Chan and Repatriation Commission - [2002] AATA 742

DECISION AND REASONS FOR DECISION [2002] AATA 742

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/1685

VETERANS' APPEALS DIVISION       )
           Re      PATRICK CHAN
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal The Hon R N J Purvis Q.C., Deputy President

Date30 August 2002
PlaceSydney

Decision The decision under review is affirmed.

[sgd] R N J Purvis Deputy President
CATCHWORDS
VETERANS' AFFAIRS – claim as civilian interned in New Guinea by Japanese during WWII – whether domiciled or not in Australia at relevant time – administration of New Guinea after WWI by Australia according to League of Nations Mandate – whether applicant domiciled within territory having Commonwealth jurisdiction – no issue as to applicant being domiciled in New Guinea – Acts Interpretation Act – whether contrary legislative intent – whether New Guinea part of law area of Australia – New Guinea not relevantly a part of the Commonwealth of Australia – applicant not domiciled in Australia
Compensation (Japanese Internment) Act 2001 – s4(2)(a),(b),(c)
Acts Interpretation Act 1901 – s 17(a)
New Guinea Act 1920 – ss 4, 13
League of Nations Covenant – Article 22
Papua and New Guinea Act 1949
Domicile Act 1982
Domicile (Consequential Amendments) Act 1982
Fugitive Offenders Act 1881
Lloyd v Lloyd [1962] VR 70
Lee v Commissioner of Taxation (1963) 6 FLR 285
John Pfeiifer Pty Ltd v Rogerson (2000) 203 CLR 503
Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319
Wong Man On v The Commonwealth and Others (1952) 86 CLR 125

REASONS FOR DECISION

The Hon R N J Purvis Q.C., Deputy President

the application

This is an application by Mr Patrick Chan ("the Applicant") seeking review of a decision made by a delegate of Repatriation Commission ("the Respondent") on 5 October 2001. By such decision the Respondent refused a claim made by the Applicant pursuant to the Compensation(Japanese Internment)Act 2001 ("the Act").
On the 2 August 2001 the Applicant made a claim under the Act seeking payment of $25,000 and contending that he was a civilian who had been interned by the Japanese for a period between 7 December 1941 and 29 October 1945 and who was immediately before that internment domiciled in Australia.
There was and is no issue as to the prerequisites for entitlement of the Applicant under the Act other than that it is maintained by the Respondent that the Applicant was not at the relevant time and within the meaning of the Act domiciled in Australia. This is the issue now for determination in this application.
the hearing
At the hearing of the application the Applicant was represented by Mr Craig Colborne and the Respondent by Mr Stephen Lloyd both of Counsel.
There was admitted into evidence the documents lodged by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.
Otherwise the matter proceeded to a hearing by way of written and oral submissions.
the statutory provisions
The Act so far as here relevant provides:
"4 Eligibility for compensation payment
…
Civilian (in own right)
(2) A person is eligible for a compensation payment in the person's own right as a civilian if the following conditions are satisfied:
(a) the person was alive at the beginning of 1 January 2001;
(b) the person was interned by Japanese military forces at any time during the designated war period;
(c) the person was domiciled in Australia immediately before the commencement of that internment.
…"
The Acts Interpretation Act 1901 provides:
"17 Constitutional and official definition
In any Act, unless the contrary intention appears -
(a) Australia or the Commonwealth means the Commonwealth of Australia and, when used in a geographic sense, includes the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands, but does not include any other external territory;
…"

relevant facts

The Applicant was born in Rabaul, New Guinea on 29 April 1930 and was interned by the Japanese in September 1943. His parents had both been born in China, but had lived for some years in Rabaul, prior to the family travelling to Hong Kong in 1938 where the Applicant's father received medical attention. Following the death of his father in 1939 the Applicant, his mother, and other members of his family returned to Rabaul, where they resided until the internment.
Rabaul is on the island of New Britain and had been the location of the former administrative headquarters of German New Guinea. New Guinea was a German possession until the end of World War I when it became a Mandated Territory of Australia under the League of Nations Settlement as evidenced by the New GuineaAct 1920. Article 22 of the relevant 1920 League of Nations Covenant provided:
"To those colonies and territories which as a consequence of the late war have ceased to be under the sovereignty of the States which formerly governed them and which are inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world, there should be applied the principle that the well-being and development of such peoples form a sacred trust of civilisation and that securities for the performance of this trust should be embodied in this Covenant.
The best method of giving practical effect of this principle is that the tutelage of such peoples should be entrusted to advanced nations who by reason of their resources, their experience or their geographical position can best undertake this responsibility, and who are willing to accept it, and that this tutelage should be exercised by them as Mandatories on behalf of the League.
The character of the Mandate must differ according to the stage of the development of the people, the geographical situation of the territory, its economic conditions and other similar circumstances.
…
There are territories, such as South-West Africa and certain of the South Pacific Islands, which, owing to the sparseness of their population, or their small size, or their remoteness from the centres of civilisation, or their geographical contiguity to the territory of the Mandatory, and other circumstances, can be best administered under the laws of the Mandatory as integral portions of its territory, subject to the safeguards above mentioned in the interests of the indigenous population.
In every case of mandate, the Mandatory shall render to the Council an annual report in reference to the territory committed to its charge.
…"
By the New Guinea Act Australia accepted the League of Nations Mandate to administer the "Territory of New Guinea". The preamble to the New Guinea Act 1920 provided:
"Whereas on the seventeenth day of September 1914, the Territories and Islands hereinafter mentioned (then being possessions of the German Empire) where conquered by and surrendered to the Naval and Military Forces of the Commonwealth;
And whereas by the Treaty of Peace with Germany signed at Versailles on 28 June 1919, Germany renounced in favour of the Principal Allied and Associated Powers all her rights and titles over the said Territories and Islands;
And whereas the said Territories and Islands are now occupied by the Commonwealth;
And whereas it has been agreed by the representatives of the Principal Allied and Associated Powers that a Mandate for the Government of the said Territories and Islands should be conferred on the Commonwealth of Australia;
And whereas under the Covenant of the League of Nations contained in the said Treaty a Mandate is to be issued to the Commonwealth of Australia for the Government of the Territories and Islands formerly constituting German New Guinea…, with full power to administer the same, subject to the terms of the Mandate, as an integral part of the Territory of the Commonwealth;
And whereas it is expedient to make provision for the acceptance of the Mandate so to be issued;
And whereas it is also expedient to make immediate provision for the Civil Government of the said Territories and Islands;
Be it therefore enacted by the King's Most Excellent Majesty, the Senate, and the House of representatives of the Commonwealth of Australia, as follows;
…"
Section 4 of the New Guinea Act 1920 provided:
"The Territories and Islands formerly constituting German New Guinea, as specified in the Preamble to the Act, are hereby declared to be a Territory under the authority of the Commonwealth by the name of the Territory of New Guinea."
As noted in Oppenheim, 1948 "International Law A Treatise", at page 193, 194 and 201:
"… the mandatory was precluded by the terms of the mandate from doing a number of things which an owner of territory can lawfully do…
by the terms of the mandates [the mandatories] agreed to exercise their mandates on behalf of the League, and the mandates, at any rate, contained no cession of the territory to the mandatory.
the dominant element was that of trusteeship for the inhabitants of the mandated area, "peoples not yet able to stand by themselves under the strenuous conditions of the modern world."
In April 1923 the Council of the League adopted certain resolutions with regard to the national status of the inhabitants of "B" and "C" [the territory of New Guinea] mandated areas, the substance of which was that they had a distinct status from that of the mandatory's nationals and, while not disabled from obtaining individual naturalisation from the mandatory, did not automatically become invested with its nationality."
After World War II Australia administered New Guinea under the terms of a Trusteeship Agreement approved by the United Nations Assembly and as evidenced by the Papua and New Guinea Act 1949.
the contentions and decision
It is maintained on behalf of the Applicant that New Guinea was governed by the Commonwealth and was part of the law area of the Commonwealth at the time the Japanese interned the Applicant. It was, it is said, being "administered as an integral portion of the Territory of the Commonwealth" and the Applicant was domiciled within the territorial limits to which the jurisdiction of the Commonwealth extended at the time. He was "domiciled in Australia" and, it is said, entitled to compensation in accordance with the Act.
Consistent with this contention is a rejection of "Australia" in the words "domiciled in Australia" appearing in section 4(2) of the Act, as being given the meaning ascribed to that word in the Acts Interpretation Act, this on the basis that a contrary intention appears in the Act. The use of the word "domicile" in the Act is sufficient, it was said, to constitute a separate or contrary intention. If the Legislature had wanted the Interpretation Act to apply it would not have use the word "domicile". It has thus shown an express contrary intention.
It is said that this is so because:
(a)if the word "Australia" is given the Interpretation Act construction, compensation would not be available to those domiciled at the time of internment not only in the territory of New Guinea but also Papua or Norfolk Island. This is an unlikely legislative intent.
(b)by making eligibility depend on an Australian domicile, the Act has adopted its own test for the meaning to be given to the word "Australia". Thus "domiciled in Australia" refers to being domiciled in a geographic area possessing a common government and unity of law, the law of Australia.
It is submitted that there can be an Australian or Commonwealth domicile; (Lloyd v Lloyd [1962] VR 70 at 71; Lee v Commissioner of Taxation (1963) 6 FLR 285 at 290) that is an Australian, Commonwealth, Federal domicile for Australian, Commonwealth, Federal purposes or law areas (John Pfeiifer Pty Ltd v Rogerson (2000) 203 CLR 503). Thus for the purposes of Federal law, a person is, in the absence of a statutory restriction or modification, domiciled in Australia or the Commonwealth if he or she is domiciled in the geographical area comprised by the States and Territories of Australia or the Commonwealth.
So far as this argument is relevant, it may be thought to be somewhat circuitous, for the issue in this matter, in the absence of assistance from the Acts Interpretation Act, is as to whether New Guinea was in the geographical area that was the law area of Australia at the relevant time.
On behalf of the Respondent it is maintained that the reference in the Act to "Australia" whether it be to Australia in a contemporary setting or as it existed in 1943, New Guinea was not such as to include therein.
The Act by its long title provides for "compensation payments in respect of certain persons interned by Japanese Military Forces". The persons there mentioned are referred to both in the Explanatory Memorandum accompanying the Act and the Minister's Second Reading Speech and variously described as "an Australian civilian", "Australian civilians", "Australian", "Australian men and women", " Australian POW" and "Australian…civilian, detainees and internees".
There is no issue in this matter as to the question of domicile being determined at a time before the commencement of the Domicile Act 1982 and the Domicile (Consequential Amendments) Act 1982, without regard to the latter mentioned legislation and thus in accord with the common law. There is no issue as to the Applicant being domiciled at the relevant time in New Guinea.
The Respondent looks to the contemporary meaning of "Australia" as not including New Guinea by reason of the application of the "ordinary rule of construction". The relevant rule referable to statutory interpretation "is to read it in a sense which would have been applied when it was drawn up" (Corporate AffairsCommission (NSW) v Yuill (1991) 172 CLR 319 at 323), thus giving "Australia" its contemporary meaning.
Alternatively, and applying the provisions of section 17 of the Acts Interpretation Act 1901, "Australia" when used in a geographical sense means the Commonwealth, not including any external territory other than Christmas Island and the Territory of Cocos (Keeling) Islands.
However, if a contrary intention appears it would entail identifying the "domicile in Australia" as in Australia as it was at a point in time before the internment in lieu of being domiciled in Australia as it is defined in the Interpretation Act. If a meaning other than the latter had been intended, the Act could have said so. Again the emphasis in the Act is on the expression "was domiciled", this placed at the point of time before internment, there not being a limitation or qualification on the ambit of "Australia."
It is apparent from the wording used in the Explanatory Memorandum and in the Second Reading Speech, that it is to civilian Australians living as at 1 January 2001 that the legislation is directed, at compensation going to persons who are currently Australians, and who were domiciled in the Commonwealth of Australia as defined in the Acts Interpretation Act. There are locations such as Christmas Island, where those domiciled there in 1943 (the island not becoming a territory until 1958) would otherwise be excluded. Conversely living citizens of Papua New Guinea, not being living Australians, could be included. Those domiciled in New Guinea in the relevant period who were interned and are still there living would be entitled to compensation. This is clearly not the legislative intent. It is to Australians now who were domiciled then, in Australia, as defined in the Interpretation Act that the benefit is to accrue.
It is desirable to also consider the arguments raised in the event of a contrary intention being open for discussion.
The preamble to the New Guinea Act 1920 provided as herein before set forth:
Section 13 of the New Guinea Act states:
"Except as provided in this or any Act, the Acts of the Parliament of the Commonwealth shall not be in force in the Territory unless expressed to extend there to or unless applied to the Territory by ordinance made by the Governor General under the Act."
New Guinea, it was submitted on behalf of the Respondent, was not treated by the Commonwealth as part of the law area of Australia. In a general sense, it had its own laws made under Ordinance, not the laws applying within Australia. The New Guinea Act provided for the giving of guarantees by the Commonwealth to the League of Nations, as noted in the preamble, and for the reporting on measures taken to carry out the guarantees. The latter did not apply throughout Australia. The nature or quality of the power conferred on the Commonwealth was a power given subject to the Mandate.
In this regard it is worth noting the consideration given by the High Court to the status of New Guinea in Wong Man On v The Commonwealthand Others (1952) 86 CLR 125 at 134:
"The novel character of the mandatory system inevitably gave rise to many problems and much discussion among international jurists, but one point on which there seems to have been unanimity - or something nearly approaching unanimity - is that a Territory the subject of a "C" mandate does not become part of the dominions of the mandatory in such a sense as to confer on the inhabitants the nationality of the mandatory. This is certainly the view which one would be disposed to take prima facie and without authority. In Ffrost v Stevenson, (1937) 58 CLR 552 Latham CJ said: -
"The Treaty of Peace, read as a whole avoids cession of territory to the mandatary, and in the absence of definite evidence to the contrary, it must, I think, be taken that New Guinea has not become part of the dominions of the Crown."
It was decided by all the justices in Ffrost v Stevenson that the Mandated Territory of New Guinea was a place out of His Majesty's dominions in which His Majesty has jurisdiction. …But all of their Honours reached the same conclusion on the only point that is important for the purposes of the present case. It is true that the decision in Ffrost v Stevenson related to the Fugitive Offenders Act 1881 (Imp.), whereas the statute which I have to consider is the Nationality Act 1920 (Cth.). But it seems to me to be quite impossible for me to hold, consistently with Ffrost v Stevenson, that the Mandated Territory of New Guinea became a part of His Majesty's dominions for the purpose of deciding a question of nationality. …"

The Tribunal is satisfied and so finds that a similar conclusion must be reached by it with reference to the current issue before it.
This decision so reached by the Tribunal is consistent with the view expressed in Halsbury's Laws Of England 2nd edition, volume XI where it is stated at p 7 that:
"Mandated territories are those territories which are administered by the British Government, or a Dominion government, under the terms approved by the Council of the League of Nations, having been transferred to the British Crown under the terms of peace with Germany and Turkey in 1919 and 1923. The mandated territories of New Guinea is such a territory."
The Tribunal is of the opinion that New Guinea did not become a part of the Commonwealth of Australia in any relevant sense.
For the reasons hereinbefore set forth the decision under review is affirmed.

I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis Q.C., Deputy President
Signed: A Stephens .....................................................................................
  Associate
Date/s of Hearing  12 August 2002
Date of Decision  30 August 2002
Counsel for the Applicant        Craig Colborne
Counsel for the Respondent    Stephen Lloyd