Leung and Repatriation Commission - [2002] AATA 873

DECISION AND REASONS FOR DECISION [2002] AATA 873

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/1791

VETERANS APPEALS DIVISION           )
           Re      MARIETTA LEUNG
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Ms N Bell, Member

Date2 October 2002
PlaceSydney

Decision The Tribunal affirms the decision under review.

[SGD] Ms N Bell
Member

CATCHWORDS
REPATRIATION COMMISSION – Compensation (Japanese Internment) Act 2001 – section 4(2) requirement of domicile in Australia immediately before the commencement of internment – whether Applicant was domiciled in Australia – discussion as to whether New Guinea part of the territory of Australia as at 1943 – held that domicile in New Guinea does not satisfy the legislation – decision of the Respondent affirmed.
Acts Interpretation Act 1901 s 17
Compensation (Japanese Internment) Act 2001 ss 4(2)(a)(b)(c)
New Guinea Act 1920 s 4
Re Chan and Repatriation Commission [2002] AATA 742

REASONS FOR DECISION

2 October 2002 Ms N Bell, Member

This is an application by Mrs Marietta Leung ("the Applicant") for review of the decision of the Repatriation Commission ("the Respondent") to refuse the Applicant's claim for compensation pursuant to the Compensation (Japanese Internment) Act 2001 ("the Act").
The Applicant was represented by her son, Mr Bernard Leung, and the Respondent was represented by Mr Jim Marsh, Advocate. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.
The following matters are not in dispute:

The Applicant was born in Rabaul, New Guinea on 9 September 1927;
The Applicant's father was born in China and did not reside in Australia prior to World War II;
The Applicant was interned by Japanese military forces in New Ireland from 1943 to 1944.

The relevant provision of the Act is section 4(2) which 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.
..."

There is no dispute that the Applicant satisfies the requirements of section 4(2)(a) and (b) of the Act. The issue before the Tribunal is whether the Applicant was, as required by section 4(2)(c), domiciled in Australia immediately before her internment.
SUBMISSIONS
Mr Leung submitted, on behalf of the Applicant, that before and during the period of her internment, New Guinea was under the administration of Australia and was, for relevant purposes, a part of Australia. It was submitted on behalf of the Applicant that on this basis the Applicant and her father were domiciled in Australia immediately before the Applicant's internment.
Mr Marsh, for the Respondent, submitted that, as a minor at the time of her internment by the Japanese, the Applicant took the domicile of her father and that the domicile of her father at the relevant time was either China or New Guinea but not Australia. The Respondent further submitted that by the application of section 17 of the Acts Interpretation Act 1901, "Australia" means the Commonwealth, and does not include any external territory other than Christmas Island and the Cocos Islands, and that New Guinea has never been a part of the Commonwealth of Australia in any relevant sense. The Respondent relied generally on the decision of Deputy President Purvis in Re Chan and Repatriation Commission [2002] AATA 742.
In reply, Mr Leung submitted on behalf of his mother, that, if the Respondent's submissions are correct, then the Act has the effect of excluding non caucasian people and fails to concentrate on the central issue which is the suffering endured by those people who were interned by Japanese military forces during World War II. He argued for a review of the legislation should it be decided that the Applicant is excluded, by the provisions of the Act, from eligibility for compensation.
CONSIDERATION
The Applicant, at the time of her internment, was a minor. It follows, according to common law, that she received the domicile of her father (paragraph 865, Halsbury's Laws of England, 4th Edition Reissue 1996, Vol. 8(1)). It is not clear from the evidence available to the Tribunal whether the Applicant's father's domicile at the relevant time was China, where he was born, or New Guinea. However, for the purposes of this analysis, the Tribunal will proceed on the basis that his domicile was New Guinea. The question that then arises is whether being domiciled in New Guinea in 1943 equates to being domiciled in Australia in 1943.
There was no dispute between the parties that, after World War I, New Guinea became a Mandated Territory of Australia under the League of Nations Settlement. 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."
In Chan (supra), Deputy President Purvis quoted the following extract from 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."
The Applicant's submission is that, as a territory of Australia, under the administration of Australia, New Guinea is a part of Australia.
However, the Acts Interpretation Act 1901 provides in section 17:
"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;
..."
In Chan (supra), following an examination of the Explanatory Memorandum and the Second Reading Speech to the Act, Deputy President Purvis said:
"26. 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.
27. It is desirable to also consider the arguments raised in the event of a contrary intention being open for discussion.
28. 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."
29. 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.
30. 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 Commonwealth and 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 Frost 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 Frost 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 Frost 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 Frost 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. ..."
31. The Tribunal is satisfied and so finds that a similar conclusion must be reached by it with reference to the current issue before it."
With respect, the Tribunal adopts the reasoning of Deputy President Purvis in Chan (supra) and concludes that the Applicant's father, and therefore the Applicant, was not, by means of his domicile in New Guinea, domiciled in Australia immediately before the Applicant's internment. It follows that the Applicant is not eligible to be compensated under the provisions of the Act.
DECISION
The decision under review is affirmed.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Member
Signed:         .....................................................................................
  Associate
Date of Hearing  10 September 2002
Date of Decision  2 October 2002
Representative for the Applicant    Bernard Leung
Counsel for the Respondent          Jim Marsh