Collett and Repatriation Commission
[2008] AATA 882
•3 October 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 882
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/4645
VETERANS' APPEALS DIVISION ) Re FREDERICK COLLETT Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr R G Kenny, Member Date3 October 2008
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ................[Sgd].......................
Member
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – one-off compensation payment of $25,000 – veteran eligible if interned by the military forces of an enemy state at any time during a designated war period – veteran’s unit surrendered to German forces in Greece in 1941 – veteran had no contact with or supervision by German forces - veteran escaped by boat to Crete – veteran not subject to internment by German military forces - decision under review affirmed.
Social Security and Veterans’ Affairs Legislation Amendment (One-off Payments and Other 2007 Budget Measures) Act 2007 Schedule 5
Acts Interpretation Act 1901 ss15AA, 15AB
Veterans’ Entitlements Act 1986 s119Price v Repatriation Commission [2003] FCA 339
REASONS FOR DECISION
3 October 2008 Mr R G Kenny, Member BACKGROUND
1. Mr Frederick Collett served in the Australian Army during World War 2 in Europe and in the Pacific region. On 21 September 2007, he lodged a claim with the Repatriation Commission (“the respondent”) for a compensation payment under Schedule 5 of the Social Security and Veterans’ Affairs Legislation Amendment (One-off Payments and Other 2007 Budget Measures) Act 2007 (“the Act”). This was based on his claim that he had been interned by German forces in Greece in 1941. On 28 August 2007, the respondent rejected his claim and that decision was affirmed on 23 April 2008.
ISSUES AND SERVICE
2. Schedule 5 of the Act (“the Schedule”) makes provision for compensation to be paid in respect of certain World War 2 internments. Item 3 of the Schedule provides that the compensation is a one-off payment of $25,000. Item 2 of the Schedule provides that a veteran who was alive on 1 January 2007 is eligible for the compensation payment if he “was interned by the military forces of an enemy state at any time during a designated war period”. The terms “veteran”, “designated war period”, “enemy state” and “military forces” are defined in Item 1 of the Schedule and it is accepted that, in this case, these are satisfied, that the designated war period is World War 2 and that the enemy state is Germany. Item 1 of the Schedule defines “interned” to mean:
(a)confined in a camp, building, prison, cave or other place (including a vehicle); or
(b)restricted to residing within specific limits.
3. The issue for determination is whether Mr Collett was interned by German forces during World War 2. The standard of proof is provided for in s 120(4) of the Veterans’ Entitlements Act 1986 (“the VEA”)[1] which requires that such matters be determined to the Tribunal’s reasonable satisfaction. This imports the civil standard of proof so that the issue must be determined on the balance of probabilities[2].
[1] See Item 7(b) of the Schedule.
[2] Fogarty v Repatriation Commission (2003) 37 AAR 363 at 373.
EVIDENCE
The applicant
4. Mr Collett attended the hearing and gave the following evidence. In April 1941, he was serving as a member of the Australian Army Service Corps with the 6th Division AIF Supply Column in Greece. He was engaged in the defence of an airfield near Athens. His unit was subjected to heavy bombardment from German aircraft. A planned evacuation by ship did not eventuate as allied vessels were repelled by German air strikes. The airfield was overrun by German forces. The Australians were in a hopeless position and would have been “blown up” if they had not surrendered. Mr Collett understood that the company of 260 to 300 men of which he was a part was surrendered to the Germans by two officers, Lt Isherwood and Lt Macfarlane. He was unaware of any formal surrender at that time as he was not aware of any approach by German personnel. He said that the German forces paid no regard to them and passed them by, at a distance of perhaps 50 metres, on a road as they headed towards Athens. Mr Collett said that he had no contact with any German military personnel and did not observe any of them apart from those who were passing along the road to Athens.
5. Mr Collett recalled that the men were told to lay down their weapons. Mr Collett refused to do this and retained his rifle and a quantity of ammunition. The event occurred near the coast and, after approximately two hours, he and two other Australian soldiers made their way to the beach. There, they found a damaged dinghy. They secreted this and hid with it for some 12 to 18 hours before they launched it into the sea and began to make their way down the coast. After a voyage of some 27 days, mainly in hours of darkness to avoid discovery, they arrived in Crete. There, Mr Collett attached himself to the 28th Maori Battalion of the New Zealand Army until evacuated by ship.
6. In a statement, dated 14 April 2008, Mr Collett confirmed that he was not physically handled by German troops at any stage and that he was not watched by guards. In an earlier statement of his service history lodged with the respondent in relation to a different claim in March 1986, Mr Collett also referred to his experience of being taken prisoner in Greece and escaping by boat to Crete.
Other evidence
7. Mr Collett’s service records were in evidence. They confirm that he embarked by ship from the Middle East to Greece on 9 April 1941 and that he disembarked in the Middle East from Crete in May 1941. He is also noted to be missing in action but the record is unclear as to the timing or duration of that period. On one reading of the material, he was missing for only one day before he rejoined his unit.
8. Aspects of Mr Collett’s claim were investigated by Associate Professor John McCarthy from the Australian Defence Force Academy. In his research, he found a formal record of Lt Isherwood and Lt MacFarlane being taken as prisoners of war by German forces in Greece in the definitive list of Prisoners of War, Armies and Other Land Forces of the British Empire 1939-1945 (HMSO London, 1945, reprinted Hayward Suffolk, 1990). However, he could find no such record of Mr Collett being a prisoner of war. In his report, dated 8 November 2007, he noted that Mr Collett’s name was not listed on a Nominal Roll as a Prisoner of War of World War 2. He attached an example of such a listing of a prisoner of war who was captured by German forces.
SUBMISSIONS
9. Ms Studt, for Mr Collett, contended that, for the period following the surrender of the Australian soldiers until Mr Collett arrived in Crete, he was a prisoner of war of the German forces and, therefore, had been interned by them. Accordingly, she submitted that the eligibility requirements of the Schedule were met. She referred to inconsistencies and inaccurate entries in Mr Collett’s service records and submitted that these should not be used to reject the claim because of the difficulties associated with accurate record-keeping at the time.
10. Mr Babington, for the respondent, accepted the account given by Mr Collett but submitted that this was not sufficient to satisfy the terms of the Schedule. He referred to the Explanatory Memorandum to the Act and its reference to the compensation payment being available to “prisoners of war interned in Europe” during World War 2. He also referred to the Summary of the Schedule with its reference to previous compensation payments to prisoners of war of the Japanese and North Korean forces in World War 2 and to prisoners of war in Europe having experienced similar levels of “extreme brutality and starvation”. Mr Babington also referred to similar statements in the second reading speech in the House of Representatives on 9 May 2007 and in the Senate on 10 May 2007 and submitted that the Schedule was directed at those who were prisoners of war who experienced such adverse treatment as a result of being captured and that it was not directed at those who were held for only a relatively short period. He submitted that Mr Collett had not been a prisoner of war and had not been interned by German forces but, rather, had avoided this by making his escape from Greece to Crete, albeit in difficult circumstances.
CONSIDERATION
11. I accept Mr Babington’s contention that, in giving meaning to the terms of the Schedule, it is appropriate to make reference to relevant extrinsic materials such as the Explanatory Memorandum to the Act and the Second Reading Speech[3]. I note the references therein to the comparison with prisoners of war in Europe and those in Japan and North Korea with many having experienced similar levels of “extreme brutality and starvation”. However, I do not accept that the Schedule requires that a veteran have actually experienced such adverse treatment as a result of being captured in order to be eligible for the compensation payment. Neither do I accept that a veteran must have been a prisoner of war in any formal sense or have been the subject of capture for any particular length of time before it can be said that he was interned[4]. I am satisfied that Mr Collett will be eligible for the compensation under the Schedule if he was interned by the German forces even for a brief period.
[3] Acts Interpretation Act 1901 ss 15AA, 15AB.
[4] Price v Repatriation Commission [2003] FCA 339 at [34].
12. Paragraph (b) of the definition of “interned” refers to a veteran being restricted to residing within specific limits. Unlike paragraph (a) of the definition, this suggests a long term restriction and it is not contended that this is applicable in Mr Collett’s case. Paragraph (a) requires that the veteran be confined in a camp, building, prison, cave or other place (including a vehicle). Of these, the only relevant component is “other place” and there is nothing in the provision which would require this to be read narrowly. I am satisfied that the area of land on which the surrender occurred is embraced by that term.
13. I accept Mr Collett’s evidence that there was a surrender of Australian soldiers including Lt Isherwood and Lt MacFarlane in the area that he described, that they became prisoners of war and that they were interned. There is no material before me to indicate when that surrender occurred or the procedures that operated in effecting that surrender. Neither is there material which identifies who, apart from Lt Isherwood and Lt MacFarlane, was involved in the surrender.
14. I also accept Ms Studt’s submission that inconsistencies and inaccuracies in Mr Collett’s service records should not be relied upon to defeat his claim. That is the effect of s 119 of the VEA which is specifically nominated in item 7 of the Schedule as applying to the compensation claim.
15. Mr Collett’s evidence points to a voluntary surrender in the face of no realistic alternative and without any involvement of German military personnel at least prior to the time when he and the other two soldiers removed themselves to the beach area where they located a dinghy. His evidence was that this was a period of approximately 2 hours during which he retained possession of his rifle and ammunition and did not come into personal contact with or observe any German guards or other military personnel except those traversing the roadway to Athens. There is no evidence before me of what occurred in the surrender area after that time except that the prisoner of war status of Lt Isherwood and Lt MacFarlane indicates that German military personnel were involved at some point.
16. The Oxford Dictionary[5] meaning of “confine” is “to keep in a narrow place, within or to limits or defined area; imprison”. I am satisfied that Mr Collett was not confined once he and the two other Australians left the surrender area and, accordingly, he was not interned at any time thereafter. As to the period of approximately 2 hours when Mr Collett was in the area of surrender, it is not sufficient, for the Schedule to apply, for Mr Collett to have been confined in the surrender area. Under Item 2(b) thereof, he must have been confined in that place by the military forces of the enemy state of Germany. There is no evidence of any formal capture of Mr Collett by German military personnel or even the presence of any such personnel in the surrender area during those 2 hours. While that is the type of deficiency which may be overcome through the application of s119 of the VEA noted above, in this case, Mr Collett’s evidence was clear that there were no German military personnel involved in the 2 hour period before he left the area. In that situation, I am reasonably satisfied that any confinement during those 2 hours in that place was not by the military forces of the enemy state of Germany. The absence of such confinement is demonstrated by his capacity to retain possession of his rifle and ammunition for some 2 hours and then to leave the area and go to the beach. While Mr Collett is to be commended for his meritorious service generally and for his actions in escaping capture in the manner he detailed, his circumstances, nevertheless, do not fall within the ambit of the Schedule.
[5] The Australian Concise Oxford Dictionary (7th Edition 1987).
DECISION
17. The Tribunal affirms the decision under review.
I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member
Signed: ...........................[Sgd].....................................................
Elizabeth Young, Research AssociateDate of Hearing 16 September 2008
Date of Decision 3 October 2008
For the Applicant Ms S Studt
Solicitor for the Respondent Mr T Babington, Departmental Advocate
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