Case: Price v Repatriation Commission [2003] FCA 339 ; (2003) 127 FCR 274
Outcome: considered
it happens, a case came into this Court in respect of eligibility for a compensation payment under the Internment Act, also by way of an appeal against a payment ineligibility decision of the Tribunal: Price v Repatriation Commission [2003] FCA 339 ; (2003) 127 FCR 274. The veteran's widow had made application under the Internment Act for a compensation payment. Though they concerned an event in the immediate aftermath of the surrender at Singapore by Lieutenant General Percival on 15 February 1942 of all members of Malaya Command, including the Australian 8 th Division, the critical facts of that case were similar in substance to the present. In contrast to the present, there was no direct evidence from the veteran as to the circumstances of his escape, only the imperfect recollection of his wife and relatives, the objective fact that he had reached Australia on a Dutch ship on 6 or 7 March 1942 and some research evidence and also opinion evidence (which the Tribunal accepted) from an historian as to the likelihood of a number of competing escape scenarios presented in the secondary evidence. On the facts found by the Tribunal, the applicant's husband had, before Japanese forces had physically taken him into custody, escaped from Singapore Harbour in a small vessel. In company with other soldiers, he succeeded in reaching Sumatra and was then evacuated from there to Australia on the Dutch ship. There was other, fragmentary evidence, not accepted by the Tribunal, that the veteran had either passed into Japanese captivity in Changi prison or escaped from a work party guarded by the Japanese near there not long after the surrendered troops had been marched to Changi on the morning of 17 February 1942. Before the Tribunal in Price the applicant had advanced a like submission as to the meaning of "interned" to that made on behalf of Mr Collett in the present case. In this Court in Price , the principal controversy was whether the Tribunal had misconceived and misapplied the benign evidentiary regime found in s 119(1)(h) of the Veterans' Entitlements Act 1986 (Cth) (VEA) with respect to the taking into account of the effects of the passage of time and absences or deficiencies in official records. The argument concerning the meaning of "interned" was not abandoned, although it does not appear from the report of the appeal that it was pressed with the same rigour as it was in the present case. Particularly in light of his conclusion that the Tribunal's findings of fact were not vitiated by an error in relation to s 119(1)(h) of the VEA, the judge who heard the appeal, Conti J, did not find it necessary to consider the alternative argument at length, although it would seem from the following passage, Price [2003] FCA 339 ; (2003) 127 FCR 274 at 288-289, [30] [32], that his Honour did not find it persuasive: It was next submitted by counsel for Mrs Price that in any event, the AAT misconstrued the statutory notion of "interned". I was referred to the Terms of the Singapore Surrender, which contained the following: "1. The British Army shall effect complete cessation of hostilities not later than 10 pm on February 15 (Nippon Time). British troops shall disarm themselves in their present positions no later than 11 pm." I was then referred to the following finding of the AAT: "The Tribunal notes that the march to Changi followed on 17 February 1942 and if so, if this order constituted being `confined to a place' in accordance with the definition of `interned' in section 3 of the Act, it does so, in relation to (Mr Price), at most until the afternoon of 17 February 1942..." Those observations were said to implicitly recognise that being in Singapore and subject to the Terms of Surrender brought the Veteran in any event within the statutory definition of "interned". That was because he became "confined to a place" by virtue of the above cited order to disarm (the s 3 definition of "interned", relevantly, is "confined in a... place"). Accordingly, it was submitted that the AAT's finding ... was incorrect. Underpinning the finding was of course the factual conclusion of the AAT that the Veteran never became a prisoner of war of the Japanese army in Singapore but escaped following the surrender and before capture. Accordingly, the reference in the Second Reading Speech to "Australians who were held captive by Japan during World War II" did not accommodate the circumstances of the Veteran of escape following the surrender and before capture", as found by the AAT. It is true that the AAT also cited that aspect of the Second Reading Speech in so far as it referred to "horrific conditions", "starvation", "brutal treatment" and "slave labour", but I do not think that the AAT thereby stipulated that suffering to any such extents were necessary elements in the preceding critical words "held captive". It cannot sensibly be the case that "the essential character" of the Veteran's time spent in Singapore, to adopt the expression used by Hill J in Kohn, was that of "held captive", given the implications of Mr O'Keefe's evidence as accepted by the AAT to the effect that he was not captured by the Japanese in any physical sense. For what it may matter, given the correctness of the AAT's factual finding to that effect in reliance upon [the historian's] expert testimony ..., it became perhaps unnecessary for the AAT to have undertaken recourse to s 15AB of the Interpretation Act for the purpose of confirming its factual finding that s ince the Veteran was never taken prisoner by the Japanese army, he was never "confined in a... place" within the statutory definition of "interned". That observation however is, strictly speaking, academic. [Emphasis added] This passage of his Honour's judgement must be read in the context of a particular passage in the Tribunal's reasons which (at 285, [23]) his Honour had earlier extracted in his judgement: The AAT concluded that "the essential character of the Veteran's time in Singapore after its fall is not one of being confined or restricted or held captive" for the purposes of the Internment Act, the expression "held captive" being (as just indicated) also used in the Second Reading Speech. The AAT accepted the fact of danger and suffering involved in the Veteran's escape from Singapore, but found that the s 3 definition of "interned" in the Internment Act did not extend to those who escaped back from Singapore to Australia, however bravely, and were not thus left behind in a prisoner of war camp such as Changi. The critical facts of the two cases are similar in substance in this sense. In each instance, the veteran concerned was a subordinate in a force surrendered to the enemy by a superior officer. Again in each instance and on the facts as respectively found, the veteran was in a designated surrender area as a consequence of a surrender to an enemy at the time when he escaped but had neither yet passed into a prisoner of war camp nor yet been held under guard by a member of the enemy forces. The words "held captive", much less "taken prisoner" or became a "prisoner of war", do not appear in the definition of "interned" as found in the Internment Act and the 2007 Budget Measures Act. Nor in either Act do they appear in the compensation eligibility provision itself. Within the expression, "interned by the military forces of an enemy State" in item 2(1)(b) of Sch 5 to the 2007 Budget Measures Act, the word "by", as each party submitted, plays a causative role. In resolving questions of causation, an understanding of how, after a surrender, the orders of an enemy force commander may permissibly be relayed to soldiers in the surrendered force may in some cases, and the present is one, be of assistance. That understanding is not, with respect, evident in the Tribunal's reasons. That said, it is otherwise apt to distract from the language chosen by Parliament to inquire as to whether the veteran was "held captive", "taken prisoner" or became a "prisoner of war". To dismiss the present appeal would certainly be consistent with the actual decision in Price but, with respect, the words emphasised in the passage quoted from the judgement in that case, which admittedly were obiter and responsive to an approach evident in the Tribunal's reasons in that case, seem to me impermissibly to direct an additional subject for compensation eligibility inquiry. I prefer therefore to approach the subject of eligibility afresh. Solely for the assistance it gives in relation to whether the enemy had a causative role to play on the facts as found, I turn to consider Mr Collett's status on and from the time of surrender. Mr Collett had, in my opinion, the status of a prisoner of war from the moment his unit was surrendered to the enemy by his superior officers. That is so even though he was not at that moment or when he left the surrender area under armed German guard. The position prevailing at the time under the Laws of War was explained authoritatively and at length by Dr T P Fry ED, barrister-at-law, in an article, "Legal Aspects of the Departure of Major General Gordon Bennett from Singapore" (1948-1951) 1 UQLJ 34. Dr Fry, who died too young aged 48 in 1952, had served in the Australian Army Legal Corps in the Middle East and Australia, attaining the rank of Lieutenant Colonel. He was a foundation lecturer at the T C Beirne School of Law at the University of Queensland. Before taking up that appointment he had obtained legal qualifications at Oxford, The Academy of International Law at The Hague and finally at Harvard. At the latter university, he was noted as 'exceedingly industrious and able', and was there awarded a doctorate of juridical science (1931): Ian Carnell, 'Fry, Thomas Penberthy (1904 - 1952)', Australian Dictionary of Biography , Volume 14, Melbourne University Press, 1996, p. 231; online reference: http://www.adb.online.anu.edu.au/biogs/A140259b.htm?hilite=fry . Section 15AB of the Acts Interpretation Act 1901 (Cth) permits recourse to secondary materials to confirm the meaning of an Act as well as to resolve any ambiguity. Regard to some parts of the explanation in the explanatory memorandum circulated in respect of what became the 2007 Budget Measures Act are apt to distract in a similar way as did the explanatory memorandum for the Internment Act in Price . Under the introductory heading "Outline" it is materially stated in the 2007 Budget Measures Bill explanatory memorandum that, "The third measure provides a one-off compensation payment to certain veteran and civilian prisoners of war interned in Europe during World War Two or their surviving widows or widowers" (Emphasis added). Much lies behind that adjective "certain", for not every person having the status of prisoner of war is made eligible for the one-off compensation payment. Later, at page 16 of the explanatory memorandum, the following appears: Summary This Schedule gives effect to the 2007 Budget measure that will provide for a once-only compensation payment to veteran and civilian prisoners of war interned by enemy forces in Europe during World War Two, or their surviving widows or widowers. Background The Government has previously made once-only compensation payments to persons interned by the Japanese and the North Koreans. Prisoners of war of enemy forces in Europe also experienced extreme brutality and starvation and also suffered from some of the same diseases that affected prisoners of war of the Japanese. The repeated, unqualified references to "prisoners of war" will be noted. Only in the heading of this part of the explanatory memorandum does "certain" appear and there it is used to qualify "internment", not "prisoner". I do not gain any assistance from the explanatory memorandum. With respect, the Tribunal seems at times to have used "confined" in a rather loose way in describing (at para 16) Mr Collett's position in the two hours in which he was located in the surrender area. On one reading of that paragraph, and this was the reading advanced on behalf of Mr Collett, the Tribunal has concluded that Mr Collett was, in terms of the definition, "confined in" the surrender area. Insofar as the Commission disputed this reading of the paragraph, I reject that submission. What the Tribunal has done is to conclude that, though "confined in" that area, he was not confined "by" the enemy. The Tribunal's statement, "The absence of such confinement is demonstrated by his capacity to retain possession of his rifle and ammunition for some two hours and then to leave the area and go to the beach." is not, as the Commission submitted, indicative of a conclusion that Mr Collett was not "confined". Rather, having regard to the sentence which preceded it, it is a conclusion that that the "confinement" was not "by" the enemy. This demonstrates a misconception by the Tribunal not just of the meaning of "confined in ... other place" but also, as earlier noted, as to how an enemy may convey orders to a surrendered foe. The order relayed to Mr Collett to go to the surrender area was one given "by" the enemy but he was not "interned" there. The correct conclusion in law on the facts found was that the surrender area was not an "other place". The Commission succinctly explained why in its written submission: In this case, the other place where [Mr Collett] spent 2 hours, before heading to the beach to the dinghy was the "shore of mainland Greece"(Transcript page 30, lines 30 to 31), a place which does not, without more (for example, evidence of some kind of physical barrier) fit within the genus of the specific places mentioned [in paragraph (a) of the definition]. On those facts, too, the physical presence of the enemy did not supply the restriction on freedom of movement that the "other place" itself otherwise did not. As is not unknown in the pursuit phase of war, having taken its surrender the advance elements of the German forces were bypassing this surrendered unit. As the subsequent formal recording of the unit's surrendering officers as prisoners of war necessarily inferentially confirms, physical restriction by follow up forces occurred later. Under then prevailing Australian military law, a soldier in Mr Collett's circumstances was under a duty, if reasonably possible, to escape and to rejoin his unit. At the time, the scheme of the Defence Act 1903 (Cth), as found in the former s 55, was that, while on active service, members of the Australian Army were subject to the Army Act 1881 (UK) (Army Act 1881) insofar as that Act was not inconsistent with the Defence Act or not modified or adapted by subordinate legislation. At the time, the duty was found in s 5 of the Army Act 1881 as so applied. The application of that Act to the Australian Army has long ceased but the duty remains: see now s 19 Defence Force Discipline Act 1982 (Cth). The Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949 , made part of our domestic law by the Geneva Conventions Act 1957 (Cth), is predicated upon the continued existence of such a duty. The conventional wisdom, to which Dr Fry alludes in his article, is that the best time for a prisoner of war to escape is often soon after attaining that status. It is often then that the "fog of war" is most dense. Mr Collett's experience highlights just that. In escaping and rejoining his unit he conspicuously and commendably did his duty. That does not mean that, immediately beforehand, he met what decades later became the eligibility criteria for a compensation payment under the 2007 Budget Measures Act. The actual decision of the Tribunal was the only one open in law on the facts which it found. Albeit for reasons which differ in detail from those given by the Tribunal, the appeal must be dismissed. There will be no order as to costs. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 19 June 2009 Counsel for the Applicant: Mr A Harding Solicitor for the Applicant: Terrence O'Connor Solicitor Counsel for the Respondent: Ms H Bowskill Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 12 June 2009 Date of Judgment: 19 June 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/667.html