SRQQQ and SRRRR and Repatriation Commission
[2002] AATA 510
•26 June 2002
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2002] AATA 510
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/1628
GENERAL ADMINISTRATIVE DIVISION ) Re SRQQQ
Applicant
And Repatriation Commission
Respondent
ADMINISTRATIVE APPEALS TRIBUNAL ) ) No N2001/1629 GENERAL ADMINISTRATIVE DIVISION ) Re SRRRR
Applicant
And Repatriation Commission
Respondent
DECISION
Tribunal Mr R P Handley, Deputy President Date26 June 2002
PlaceSydney
Decision The Tribunal sets aside the decisions under review and substitutes new decisions that the Applicants are each entitled to a one-off compensation payment of $25,000 pursuant to the Compensation (Japanese Internment) Act 2001. ..............................................
R P Handley
Deputy President
CATCHWORDS
REPATRIATION COMMISSION – Compensation (Japanese Internment) Act 2001 – compensation to civilian for internment by Japanese – requirement of domicile in Australia immediately before the commencement of the internment – whether Applicants were domiciled in Australia – meaning of domicile pursuant to the Act – held that the domicile of both Applicants was Australia – decision of the Respondent set aside.
Compensation (Japanese Internment) Act 2001 ss 3, 4(2), 7(1)(2)
Veterans’ Entitlement Act 1986 ss 9, 119(1), 119(1)(h)
Lloyd Evans Deceased National Provisional Bank v Evans (1947) 1 CH 695
McDonald v Director-General of Social Security (1984) 1 FCR 354
Re Wong and Secretary to Department of Social Security (AAT 2556, 21 February 1986)
Winans v Attorney-General (1904) AC 287
REASONS FOR DECISION
26 June 2002 R P Handley 1. This matter involves applications by SRQQQ (N2001/1628) and SRRRR (N2001/1629) for a review of decisions of the Repatriation Commission made on 25 September 2001 to reject SRQQQ’s and SRRRR’s claims for compensation payments under the Compensation (Japanese Interment) Act 2001 (“the 2001 Act”). At the hearing, the Applicants were represented by Tony Latimore, of the Returned Services League (“RSL”), and the Respondent was represented by Rhonda Henderson, of Counsel. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”), together with the documents tendered by the parties. Oral evidence was given in person by SRQQQ and by telephone by Richard Hilliard from the USA.
BACKGROUND
2. SRRRR, who was born on 1 September 1919 and is aged 82, and her daughter SRQQQ, who was born on 2 September 1937 and is aged 64, were interned by the Japanese on what is now the Indonesian Island of Sulawesi for approximately three years between 1942 and 1945. After their release from Japanese internment by Allied Forces, they were flown to Australia.
3. On 25 May 2001, the 2001 Act took effect. On 23 July 2001 and 25 July 2001 respectively, SRRRR and SRQQQ lodged claims for compensation under the 2001 Act in respect of their internment. On 25 September 2001, a delegate of the Respondent made decisions rejecting their claims for compensation on the ground that they were not domiciled in Australia immediately before the commencement of their internment. On 23 October 2001, SRRRR and SRQQQ lodged claims for a review of these decisions by the Tribunal.
Applicable Law
4. Eligibility for a civilian claiming compensation in their own right in respect of internment is provided for in s 4(2) of the 2001 Act as follows:
4(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 anytime during the designated war period;
(c)the person was domiciled in Australia immediately before the commencement of that internment.
5. Section 5 provides that a compensation payment “is a one-off payment of $25,000”. Section 7(1) states that claims under the 2001 Act are to be decided by the Respondent. Section 7(2) states that a person who is dissatisfied with such a decision may apply to the Review Tribunal for a review. “Review Tribunal” is defined in s 3 as meaning the Tribunal.
Evidence
6. The background to this case concerns the Hilliard pearl fishing family business based in Broome, Western Australia. On 10 March 1889, Robin Henry Hilliard was born in Cossack, Western Australia, to Henry Francis Hilliard and his wife Martha. In the 1880s, Irish born Henry Hilliard, referred to in accounts from that time as “the Captain”, commanded a brigantine, pearl fishing off north western Australia. Robin Hilliard appears to have followed his father into the business and, on 3 July 1914, is recorded as trading in the Dutch East Indies in a schooner co-owned with W A Chamberlain and making periodical visits to Broome (A5, p33). On 27 July 1914, Robin Hilliard is recorded as being in partnership with W A Chamberlain of “Koepang” (now Kupang) in a trading business in Kupang in Timor. Records from 1923 refer to Robin Hilliard of Kupang fishing off Scott's Reef in the Timor Sea off north western Australia. In 1924, Robin Hilliard is said to have “arrived in Broome with 50 Kupangers for indenture. He announced his intention of resettling in Broome”. On 24 October 1926, Robin Hilliard advertised in the Norwest Echo, Broome, for “young healthy men” for his pearling business. On 10 July 1928, Police Constable Dewar, of Beagle Bay, is recorded as reporting that a ketch was anchored at Barred Creek on 3 July 1928 which was supposed to be “the same boat that Robin Hilliard, formerly of Broome and now of Koepang came to Broome from Kupang last year” (A5, p49).
7. SRRRR was born Charlotte Marion Hilliard on 1 September 1919 at Makasa in what was then the Dutch East Indies (now Ujung Pandang in Sulawesi Celebes) to Robin Hilliard and Ernestine Worms. Ernestine Worms was the daughter of a Dutch official working in the Dutch Colonial Service who was a local controller in Kupang on the island of Timor. SRRRR has one younger brother, Richard Robin Hilliard, who was born about 18 months after his sister on board a schooner belonging to their father. Richard Hilliard’s evidence is that his birth was not registered until 1923 in Flores. Mr Hilliard said that he had tried to obtain documents concerning his mother, including relating to his parents’ marriage, but was told that these were destroyed during the Japanese occupation.
8. Richard Hilliard’s evidence is that his parents separated in 1924 and that he and his sister were taken by their father to Broome to stay with their grandmother, Martha Hilliard. SRRRR’s recollection is that her mother died in about 1924 and it was a result of this that she and her brother were taken to Broome. However, Mr Hilliard gave evidence that he saw his mother some years later on the way to Makasa from Broome and, at that time, her name was Mrs Rante, and she had recently been widowed following the death of her second husband. Mr Hilliard thought that she may possibly have died during the War. He said his father never talked about what had happened between them.
9. After arriving in Broome in 1924, SRRRR and Mr Hilliard were cared for by their grandmother for a period of about one year. It appears that Henry Hilliard had died shortly before this and his death may have had some connection with Robin Hilliard returning to Broome and leaving his two children to be cared for by their grandmother. In about 1925/1926, Robin Hilliard collected his children from Broome, apparently because their grandmother was having difficulty coping. From then on, Robin Hilliard assumed responsibility for the care of his children and arranged schooling for them in Makasa. SRRRR stated that she boarded in Makasa because her father’s business operated from the island of Flores. Richard Hilliard said he first went to a Dutch mission school in Makasa at the age of about 7. Later, he went on to High School there. He recalled that SRRRR had had private tuition with other Dutch children in Makasa and then went to a trade school. Neither he nor his sister went to school in Australia. Mr Hilliard said that his father carried on his business from a number of bases in the Dutch East Indies. He moved from one island to another so as not to exhaust the resources of any one area. These bases included Flores, Kupang (Timor), Makasa and Broome. SRQQQ said she has memory glimpses of her grandfather’s pearling boats and of the eeriness of the sea at night. She remembers him showing them unusual pearls that he found during his peal fishing trips.
10. Richard Hilliard said his father was the owner and director of the Flores Pearl Trading Company. He had to obtain licences from the Dutch officials to fish for pearls in different areas. It seems likely that Robin Hilliard came to meet Ernestine Worms when he was obtaining the required licences from her father in Kupang. Richard Hilliard said his father used to talk a lot about Australia and how he would change the name of his business to Hilliard and Son which would operate out of Broome, wherever permitted by the necessary licences. SRRRR could also recall her father telling her about his life in Australia and how much he missed his home. He said that he wanted SRRRR to settle in Australia and planned for her to return there to live with her grandmother in Perth when she turned 16 years of age. This did not, however, eventuate, although Robin Hilliard apparently also had plans to escape to Australia at the beginning of the War.
11. At the age of 17, SRRRR became pregnant by Joseph Scharf who had a hairdressing business in Makasa and, later, on Java. Richard Hilliard said that Mr Scharf was a Hungarian from Vienna. Robin Hilliard opposed SRRRR and Mr Scharf marrying and, according to Richard Hilliard, Robin Hilliard took SRRRR away with him to the island of Flores. Richard Hilliard said that his father might have been influenced by the talk of war at that time with Mr Scharf being from a country associated with Nazi Germany. SRQQQ said there was also opposition to the marriage from the Dutch authorities because it involved a mixing of races. The result appears to have been that SRRRR separated from Mr Scharf and was dependent upon her father, Robin Hilliard for her support after the birth of the child, SRQQQ, on 2 September 1937 in Makasa. SRQQQ said she heard later that Mr Scharf was deported from Java as an alien.
12. In 1942, SRRRR and her daughter, SRQQQ, were interned by the Japanese. Richard Hilliard had joined the Dutch Army following a request from the Queen of Holland asking all allied foreigners in the Dutch East Indies to join the Dutch Army. Mr Hilliard was eventually captured by the Japanese and held as a prisoner of war at Changi. Robin Hilliard was also detained by the Japanese in 1942 and died in captivity. SRQQQ said after her birth, her mother was emotionally and financially dependent on her father, Robin Hilliard, and remained so until they were separated in the early days of the Japanese occupation. SRQQQ said before their internment, their home was wherever her grandfather’s fishing base was at the time, including Flores, Timor and Pulau Roti. Makasa, however, was their main base - “almost a city compared to the smaller islands” (A1). SRQQQ said that during this time her mother was helped by a “Baboo – nursemaid” in caring for her child. SRQQQ said (A1):
We lived happily like this oblivious to any other part of the world, except that “soon” we would go to my grandfather’s people in Western Australia. My grandfather was very generous in his caring of us and when ashore would take us shopping and satisfy our every request.
13. SRQQQ remembered that she and her mother were interned by the Japanese after interrogation and transported to Kampili, on the outskirts of Makasa where they were held in what had previously been a leper hospital and colony for the next three and a half years. After their liberation by the Allied Forces in 1945, they were taken back to Makasa for registration and housing. With Robin Hilliard being dead, SRRRR had no means of support. With the assistance of a Captain Fisher of the Australian Armed Forces and the Australian Red Cross, eventually, they were flown to Australia, initially to Brisbane and then on to western Australia. SRQQQ and her mother remained in western Australia until August 1946 when Ken Single, an Australian soldier who had been in Makasa with the Allied Armed Forces, and who, while there, had developed a relationship with SRRRR, located them in Western Australia and travelled to visit them.
14. Thereafter, SRRRR and SRQQQ travelled to Sydney on where, 16 September 1946, Mr Single and SRRRR were married. SRRRR was described on her certificate of marriage (Tp13) as Charlotte Marion Scharf, known as Charlotte M Hilliard, widow. SRRRR explained that she described herself in this way on the marriage certificate in order to protect her daughter from the stigma of being an illegitimate child since “in those days it was very sinful to have a child out of wedlock” (A6). They then moved to Taree where Mr Single’s family were based and it was in Taree that SRQQQ grew up. SRQQQ was formally adopted by Mr Single on 16 March 1948 (A3). Growing up in Taree, she believed that he was her father and it was only when SRQQQ was in her mid teens that she learned that Mr Single was not in fact her biological father and her mother told her the truth about what had happened.
15. SRQQQ said her mother is currently very frail and suffering from a rare Alzheimer syndrome related to her having suffered poor nutrition earlier in her life. Although mentally still alert, SRRRR is now severely handicapped and largely confined to a chair, relying on a wheelchair for mobility. She also suffers from a heart problem and her voice is very thin and she finds it difficult to speak. As a result, SRRRR was unable to attend the Tribunal hearing and the Tribunal relied instead on a statement by SRRRR in the T Documents dated 23 July 2001 (Tp9) and on a record of an interview with SRRRR on 9 May 2001 (A6).
SUBMISSIONS
Applicant
16. Mr Latimore, for SRRRR and SRQQQ, said the issue in dispute is whether the Applicants had Australian domicile immediately before the commencement of their internment. The Applicants contend that they did have Australian domicile at that time on the following basis: first, Robin Hilliard, SRRRR’s father, had Australian domicile by birth; second, SRRRR was the legitimate child of Robin Hilliard and gained Australian domicile by birth; and, third, SRQQQ was the illegitimate daughter of SRRRR and gained the domicile of her mother at birth. Neither, SRRRR nor SRQQQ ever changed their domicile.
17. With regard to the facts, Mr Latimore noted that SRRRR mother, Ernestine, was the daughter of a Dutch Colonial Officer in Kupang, Timor, with whom Robin Hilliard negotiated pearl fishing licences. SRRRR’s brother, Richard Hilliard, has been advised that marriage records from that period have been lost or destroyed. However, the Applicants submit that Robin and Ernestine Hilliard were married. Richard Hilliard gave evidence that his parents separated in 1924 and that he saw his mother some years later when she had recently been widowed after her second marriage.
18. SRQQQ’s evidence was that her grandfather spoke to her mother on two occasions about returning to Australia: first, saying that SRRRR would go back at the age of 16 and live with her grandmother in Perth; and, second, in relation to her grandfather’s plan to escape to Australia at the beginning of the War.
19. Mr Latimore noted that SRQQQ’s birth was registered in the name of Josephine Charlotte Hilliard (A2). She was later adopted by Mr Ken Single (A3). Mr Latimore suggested that the reason that SRRRR described herself as a widow on her marriage certificate (T p13) was because she would not have wanted her husband’s parents, who witnessed the bride’s and groom’s signatures on the marriage certificate, to know that SRRRR had given birth to an illegitimate child.
20. With regard to the historical notes on Indonesians in Northwest Australia (A4), Mr Latimore submitted that these notes provide evidence of Robin Hilliard’s continuing involvement with Broome. Mr Latimore also noted the extract from the account of the life of Martha Hilliard (A4), Robin Hilliard’s mother, who settled in Broome. Martha Hilliard finally died in Perth in about 1946 at the age of 82.
21. With regard to the 2001 Act, Mr Latimore referred the Tribunal to s 9 which provides that certain provisions of the Veteran’s Entitlements Act 1986 (the 1986 Act) apply as if the 2001 Act were part of the 1986 Act. These provisions include s 119(1) of the 1986 Act which, Mr Latimore submitted, emphasises that this is beneficial legislation, reflecting the administrative rather than judicial nature of decision-making under the 1986 Act and in s 119(1)(h), recognising some of the evidentiary difficulties attributable to the passage of time and the absence of/or deficiencies in relevant official records. Mr Latimore referred the Tribunal to Robin Creyke and Peter Sutherland, Veterans’ Entitlements Law (Sydney: Federation Press, 2000) at 392, where the authors state:
Section 119(1)(h) is available to excuse evidential defects in claims or applications in recognition of the special problems of proof in the veterans’ entitlements system. Providing adequate evidence of matters which occurred during times of conflict is notoriously difficult. In addition, in many cases, the length of time since service, the paucity of records, and the frailty of human memory, mean that much of the material before decision-makers in the veterans’ entitlements system would fail the probative evidence standard.
22. With regard to the law of domicile, Mr Latimore referred the Tribunal to Halsbury’s Laws of England (4th edition) at paragraph 685:
A legitimate child, born in wedlock to a living father receives the domicile of the father at the time of birth; an illegitimate child receives the domicile of the mother.
In this case, SRRRR was a legitimate child and therefore acquired her father’s domicile at birth. In the case of SRQQQ, because she was an illegitimate child, she acquired the domicile of her mother at birth. Mr Latimore submitted that Robin Hilliard had Australian domicile by virtue of his being born in Australia and never changed that domicile. Mr Latimore emphasised that a change of domicile to that of another country requires that the person have the intention of continuing to reside in the new country indefinitely. There is a presumption against such a change with a burden of proof of at least the civil standard, but which becomes more onerous ’where the 2 countries are markedly dissimilar in language, climate or ethnic, cultural or religious background”: Halsbury’s Laws of England (supra) at paragraph 691.
23. Mr Latimore referred to the survey of the relevant law conducted by the Tribunal in Re Wong and Secretary to Department of Social Security (AAT 2556, 21 February 1986). The Tribunal referred to the House of Lords decision Winans v Attorney-General (1904) AC 287 at 288, where Lord Halsbury described the idea of domicile as being adequately expressed by the phrase “Was the place intended to be the permanent home?” In the present case, the evidence supports a finding that Robin Hilliard always had the express intention of returning to Australia. He operated his business of pearl fishing from a number of temporary bases with his only regular base outside Australia being Makasa. In Wong (supra) at para 29, the Tribunal refers to the decision in Lloyd Evans Deceased National Provisional Bank v Evans (1947) 1 Ch 695, when Wynn Parry J said that to acquire a domicile of choice requires that the person be demonstrated to have an “unequivocal” intention to do so. In the case of Robin Hilliard, Mr Hilliard had continuing business and family links with Western Australia and expressed an intention to return to Australia. While Mr Hilliard maintained a base in Makasa, his residence was largely on ships or temporary bases elsewhere, and he continued to return to Broome from time to time. Mr Latimore submitted that Mr Hilliard never changed his domicile from that of his Australian domicile of origin. There is no evidence that Mr Hilliard ever intended to remain indefinitely in any of the various islands of the Dutch East Indies.
24. Mr Latimore said in the case of SRRRR, either she gained Australian domicile at birth as a legitimate child, or, if illegitimate, she gained this as an infant when she came under the care of her father after her parents separated. However, Mr Hilliard’s relationship with Ernestine Worms was a longer term, married relationship. Ms Worms was from a relatively well-to-do, middle class Christian background. Her father was a Dutch Government official with a position of authority in Timor, and so it is more likely that the relationship was formalised in marriage. Given that any marriage would have taken place about 90 years ago in a tropical, third world environment, and one which was occupied by the Japanese for a number of years during World War II, followed by later military dictatorships, makes it not unlikely that documentary records may have been lost or destroyed. In such a situation, regard should be had to s 119(1)(h) of the 1986 Act. Mr Latimore also noted that SRRRR was still financially dependent upon her father when she in turn had a dependent child, at the time she was interned in 1942.
25. With regard to SRQQQ, Mr Latimore said the evidence supports the finding that she is SRRRR’s illegitimate child and that SRRRR and Mr Scharf never married. Mr Latimore pointed to SRQQQ’s birth notification (A2), adoption certificate (A3), the oral evidence of Richard Hilliard, and SRQQQ’s evidence that her mother told her of her being an illegitimate child when she was a teenager. SRRRR’s use of the description “widow” on her marriage certificate is understandable in the circumstances of that time and her not wishing her husband’s parents to know that she had not been previously been married, yet had a child. Moreover, if SRRRR had been married to Mr Scharf, Mr Latimore questioned why the Japanese would have interned her since she would have been a national of a country, which was an ally of Japan.
Respondent
26. Ms Henderson, for the Respondent emphasised that s 4(2)(c) of the 2001 Act requires that the person was domiciled in Australia immediately before the commencement of internment. Thus, in the case of both SRRRR and SRQQQ, this must have been in 1942.
27. Ms Henderson emphasised that proceedings before the Tribunal are administrative proceedings and so no party bears a particular burden of proof: McDonald v Director-General of Social Security (1984) (1) FCR 354. Ms Henderson submitted that the standard of proof required in Tribunal proceedings is that of a reasonable satisfaction. The Tribunal must act on the material before it but is not bound by the rules of evidence and may inform itself on any matter as it thinks appropriate.
28. With regard to the law of domicile, Ms Henderson referred the Tribunal to Halsbury’s Laws of England (supra) at paragraph 687, where it is stated that the length of a person’s residence in a country is immaterial except as evidence for the existence of the necessary intention to change domicile. At paragraph 688, it is stated:
An intention to reside in a country for a fixed period of time, or until some clearly foreseen and reasonably anticipated event happens, will not be sufficient, but if the proper conclusion from all the circumstances is that the individual intends to make his home in a country for an indefinite time, he will acquire a domicile of choice there, notwithstanding a continuing emotional attachment to some other country or an intention to change his residence upon some vague or improbable contingency.
29. Ms Henderson referred to the Tribunal decision in Re Wong (supra) at para 11, where the Tribunal emphasises the danger of placing too much reliance on a person’s own declarations. The decision-maker must look at the facts and at the conduct of the petitioner. In Hyland v Hyland (1971) 18 FLR 461, Asprey JA said that a person may still have ties with or visit the country of his or her birth consistently with the acquisition of a new domicile.
30. With regard to the facts, Ms Henderson referred the Tribunal to the Notes on Indonesians in Northwest Australia (A5). Ms Henderson drew the Tribunal’s attention to references there to Robin Hilliard being of “Koepang”. Although Mr Hilliard continued to maintain contact with Broome, it appears that he was based in Kupang. Between the years 1915 and 1942, he spent the balance of his personal and business life in the Dutch East Indies and his relationship with Ernestine Worms indicates that he had a strong commitment to the area. SRRRR’s evidence (A6) of her father telling her about his life in Australia and wanting her to return there at the age of 16, and Richard Hilliard’s evidence about returning to Australia, are not sufficient to establish that Robin Hilliard maintained his domicile of origin. The evidence suggests that even though he may have had it in mind to return to Australia one day, nevertheless, he had established a domicile of choice in the Dutch East Indies. This was certainly the case in 1942 when SRRRR, being of at least 21 years of age, could have acquired a different domicile to that of her father. However, given her dependence upon her father, her domicile at that time probably continued to be his domicile.
APPLICATION OF THE LAW AND FINDINGS
31. There is no dispute that the issue for the Tribunal to determine, pursuant to s 4(2)(c) of the 2001 Act, is the domicile of the Applicants immediately before the commencement of their internment in 1942. The law of domicile in Australia is derived from the English Common Law with statutory modifications between 1978 and 1982 in accordance with the adoption of a uniform State and federal scheme: Michael Tilbury et al, Conflict of Laws in Australia (Melbourne: Oxford University Press 2002) at 402. At Common Law, every person must have a domicile but no one can have more than one domicile at the same time. At birth, children acquire the domicile of one of their parents: a legitimate child acquires the domicile of his or her father and an illegitimate child acquires the domicile of his or her mother. A person may change their domicile by adopting a domicile of choice. A domicile of choice is acquired if a person resides or has resided in a country and intends to remain there indefinitely. A person may acquire a domicile of choice notwithstanding a continuing emotional attachment to another country. A person may also abandon an earlier domicile of choice if he or she ceases to have the intention to remain there indefinitely. Unless the person has formed an intention to live indefinitely in a new (third) domicile at the time of the abandonment, the domicile of origin revives. (Generally, see Halsbury’s Laws of England (supra) para 680 ff. In the present case, since the relevant date is 1942, the old English Common Law rules apply since, at that time, there had been no relevant statutory modification.
32. First, with regard to Robin Henry Hilliard, SRRRR’s father and SRQQQ’s grandfather, there is no dispute that he was born in Cossack, Western Australia on 10 March 1889 and acquired Australian domicile at birth. Robin Hilliard followed his father, Henry Hilliard, into the pearl fishing business operating, both in partnership and, apparently, on his own account, off the north west coast of Australia and in the Dutch East Indies. The Notes on Indonesians in Northwest Australia (A5) make reference to Robin Hilliard from July 1914 onwards. Initially, he is referred to as being of Broome and then as operating a trading business in Koepang. However, the Notes continue to record reference to Mr Hilliard in the Norwest Echo, published in Broome, and it is clear from the evidence that Mr Hilliard continued to return to Broome from time to time. For example, in 1924 after his father had died and after he had separated from Ernestine Worms, he returned to Broome and left his children in the care of his mother, Martha Hilliard and, in about 1925/1926, when he collected his children from Broome and took them with him to Makasa where he had arranged schooling for them.
33. The Tribunal finds that while Mr Hilliard used Makasa as a regular base, he also had a significant business connection in Kupang in Timor and visited other islands such as Flores and Pulau Roti on a regular basis, and Scott’s Reef off the north west of Australia. When fishing in the waters of the Dutch East Indies, Mr Hilliard seems to have operated under the terms of licences issued to him by Dutch government officials including from Ernestine Worms’ father, a Dutch Colonial Officer, who was based in Kupang.
34. The Tribunal notes SRRRR’s and Richard Hilliard’s evidence concerning their father’s attachment to Western Australia and his family in Broome. As children, they were left in the care of Robin Hilliard’s mother for at least a year in 1924 and Robin Hilliard told his daughter that he intended that she should return to Western Australia to live with her grandmother when she was aged 16. He also, apparently, had plans to escape to Western Australia as the Japanese occupation of the Dutch East Indies loomed. Richard Hilliard’s evidence was that his father spoke of their returning to Broome and renaming his company Hilliard and Son.
35. The conclusion reached by the Tribunal on the basis of this admittedly sparse evidence, is that the Tribunal is not reasonably satisfied that Robin Hilliard intended to reside indefinitely in the Dutch East Indies. While for many years, until the time of his death as a prisoner of the Japanese, he operated his business in the Dutch East Indies, he seems to have maintained both his family and business ties with Broome. The Tribunal is not therefore satisfied that Mr Hilliard abandoned his Australian domicile of origin in favour of a domicile of choice of the Dutch East Indies.
36. There is equally sparse evidence concerning Robin Hilliard’s wife, Ernestine Worms. However, Richard Hilliard’s evidence suggests that she was a Protestant, of Dutch middle class origin, her father being a government official in Kupang, Timor, with responsibilities including the issue of pearl fishing licences. Since Robin Hilliard appears to have been required to obtain such licences from Ms Worms’ father, it seems more likely than not that Mr Hilliard’s relationship with Ernestine Worms would have been formalised in marriage. The Tribunal notes that Richard Hilliard has sought to locate records concerning his parents’ marriage without success. He was informed that such records were lost or destroyed during the Japanese occupation. If this was the case, then when SRRRR was born in 1919, as a legitimate child she would have acquired the domicile of origin being the domicile of her father. Richard Hilliard’s evidence is that his parents separated in about 1924; SRRRR’s evidence is that her mother died at this time. The Tribunal’s view is that Richard Hilliard’s evidence is more plausible given that he states that he saw his mother some years later after she had recently been widowed from her second husband. Even if Robin Hilliard and Ernestine Worms were not married and the children were therefore illegitimate, it seems likely that the children passed into Robin Hilliard’s sole care in 1924, in which case they would have acquired their father’s domicile by reason of their dependence on him: Halsbury’s Laws of England (supra) at paragraph 701. However, by the time SRRRR was interned by the Japanese in 1942, she was no longer a minor and therefore capable of acquiring an independent domicile of choice.
37. The Tribunal accepts SRRRR’s and Richard Hilliard’s evidence which is supported by the “Deed of Notoriety Relating To-o Birth” concerning SRQQQ’s birth (A2), that SRRRR did not marry the father of her child, Joseph Scharf, because of opposition from Robin Hilliard and possibly from the Dutch authorities, and that SRQQQ was therefore born illegitimately. At Common Law, she therefore acquired the domicile of her mother as her domicile of origin. Since at the time of SRQQQ’s birth in 1937 and until the Japanese occupation of Makasa in 1942, SRRRR remained dependent upon her father, the Tribunal finds that she retained her domicile of origin being her father’s domicile, namely Australia. Thus, at the time of Japanese internment, the Tribunal finds, on the balance of probabilities, based on the evidence before it, that the domicile of both Applicants in this case was that of Australia. In so finding, the Tribunal bore in mind that s 119(1) of the 1986 Act which indicates that the Act being beneficial legislation, the Tribunal should take into account difficulties in ascertaining the existence of relevant evidence given the passage of time and insufficiency of records as a result of the Japanese occupation of a Dutch colony in what was then a relatively underdeveloped part of the world.
38. The Tribunal therefore concludes that the third condition required to be satisfied pursuant to s 4(2)(c) of the 2001 Act - that the Applicants must have been domiciled in Australia immediately before the commencement of internment - is satisfied and the two Applicants are entitled to compensation payments in accordance with s 5.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley.
Signed: .....................................................................................
AssociateDate/s of Hearing 24 May 2002
Date of Decision 26 June 2002
Representative for the Applicant Mr T Latimore, Advocate
Representative for the Respondent Ms R Henderson, Counsel
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