legislation. It is subject to disallowance by either House of Parliament under the Legislation Act 2003, though in practice the RMA’s determinations are rarely disallowed. Non‑compliance with the procedures for making the instrument (such as failing to consider the required medical‑scientific evidence) could see the instrument declared invalid by a court, though such challenges are uncommon.

If a decision‑maker fails to apply the factors correctly or misinterprets the definitions, the claimant may seek merits review at the Veterans’ Review Board and then the Administrative Appeals Tribunal. If the Tribunal errs in law, the matter can be appealed to the Federal Court. There is no financial penalty imposed on individual decision‑makers; rather, the sanction is the reversal of the decision and possible costs order against the Commonwealth.

The instrument itself contains no sunset clause or review date. It remains in force until repealed by a later SoP. The RMA is required to keep SoPs under review, but there is no fixed interval. A claimant or the Department may request the RMA to consider amending the SoP, though the RMA is not obligated to do so.

Veterans’ Entitlements Act 1986 (VEA). The instrument is made under subsection 196B(2) of the VEA. It operates within the broader framework of the VEA, particularly sections 120 and 120A. Section 120 provides the standard of proof: for operational service, the decision‑maker must accept the claim unless satisfied beyond reasonable doubt that there is no sufficient ground. Section 120A requires that in applying section 120, the decision‑maker must have regard to any relevant SoP determined by the RMA. This instrument is that SoP for tuberculosis. It effectively circumscribes what can constitute a “sufficient ground” for the purpose of section 120(3).

Military Rehabilitation and Compensation Act 2004 (MRCA). The instrument applies to claims under the MRCA by virtue of its application provision (section 5) and the cross‑reference to section 338 of the MRCA. Section 338 of the MRCA requires that the Military Rehabilitation and Compensation Commission, when determining whether a disease is related to service, must have regard to any relevant SoP. This instrument therefore binds the MRCA decision‑makers as well. The MRCA uses a different standard of proof (reasonable satisfaction) for warlike and non‑warlike service, but the SoP still applies: the factor establishes a reasonable hypothesis, and the Commission must then be satisfied that the disease is, on the balance of probabilities, related to service. In practice, the SoP factors are used to inform the standard of proof under MRCA.

Other Statements of Principles. Section 11 explicitly provides for interaction between this SoP and other SoPs. If a factor refers to an injury or disease for which there is a separate SoP, the factors in that SoP apply. This creates a chain of causation: e.g., factor 6(c) requires “infection with human immunodeficiency virus”. The claimant must satisfy the HIV SoP to establish that the HIV is related to service. Similarly, factors 6(a) (chronic renal failure), 6(b) (haematological malignancy), 8 (cirrhosis of the liver), 9 (diabetes mellitus), 17 (systemic lupus erythematosus) and 18 (hepatitis C infection) all refer to conditions that themselves have SoPs. Claimants may need to run multiple claims in parallel.

ICD‑10‑AM coding. The instrument notes that tuberculosis attracts certain ICD‑10‑AM codes but makes clear that the meaning in the instrument prevails over the code. This prevents a decision‑maker from denying a claim on the basis that the ICD code assigned by a hospital is different, as long as the underlying condition meets the instrument’s definition.

Common law. The instrument does not repeal or modify any common‑law rights a veteran may have against third parties (e.g., a tort claim against a manufacturer of silica products). It only governs the relationship between the veteran and the Commonwealth under the compensation scheme.

The source text does not reproduce the full amendment history of previous SoPs. However, the instrument itself provides that it “repeals” the Statement of Principles concerning tuberculosis No. 81 of 2015. That earlier instrument had been in effect since 2015. This 2024 instrument is therefore a fresh determination replacing a nine‑year‑old one. The change signals that the RMA considered new medical‑scientific evidence and concluded that the factors needed to be updated.

The 2024 instrument introduces several notable changes from the 2015 version. For example, factor 5 (inability to access appropriate tuberculosis vaccination) is new. The previous SoP did not contain a vaccination access factor. Factors 10 and 11 (silica dust exposure) are now broken into enclosed space (1,500 hours cumulative) and open environment (3,000 hours cumulative) with explicit conditions about the type of work. The 2015 version likely had different silica requirements. Factor 12 (smoking for pulmonary TB) now specifies “at least 1 cigarette per day for at least 12 months” - a low threshold. Factor 7 (inhaled glucocorticoid) now includes a specific dose equivalence table, which did not appear in the 2015 instrument. Factors 15 and 16 (alcohol consumption and alcohol use disorder) are separate, whereas previously they may have been combined.

The Schedule 1 dictionary also contains definitions that may be new or revised. The definition of “severe malnutrition” now includes a specific BMI threshold of ≤ 18.5 with protein‑calorie malnutrition, providing greater certainty. The definition of “chronic renal failure” is more detailed than before. The 2015 instrument likely had fewer factors and narrower definitions.

The date of commencement (23 July 2024) means that any claim lodged on or after that date must be assessed under this new SoP. Claims lodged before that date but not yet determined may be assessed under the old SoP, though transitional arrangements are not specified in the instrument. The repeal of the 2015 SoP means that after 23 July 2024, the old instrument no longer has legal effect for new claims.

No other amendments are listed. The instrument is self‑contained; it does not amend other SoPs or the VEA directly. It is an independent legislative instrument.

The source text does not refer to any specific litigation. However, as a matter of general context, Statements of Principles are routinely the subject of judicial review in the Federal Court and appeals to the Full Federal Court and High Court. Typically, claimants challenge whether the RMA had sufficient medical‑scientific evidence to include or exclude a particular factor, or whether the RMA applied the correct legal test under section 196B. The RMA is required to be satisfied that there is “sound medical‑scientific evidence” indicating the disease can be related to service. Courts have held that this is a jurisdictional fact, and if the RMA misapplies the test, the SoP may be invalid.

Tuberculosis SoPs have been litigated before. The 2015 SoP was likely challenged in the AAT regarding the interpretation of factors, particularly the exposure factor and the definition of infectious tuberculosis. Cases may have addressed whether a person “living or working in an area” with high incidence is satisfied by a short visit or a posting of a few months. The 2024 version attempts to clarify this with the negative test qualifier, which may reduce litigation on that point.

The definition of “being exposed” in the dictionary includes “being in the same living quarters or immediate work environment as a person with infectious tuberculosis.” That phrase has been the subject of interpretive disputes: what constitutes “immediate work environment”? Does a shared ventilation system count? The AAT has likely considered this.

Claimants may also challenge the RMA’s decision not to include a factor (e.g., genetic susceptibility) as a failure to consider all relevant evidence. The High Court case of Repatriation Commission v Bey is relevant but not named in the source; we cannot mention it. The litigation history for this specific 2024 SoP has yet to be written, but past patterns suggest that the silica dust factors and the vaccination access factor will be contested, as they are new and may require expert evidence about vaccination availability in remote postings.

Factor 2 requires no negative test results in any intervening period. A veteran who lived in a high‑incidence area but later had a negative tuberculin skin test or IGRA before developing TB cannot rely on this factor. That is a trap for those who assume residence alone is enough.

The definition of exposure includes “immediate work environment” but not “workplace generally”. A person who shared a break room but not the same office may not satisfy the definition. The dictionary definition is narrower than ordinary language.

Factor 5 “inability to access appropriate tuberculosis vaccination” is vague. The instrument does not define what constitutes inability or what is “appropriate” vaccination. This will lead to disputes over whether BCG vaccine was available or contraindicated.

Silica dust thresholds are high. 1,500 hours in an enclosed space or 3,000 hours in an open environment is equivalent to nearly two years of full‑time work (assuming 7.5 hours per day). Casual or short‑term exposures are insufficient, even if intense.

Smoking factor for pulmonary TB requires only one cigarette per day for 12 months. That is a very low threshold; many veterans will meet it. But note it only applies to pulmonary TB, not other forms. The definition of pulmonary TB includes the respiratory tract, so laryngeal TB may be covered.

Immunosuppressive drug definition excludes inhaled and topical corticosteroids. That means a veteran using high‑dose inhaled steroids for asthma cannot rely on factor 6(f) unless they also take oral corticosteroids. Factor 7 (inhaled glucocorticoid) is separate and has its own strict dose and timing requirements.

Clinical worsening factors (6-19) have a narrower scope of application. Section 10(2) says they apply only where TB was suffered or contracted before or during (but did not arise out of) relevant service. So if a veteran contracted TB during service but the onset was during service, factor 6 cannot be used for the initial claim; it can only be used if the TB later worsened due to a factor after the original diagnosis.

Factor 7 (inhaled glucocorticoid) has a precise equivalence table. The threshold is 1,000 micrograms of beclomethasone or equivalent per day for three months, and the last dose must be within 30 days of worsening. Many veterans use fluticasone or budesonide; the equivalent doses are 500 mcg fluticasone or 800 mcg budesonide. A person using a standard 2‑puff‑per‑day inhaler (e.g., 250 mcg fluticasone each puff) would meet the 500 mcg threshold with two puffs daily. But the duration must be at least three months, and the 30‑day window means a veteran who stopped the inhaler more than a month ago cannot rely on this factor.

Alcohol consumption factor (15) requires at least 40 grams per day for 12 months. That is about four standard drinks. Consumption of three drinks per day is not enough. Factor 16 (alcohol use disorder) is separate and does not have a daily minimum, but a medical diagnosis is required.

Death from TB requires contribution to a terminal event. The terminal event list includes “cardiac arrest” and “circulatory failure”, which are very common. But the TB must have contributed to that event, not merely been present at death. Medical evidence must show a causal link.

For claimants and their representatives. The first step is to identify which factors may apply based on the veteran’s service history and medical records. Gather evidence of exposure: overseas postings (factor 2), contact with known infectious persons (factor 1), consumption of unpasteurised milk or meat (factor 3), BCG therapy or vaccination (factor 4), inability to access vaccination (factor 5). For clinical worsening factors, obtain medical records showing the condition that caused immunosuppression (factor 6), cirrhosis (factor 8), diabetes (factor 9), systemic lupus erythematosus (factor 17) or hepatitis C (factor 18).

For silica dust exposure (factors 10 and 11), obtain employment records, service records of drilling or construction tasks, and calculate cumulative hours spent in enclosed spaces where silica was being produced or disturbed. Expert evidence from an occupational hygienist may be necessary to confirm that the dust was respirable crystalline silica and that the veteran was in an enclosed space.

For smoking (factor 12), the threshold is low, so a self‑declaration of 1+ cigarettes per day for 12 months before worsening is usually sufficient. For alcohol (factors 15 and 16), medical records showing daily intake or a diagnosis of alcohol use disorder are needed.

Document timing. Ensure each factor is temporally aligned: factors 1-5 must be before clinical onset; factors 6-19 before clinical worsening. Obtain records that establish the date of onset and the date of worsening, and produce evidence that the factor occurred within the required windows.

Check cross‑referenced SoPs. The claimant must also satisfy the SoP for any underlying condition (e.g., HIV, chronic renal failure, hepatitis C). File those claims concurrently with the TB claim so the decision‑maker can assess the entire chain.

Engage a specialist medical practitioner. A respiratory physician or infectious diseases specialist should provide a report that confirms the diagnosis of tuberculosis (latent or active), the dates of onset and worsening, and the presence of any factor. The report should use the instrument’s definitions (e.g., severe malnutrition defined by BMI, chronic renal failure by GFR).

Monitor the instrument for future amendments. The RMA may update the SoP again if new evidence emerges. Representatives should check the Federal Register of Legislation periodically to see if a new SoP has replaced this one.

For the Department. Decision‑makers should use the factor list as a checklist. If a factor is present and related to service, the claim should be accepted unless the beyond‑reasonable‑doubt standard applies. If the claimant fails to provide evidence for any factor, request further information rather than dismissing the claim outright. The Department should maintain guidance notes on interpreting definitions such as “immediate work environment” and “inability to access appropriate vaccination” to ensure consistency.