Marsh, T.J. v The Repatriation Commission

[1987] FCA 100

Re: THOMAS JOSEPH MARSH
And: THE REPATRIATION COMMISSION
No. G263 of 1986
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Burchett J.

CATCHWORDS

Administrative Law - review under AD(JR) Act of decision to refuse service pension under s.85 of the Repatriation Act 1920 - Meaning of "served in a theatre of war" - Whether the definition is concerned with the continuance in international law of a state of war until the coming into force of a treaty of peace.

Repatriation Act 1920, ss.23, 85, 100

Dawson v. The Commonwealth (1946) 73 CLR 157

Jerger v. Pearce (1920) 28 CLR 588

In Re Yamashita (1946) 327 US 1

HEARING

SYDNEY

#DATE 13:3:1987

Counsel for the Applicant: Mr. A.T. McInnes Q.C. Mr. A.L. Hill

Solicitors for the Applicant: Australian Legal Aid Office

Counsel for the Respondent: Mrs. P. Flemming Q.C. Mr. A. Robertson

Solicitors for the Respondent: Australian Government Solicitor

ORDER

The application be dismissed.

Liberty be reserved to the respondent to apply for an order in respect of its costs.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an application, brought pursuant to an order extending time, to review under the Administrative Decisions (Judicial Review) Act 1977 a decision made on 19 December 1984, by a delegate of the Repatriation Commission, to refuse the applicant a service pension. The application raises a question as to the correct construction of the expression "served in a theatre of war" as defined (in the absence of contrary intention) for the purposes of Part III of the Repatriation Act 1920 in s.23 of that Act, which of course was in force at the time of the decision. The applicant had sought a service pension under s.85 of the Repatriation Act, sub-s.(2) of which provided:

"A pension under this section shall not be granted to a member of the Forces unless the member, in the opinion of the Commission or a Board -

(a) is permanently unemployable and -

(i) in the case of a man - has served in a theatre of war; or

(ii) in the case of a woman - has served in a theatre of war or served abroad or embarked for service abroad."

1. By s.23 it was provided:
   
   

"In this Part (Part III, which also included s.85), unless the contrary intention appears-

...

'Served in a theatre of war' means served at sea, in the field or in the air, in naval, military or aerial operations against the enemy in an area, or on an aircraft or ship of war, at a time when danger from hostile forces of the enemy was incurred in that area or on that aircraft or ship of war by the person so serving."

1. The applicant enlisted in the Royal Australian Air Force on 18 February 1944 and was demobilised on 30 April 1946. He was a leading aircraftman. From his enlistment until 3 September 1945, he served in Cootamundra, Lowood, Mornington Peninsula, Point Cook and Randwick, all within Australia. On 3 September 1945, he embarked at Sydney on an American Liberty ship which left harbour that evening for Balikpapan, on the south-east coast of what was then called Dutch Borneo, via Morotai, which is an island in the Moluccas. He disembarked at Balikpapan on 21 September 1945, and was transferred to Labuan, a small island off the coast of North Borneo, on 10 October 1945. In Balikpapan, he performed guard duties at the airstrip, and on Labuan he performed guard duties in respect of medical stores and Japanese prisoners of war carrying out labouring duties.

2. Prior to the applicant's departure from Sydney, two historic events had occurred. On 16 August 1945, the Emperor of Japan had issued an imperial order to the Japanese armed forces to cease hostilities immediately, and on 2 September 1945 a formal ceremony of surrender of all Japanese forces had taken place in Tokyo Bay. After the applicant's departure from Sydney, but before his disembarkation at Balikpapan, the local surrender of all Japanese armed forces stationed in Dutch Borneo had taken place on 8 September 1945.

3. An affidavit of the delegate was read in which he expressed the reasons for his decision as follows:
   
   

"(i) Mr Marsh's overseas service occurred after both the official cessation of hostilities on 16 August 1945 and the official surrender of Japan on 2 September 1945. Mr Marsh also did not disembark at Balikpapan until after the surrender of local enemy forces in that area on 8 September 1945.

(ii) For these reasons I was of the view that there were no 'hostile forces of the enemy' as contained in the definition of 'served in a theatre of war' in section 23 of the Act and that as a consequence Mr Marsh could not have incurred danger from any such forces."

1. For the applicant, it was submitted that the delegate fell into error by equating the Japanese surrender with the termination of the war. Reliance was placed on Dawson v. The Commonwealth (1946) 73 CLR 157 where it was held that the cessation of hostilities between Australia and Japan did not mean that there was no longer a state of war. (See also Jerger v. Pearce (1920) 28 CLR 588.) It was pointed out that the Act indicates the date of commencement of the war (see s.100), but says nothing of its termination. By Article 1 of the Treaty of Peace with Japan signed at San Francisco on 8 September 1951, and approved by Australia by the Treaty of Peace (Japan) Act 1952, it was provided:
   
   

"The state of war between Japan and each of the Allied Powers is terminated as from the date on which the present Treaty comes into force between Japan and the Allied Power concerned as provided for in Article 23."

1. Article 23 provides for the deposit of instruments of ratification of the Treaty and for its coming into force thereafter. (Cf. the case of Germany, in which, there being no treaty, termination of the state of war was declared by Commonwealth Gazette No. 49 of 9 July 1951.) Since, according to international law, a state of war still existed after 16 August 1945 and also after 2 September 1945, it was contended that there remained an "enemy" within the meaning of s.23, and that there was "danger from hostile forces of the enemy" and there were "operations against the enemy", both of which are further elements required by the definition of service in a theatre of war in s.23.

2. The argument proceeded to assert that the guarding of allied installations was an operation against the enemy and that so, too, was the guarding of prisoners of war. Prisoners might not be quiescent, and there might be stragglers or isolated units of the Japanese forces still under arms and unaware of the surrender. On 16 August 1945 the Allied Commander in Chief, General MacArthur, notifying his subordinates of the Japanese cessation of hostilities, advised that the Japanese Government had stated:
   
   

"It is presumed that the said Imperial Order (i.e. to cease hostilities) will reach the front line and produce full effect after the following lapse of time:

(a) In Japan proper - forty-eight hours.

(b) In China, Manchuria, Korea and Southern Regions except Bougainville, New Guinea and the Philippines - six days.

(c) In Bougainville - eight days.

(d) In New Guinea and the Philippines and in the case of various local headquarters - twelve days, but whether and when the order will be received by the first line units is difficult to foresee."

This, of course, was more than a fortnight prior to the formal surrender at Tokyo Bay.

1. In my opinion these submissions fail to meet the terms of the definition. The only reference in the definition to the war is in the phrase defined - "served in a theatre of war". In that collocation of words it certainly does not refer to any concept of international law. The expression is a graphic one referring to military realities. It seems to me that the definition, too, looks to military realities. Instead of using the word "war", and thus raising a doubt whether a juristic concept may be involved, the definition refers to "operations against the enemy" and "danger from hostile forces of the enemy". These are plainly practical concepts. That they are so is emphasised by the words "operations" and "hostile". The latter word would add nothing to the meaning of the phrase in which it appears if it were to be understood in the sense merely that the forces belonged to a power with which a state of war existed. It seems to me it is clearly used rather in the sense, in which the word can be used (see The Shorter Oxford English Dictionary, 3rd edition), "engaged in hostilities".

2. The service to which the definition refers is service "in naval, military or aerial operations against the enemy". I do not think the draftsman of that expression was contemplating a juristic continuance of a state of war until the coming into force of a peace treaty years after the formal surrender. He was rather using the words "the enemy" in a sense corresponding to that later defined in s.100:
   
   

"'the enemy' means the forces, or any part of the forces, of a State at war with His Majesty during the war."

There, as Mrs. Flemming Q.C. submitted for the respondent, "during the war" refers to the period of actual conflict between the contending forces, and is distinguished from a state of being "at war".

1. The legal continuance of the state of war upon which the applicant relies is consistent with a complete absence of all hostilities, and with the total surrender of all opposing forces: see R. v. Bottrill; Ex parte Kuechenmeister (1947) 1 KB 41. Indeed, if a peace treaty had not in the event been concluded, it might have been strictly correct to regard the cessation of hostilities as the end of the war with Japan: Jerger v. Pearce (supra, at 593); von Glahn, Law Among Nations, 4th ed., 628 et seq. Since 1949, international law has underlined the significance of a cessation of hostilities by Article 118 of the 1949 Geneva Convention on Prisoners of War, which requires their immediate release and repatriation, but the Geneva Convention was not in force at the time the applicant was in Borneo. However, even before the Geneva Convention, in In Re Yamashita (1946) 327 US 1, which concerned the Japanese General Yamashita who had been sentenced to death by the military War Crimes Tribunal in the Philippines set up by General MacArthur, Stone C.J., delivering the majority opinion of the Supreme Court of the United States, said (at 12):
   
   

"No writer on international law appears to have regarded the power of military tribunals, otherwise competent to try violations of the law of war, as terminating before the formal state of war has ended."

And in his dissenting judgment, Rutledge J. said (at 46):

"We are technically still at war, because peace has not been negotiated finally or declared. But there is no longer the danger which always exists before surrender and armistice. Military necessity does not demand the same measures."

(He was speaking of the exigencies of war as a justification for "departure from our basic concepts of fair trial.") I have underlined the words "formal" and "technically" because they emphasise how slender is the juristic thread connecting the state of affairs after the surrender with the state of war that preceded it.

1. In case the meaning of the definition might be thought doubtful, Mrs. Flemming Q.C. also referred to the second reading speech of the then Prime Minister, Mr. Lyons, when it was inserted into the Act. That speech referred to the "stress and strain of their experiences" as justifying the grant of a service pension to those who had "served in a theatre of war". It made mention of "the deprivations inevitably resulting from participation in modern warfare", concluding that "it is ... undeniable that the strenuous conditions of modern war are capable of hastening the process of decay which impairs organic functions." (See 1935 House of Representatives Hansard at 1809, 1814.) This certainly suggests that Parliament contemplated the very special stresses of combat, during the continuance of military operations as a part of the conduct of war in the ordinary sense, and not the mere existence of a state of war according to international law. Their endurance of these very special stresses was thought to require the grant of a pension to particular incapacitated persons, whether or not their incapacity could actually be attributed to their war service; as Mr. Lyons said at p.1809 "it may reasonably be (so) regarded".

2. While it is sufficient for a woman under the terms of s.85(2) to have served abroad, a man must have served in a theatre of war. In my opinion the delegate committed no error of law when he concluded that, in the circumstances pertaining to the applicant, there were no "hostile forces of the enemy" from which he could have incurred danger in the relevant area. Accordingly, I dismiss the application.