Price and Repatriation Commission [2002] AATA 819 (20 September 2002)

Last Updated: 25 September 2002

DECISION AND REASONS FOR DECISION [2002] AATA 819

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/1732

VETERANS' APPEALS DIVISION )

Re JOAN PRICE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms N Bell, Member

Date 20 September 2002

Place Sydney

Decision The decision under review is affirmed.

[SGD] Ms N Bell

Member

CATCHWORDS

REPATRIATION COMMISSION - Compensation (Japanese Internment) Act 2001 - eligibility for compensation payment for partner of deceased Veteran - whether Veteran was interned within the meaning of the Act - essential character of the Veteran's time in Singapore after the surrender of Singapore - Veteran found not to have been interned by Japanese military forces during the designated war period - decision under review affirmed

Compensation (Japanese Internment) Act 2001 sections 3, 4,

Veterans' Entitlements Act 1986 section 119

Acts Interpretation Act 1901 section 15AA(1), 15AB(1)

Compensation (Japanese Internment) Bill 2001- Second Reading speech (HR 22 May 2001)

Mason v Repatriation Commission [2000] FCA 1409

Repatriation Commission v Kohn (1989) 87 ALR 511

Re Repatriation Commission v Keeley (2000) 60 ALD 401

REASONS FOR DECISION

20 September 2002 Ms N Bell, Member

1. This is an application by Mrs Joan Price ('the Applicant") for review of the decision of the Repatriation Commission ("Respondent") dated 20 September 2001 to refuse the Applicant's claim for payment under the Compensation (Japanese Internment) Act 2001 ("the Act"). The Applicant is the wife of the late George Raymond Price ("the Veteran").

2. At the hearing of the application before the Tribunal, the Applicant was represented by Mr Tony Latimore and the Respondent was represented by Mr Jim Marsh. For the Applicant, Ms Elizabeth Price (the Applicant's and the Veteran's daughter) and Mr John Williamson (the Applicant's and the Veteran's son-in-law), gave oral evidence to the Tribunal. For the Respondent Mr Brendan O'Keefe, Historian, gave oral evidence. The following documents were before the Tribunal:

Exhibit No Document Date

TD1 Documents produced pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. T1-T3

A1 Statutory Declaration of Joan Price 29 March 2002

A2 Statement of Heddy Price Undated

A3 Statutory Declaration of Gregory Price 3 March 2002

A4 Statutory Declaration of Mary Williamson 3 March 2002

A5 Statutory Declaration of Elizabeth Price 4 March 2002

A6 Statutory Declaration of Chris Price 3 March 2002

A7 Statutory Declaration of Stanley Price 4 March 2002

A8 Statutory Declaration of John Williamson 3 March 2002

A9 Army Instruction and Guide regarding duties to perform and precautions to be taken by prisoners of war. October 1941

A10 Obituary of George Price January 1995

A11 Terms of Singapore Surrender (extract)

A12 Letter from Herbert Grey to the Department of Veterans' Affairs 6 May 1955

A13 Veteran's Medical Case Sheet

R1 Report of Brendan O'Keefe on the World War 2 military service of the Veteran 27 April 2002

R2 Veteran's Medical Examination for Reclassification August 1943

R3 Respondent's Statement of Facts and Contentions 29 July 2002

Background

3. The following matters are not in dispute. The Applicant was married to the Veteran at the time of his death on 4 January 1995 and so was his "partner" at the relevant time. The Veteran rendered continuous full time service in the AIF, under his own name as NX54817, from 26 June 1940 to 29 November 1940 and was discharged on medical grounds.

4. The Veteran enlisted in the AIF on 19 May 1941, under the name George Raymond Brady, NX10800, and rendered continuous full time service including service in Malaya, and later in New Guinea, until discharged on 11 July 1946. He arrived in Singapore on 5 October 1941 and returned to Australia by arriving in Western Australia by the Dutch ship Zaandam on 7 March 1942.

Issues

5. Section 4(1) of the Act provides:

"4 Eligibility for compensation payment

Partner of deceased veteran

(1) A person is eligible for a compensation payment in respect of a deceased veteran if the following conditions are satisfied:

(a) the person was alive at the beginning of 1 January 2001;

(b) the veteran died before 1 January 2001;

(c) the person was a partner of the veteran immediately before the veteran's death;

(d) the veteran was interned by Japanese military forces at any time during the designated war period."

6. The term "interned" is defined in section 3 of the Act as:

"(a) confined in a camp, building, prison or other place (including a vehicle); or

(b) restricted to residing within specified limits."

7. The term "designated war period" is defined in section 3 of the Act as:

"the period beginning on 7 December 1941 and ending at the end of 29 October 1945."

8. There is no dispute that all but the requirement in section 4(1)(d) of the Act is satisfied by the Applicant. The issue for the Tribunal to consider is therefore whether the Veteran was interned by Japanese military forces at any time during the period from 7 December 1941 to 29 October 1945.

Evidence for the Applicant

9. Statements by various members of the Veteran's family were before the Tribunal. The following is a brief summary of those statements.

10. The Applicant's statement is that the Veteran told her that he initially enlisted underage and later enlisted under the name George Brady with the 2/30 Battalion at Tamworth and landed in Singapore in late 1941. She said he spoke of going over the causeway between Malaya and Singapore and said that after Singapore fell he was made to line up in rows with other allied soldiers while the Japanese guards took their watches, etc while butting them with their rifles. She said the Veteran told her he thought he wouldn't last as a prisoner and with a few mates he obtained a rowing boat and rowed to an island near Singapore where they boarded a boat manned by Chinese, which was torpedoed by the Japanese and they ended up in the water for a couple of days. She said the Veteran told her that he and his mates were picked up by a Dutch ship and eventually landed in Perth.

11. Mr Stanley Price is the brother of the Veteran. He attached to his statement a copy of a postcard written by the Veteran to his Aunt in 1942 from Malaya and a copy of a photograph of the Veteran and some army friends at Padang in February 1942. Mr Price stated that the Veteran had told him that he and three or four others had commandeered a Chinese boat by killing the owner to get off Singapore Island after it had fallen and that he had escaped with a friend called "Scotty" Grey, who later became a close friend of the family although he and the Veteran later argued and ceased to be friends.

12. Mr Nicholas Price, the Veteran's grandson, said the Veteran told him he was in a small boat off one of the islands north of Australia and after a patrol boat began bombing them, the Veteran and the other occupants of the boat jumped overboard and began to swim for shore. Mr Price said the Veteran told him that two of the men in the boat broke their necks when they jumped into the water and the Veteran and one or two others were stranded in the water for a long time and the Veteran developed a very bad rash on his stomach. Mr Price said the Veteran told him that he was picked up out of the water by a Dutch ship that was originally heading for Darwin but then, believing Darwin had been invaded, headed for Perth.

13. Mr Chris Price, the Veteran's son, said his father told him about his time in Singapore before, during and after the surrender and said that the Veteran, with all other POWs, was forced to form "a guard of honour" for Japanese officials and had all their valuables removed by the guards who knocked to the ground anyone who resisted. He said his father escaped with others whilst on a work party, overpowering the guard and hiding in the dense undergrowth. He said they then stole a boat and got away from Singapore. He said by the time the Veteran was rescued out of the water by a Dutch ship, he was ill with malaria.

14. Ms Mary Williamson, the Veteran's daughter, said her father told her he had escaped from Changi by not returning after a work party, that he stole a boat and was hidden by a family for a short time and was rescued by a Dutch vessel after being stranded in the water for several days. She said her father told her that when the 2/30^th battalion were taken as prisoners of war they were made to stand outside a Red Cross hospital while Japanese soldiers entered the wards and bayoneted every second soldier in their beds. She said the Veteran told her that their screams haunted him every day of his life. She said he was very ill with malaria when he arrived in Freemantle.

15. Mr Gregory Price, the Veteran's son, said his father told him that when Singapore fell the Veteran and the other soldiers were paraded before the Japanese officials as prisoners of war and that allied soldiers outnumbered the Japanese guards by 5:1. He said his father told him that his father and several men were on a work party a long way from the camp when they overpowered the Japanese guard, hid and eventually stole a boat from a Chinese civilian. They then made their way out of Singapore Harbour, not knowing where they were headed and were finally rescued by a Dutch ship. He said his father often spoke of a man called "Scotty" who had escaped with him and was admitted with him to a Perth hospital.

16. Ms Heddy Price, the Veteran's daughter-in-law, said the Veteran told many stories about the war. She stated that he told a story about escaping from Changi in the early days of the fall of Singapore. She said he spoke of atrocities carried out by the Japanese army and his determination not to be a prisoner for long because of his concern that he would not survive. He said he escaped in a Chinese fishing boat that capsized, leaving him and a companion stranded in the water for several days until he was rescued by a passing hospital ship. He said the ship was then ordered not to pick up anyone else because the enemy was nearby.

17. Mr John Williamson, the Veteran's son-in-law, said in his statement that the Veteran told him that he had been taken prisoner by the Japanese after Singapore fell and that he escaped while on a work party, stole a boat and managed to leave the island. He said the Veteran told him he was stranded in the water for three days because ships were reluctant to stop for fear of being torpedoed. He said he was very ill when he was rescued.

18. In oral evidence to the Tribunal, Mr Williamson said he did not recall who the Veteran said he stole the boat from and that the Veteran did not mention a Chinese family helping him or mention the killing of a Chinese man.

19. Ms Elizabeth Price, the Veteran's daughter, said in her statement that her father had told her that he had been at Raffles Hotel when Singapore surrendered and spoke of the chaos at Singapore at that time. She said he told her that a Chinese family had helped him to escape from Singapore after it fell to the Japanese and that he had known the family because he had corresponded with the daughter of the family before the war and had contacted her when he first arrived in Singapore. According to Ms Price, the Veteran said he was stranded in the water for a long time before being rescued by the Zaandam and he was very fortunate because many others were left in the water because there were reports of Japanese submarines in the area.

20. In her oral evidence to the Tribunal, Ms Price said she would have been about 9 or 10 years old when her father first talked to her about his war experiences. She said that now she has read the official history of the war she realises that what she thought was a reference by her father to Raffles Hotel was in fact a reference to Raffles College. She also said that she believes the help given to her father by the Chinese family he knew was to get him a boat. She said she was not aware that from 1973 ex-prisoners of war could obtain "Gold Cards" from the Department of Veterans' Affairs and thought that her father may not have considered himself entitled because he had not actually been in Changi. She said her father was a member of his local RSL and in later years attended ANZAC marches.

21. Exhibit A10 is an obituary for the Veteran, published in the Gundawindi Argus in January 1995. Exhibit A9 is an Army Instruction dated October 1941 and concerns the duties to be performed and the precautions to be taken by prisoners of war. Exhibit A11 is a copy of a letter from Herbert Grey to the Department of Veterans' Affairs dated 6 May 1955. Among other things, the letter states that Mr Grey was posted, in 1941, to the Loyal Regiment in Malaya, arriving in Singapore in October 1941 and that he remained there until the fall of Singapore and escaped via Sumatra from there to Java and from there to Australia. Exhibit A13 is a Medical Case Sheet concerning the Veteran and relating to his admission to hospital on 30 December 1941 with sub-testian malaria. The case sheet notes that the Veteran was with the 2/30^th battalion, that until 4 January 1942 he remained febrile, began to improve, was prescribed "plasmoquinine 0.03 GM daily for 5 days" and on 13 January 1942 was discharged.

Evidence for the Respondent

22. Exhibit R1 is the report of Mr Brendan O'Keefe, historian dated 27 April 2002. The report is comprehensive and detailed and Mr O'Keefe states that the matters covered by the report are extremely complicated and his research was not assisted by major discrepancies in historical sources. The report contains a detailed chronology of dates, locations and activities relevant to the Applicant's claim. Mr O'Keefe writes that the details are drawn from the Veteran's B103 forms and other documentary sources as indicated. The Veteran's B103 forms are contained in the T-documents relevant to this application (Exhibit TD1). As the chronology forms the basis of Mr O'Keefe's report and conclusions, it is reproduced here for ease of reference:

"2. Chronology of Events

To assist in addressing the questions set out above and to help resolve the overall question of whether or not Mr Price was a POW, a summary is set out in chronological order below of dates, locations and activities relevant to the claim. These details are drawn from Mr Price's B.103 Forms and various other documentary sources. Where details are taken from sources other than the B.I 03s, their provenance is indicated in footnote references.

19 May 41 Mr Price enlists under the name George Raymond Brady at Paddington, Sydney, and is taken on the strength of 5 Training Battalion based at Tamworth.

17 Sep 41 He embarks on His Majesty's Transport JJ for service in Singapore and Malaya.

05 Oct 41 He disembarks at Singapore and is marched in to the AlF General Base Depot Malaya. The War Diary for this unit shows that it was based at Johore Bahru in Malaya, just across the causeway from Singapore.1

14 Oct 41 An entry in Mr Price's B.103 gives his location as Johore Bahru at this time.

21 Nov 41 He is appointed an Acting Corporal. The 'Changi Copy' of his B.103 gives his Location as Johore, which could mean either Johore state or the town of Johore Bahru .

30 Dec 41 He is admitted to 2/13 Australian General Hospital suffering from an injured back. This unit is based at Tampoi about eleven kilometres from Johore Bahru.2

13 Jan 42 He is admitted to 2/2 Convalescent Depot suffering from malaria. At this time, the unit is based at Batu Pahat on the west coast of Johore state.3

15 Jan 42 Japanese troops land on the west coast of Johore between Batu Pahat and Muar further north. As 2/2 Convalescent Depot is now virtually in the front line, it is compelled to withdraw initially to Johore Bahru and then, at an unspecified time later in the month, to Island Golf Club on Singapore.4

31 Jan 42 2/30 Battalion withdraws from southern Johore across the causeway to Singapore island. 5

10 Feb 42 An 'X' Battalion made up of spare men and reinforcements is formed on Singapore island and is assigned to defend an area to the northwest of Singapore town.6 The Changi Copy of Mr Price's B.103 refers to a report from 'X' Battalion that he was missing as of 15 February.

11 Feb 42 'X' Battalion is attacked and overwhelmed by the 18th Japanese Division, though it appears that some members of the unit managed to slip away. 7

14 Feb 42 Japanese troops advancing from the west towards Singapore town enter the Alexandra military hospital as they pursue some detached Indian troops who have fallen back into the hospital still firing their weapons. The Japanese bayonet a number of staff and patients and next morning execute another 150 they had herded into a bungalow at the hospital.8 There were at least some Australian soldiers in the hospital.9

15 Feb 42 The formal surrender of Singapore to Japanese forces occurs at 8.30 in the evening Singapore time. For the time being, the allied and Japanese forces remain in their respective areas, the Japanese not entering Singapore town. 10

16 Feb 42 Only Japanese picquets enter Singapore town on this day. Under Japanese orders, Australian troops begin concentrating in the morning in the Raffles College area on the northern outskirts of Singapore town until it is suspended following objections from Australian officers. 11

17 Feb 42 Australian and other POWs move to Changi by route march. Up until 12 March, when the POWs are enclosed behind a double apron of barbed wire, they are 'able to roam from the waterfront on Johore Strait to the sea beach on the east, and thence for several miles to the vicinity of Changi gaol...'12

22 Feb 42 The first work party leaves Changi. In the following days and weeks, work parties are sent to many parts of Singapore island to perform a variety of labouring tasks. 13

27 Feb 42 Just before midnight, the cargo vessel City of Manchester leaves the port of Tjilatjap [Cilacap] on the southern coast of Java to make its way to Australia. 14

28 Feb 42 In the early hours of the day, the City of Manchester is hit by a torpedo and shells fired by a Japanese submarine. The ship sinks and, according to one account, the survivors in a lifeboat are picked up by a US naval vessel and returned to Tjilatjap. Next day, they board the Zaandam at this port to be evacuated to Australia.15 According to another account, the survivors from the City of Manchester are rescued directly by the Zaandam (see below).

01 Mar 42 The Zaandam departs Tjilatjap bound for Fremantle.16 The ship is 'crammed with survivors from ships that had been sunk as they attempted to flee from Singapore and nearby ports and attain the safety of Australia or Ceylon. ' 17

02 Mar 42 A short distance out of Tjilatjap, according to one account, the Zaandam stops to pick up 43 survivors from the City of Manchester who are drifting in a lifeboat. 18 By a separate account, the Zaandam rescues seven people drifting in a lifeboat from a small Dutch coaster that had been sunk by the Japanese soon after it had left Tjilatjap. The seven comprise a Dutch woman and her child, two Javanese seamen and three AIF soldiers. They had been adrift for some days in the lifeboat and are badly sunburnt. The three AIF soldiers were part of a group of four who had escaped from 'Malaya' and made their way to Java, arriving at the port of Tandjong Priok on the northern side of the island some time before 20 February. The men had subsequently driven across Java to Tjilatjap where they had met the captain of the small Dutch coaster who told them he was about to make a run for Darwin. The captain invited the four men to come along and they took up his invitation. The vessel left Tjilatjap on 23 February. One of the four soldiers was lost when the vessel was attacked and sunk by the Japanese. 19 Further accounts of the rescue by the Zaandam of survivors from vessels sunk by the Japanese occur in the Dutch official histories of the war. In one of these accounts, the Zaandam on its way to Australia takes aboard 32 people drifting in a lifeboat. Twenty-nine of these people came from a Dutch ship and the other three from a Norwegian ship, both of which had been sunk by Japanese cruisers.20 More information is provided by the history of the Dutch merchant navy in the war. At midday on 27 February, the Dutch Admiral Schokking orders all ships at Tjilatjap which were capable of reaching Australia or Ceylon [Sri Lanka] to leave that day. One of these ships is the Dutch vessel Tomohon which departs on the evening of 27 February with 51 passengers aboard. In the early hours of 1 March (I think), the ship is torpedoed by the Japanese and later sinks. The passengers and crew from the Tomohon get away from the ship in three lifeboats. The lifeboats then come upon five survivors from a Norwegian vessel, the Prominent, which has also been sunk by the Japanese. These survivors, who may have been floating in the water, are split up among the three lifeboats. Though it is not entirely clear, it seems that the Norwegian ship was one of those that had left Tjilatjap on the evening of27 February. On the morning of 2 March, the Zaandam on its way to Australia spots a lifeboat in the distance. It is one of the lifeboats from the Tomohon and, while it is risky, the ship decides to stop and pick the survivors up. Twenty-eight men and two women are taken aboard the Zaandam from the lifeboat. (I am not sure whether the other survivors from the Tomohon and Prominent are rescued as well.) Among those rescued, it seems, are at least two and possibly all five of the survivors from the Prominent .21

6/7 Mar 42 The Zaandam arrives at Fremantle.22

07 Mar 42 Corporal Brady [Price] marches in to GDC, Claremont, W A.

12 Mar 42 He is admitted under escort to the Detention Barracks in Perth.

16 Mar 42 He is released from the Detention Barracks.

14 Jul 42 He is admitted to a convalescent unit suffering from malaria contracted outside Australia.

16 Sep 42 He declares his true name as George Raymond Price.

24 Nov 42 His rank of corporal is confirmed.

I War Diary of General Base Depot Malaya, A WM 52, item 1/12/22.

2 Allan S. Walker, Middle East and Far East, Canberra, Australian War Memorial [AWM], 1953, p. 495.

3 Walker, Middle East and Far East, pp. 495-6,505,509.

4 War Diary of 2/2 Convalescent Depot, A WM 52, item 11/4/2; Walker, Middle East and Far East, p. 505.

5 Lionel Wigmore, The Japanese Thrust, Canberra, AWM, 1957, pp. 292-3.

6 Wigmore, The Japanese Thrust, pp. 304,337,345.

7 Wigmore, The Japanese Thrust, pp. 347-8.

8 Wigmore, The Japanese Thrust, p. 374.

9 Hank Nelson, Prisoners of War: Australians under Nippon, Crows Nest, ABC Enterprises, 1985, p. 19.

10 Wigmore, The Japanese Thrust, p. 379; 'Outpost', Singapore Nightmare: A Story of the Evacuation and an Escape to Australia, London, John Crowther, 1942, p. 21.

11 Wigmore, The Japanese Thrust, p. 382; A.J. Sweeting, 'Prisoners of the Japanese' in Wigmore, The Japanese Thrust, p. 511.

12 Sweeting in Wigmore, The Japanese Thrust, p. 514.

13 Sweeting in Wigmore, The Japanese Thrust, p. 519.

14 Alex Marcus, "DEMS? What's DEMS? " The story of the men of the Royal Australian Navy who manned defensively equipped merchant ships during World War ll, Brisbane, Boolarong Publications, 1986, p. 115

15. 1 Marcus, "DEMS? What's DEMS?", pp. 115-6.

16 G. Hermon Gill, Royal Australian Navy 1939-1942, Canberra, AWM, 1957, p. 627.

17 Marcus, "DEMS? What'sDEMS?",p.116.

18 Joseph Kennedy, When Singapore Fell: Evacuations and Escapes, 1941-42, Basingstoke, Macmillan, 1989, pp. 29,44.

19 Marcus, "DEMS? What'sDEMS?",pp.115-6.

20 Dr L. De long, Het Koninkrijk der Nederlanden in de Tweede Wereldoorlog, vol. Ila, Nederlands-Indie I, Leiden, Martinus Nijhoff, 1984, p. 956.

21 Geschiedenis van de Nederlandse Koopvaardij in de Tweede Wereldoorlog, vol. I, pp. 721-5.

22 Kennedy, When Singapore Fell, p. 44."

23. Mr O'Keefe concluded that there are four possibilities in relation to the Veteran's escape from Singapore. They are that he escaped:

a) from Changi after the institution of work parties on 22 February 1942;

b) directly from Changi;

c) after the surrender and without moving to Changi on 17 February 1942; and

d) before the official surrender at 8.30 pm on 15 February 1942.

24. As to the first possibility, Mr O'Keefe noted that the first work party set out from Changi on 22 February 1942 and that the Dutch ship Tomohon and the Norwegian vessel Prominent both departed Tjilatjap on the Southern coast of Java on the evening of 27 February 1942. The significance of this, according to Mr O'Keefe, is that, on the basis of Dutch sources, it was only survivors from these two ships that were picked up by the Zaandam on its way to Australia and so the Veteran must have managed to get to Tjilitjap by 27 February 1942, only five days after the first work party was sent out from Changi. Mr O'Keefe explained in his report that of all documented escape routes across Sumatra, terminating at Padang, the best organised was able to move escapers from one coast to the other "inside a week". He considered this was the most likely route to have been taken by the Veteran because it was safer to travel through Sumatra and then by ship to Java, because Herbert Grey's letter describes this as the route taken by him and he was almost certainly the Veteran's travelling companion and because the photograph annexed to Stanley Price's statement has noted on its back "George and his army friends at Padang in February 1942." Mr O'Keefe states that, at that time the reference can only be to Padang on the western side of Sumatra and is a very strong indication that the Veteran, in his escape from Singapore, took one of the three escape routes that ran across Sumatra to Padang.

25. Mr O'Keefe also said in his report that there were three AIF soldiers who were among a group of seven people picked up from a lifeboat by the Zaandam on its way to Australia but that these could not have included the Veteran if he had escaped from a work party because the three would have had to have reached the northern coast of Java by 20 February 1942 and the first work party was sent out on 22 February 1942. Mr O'Keefe said this also casts doubt on the possibility the Veteran reaching Java in so short a time if he had escaped directly from Changi as he could not have got away from Changi until the night of 17 to 18 February 1942 at the latest.

26. As to the possibility of the Veteran having escaped directly from Changi, Mr O'Keefe referred to a number of sources that make no reference to any Australians having successfully escaped from Changi. He also referred to a publication by Mr Hank Nelson entitled Prisoners of War: Australians Under Nippon (Crows Nest, ABC Enterprises, 1985) which states that out of nearly 15,000 Australians who marched into Changi in February 1942 none escaped from Singapore and reached home. Mr O'Keefe stated in his report that he spoke to Mr Nelson at the Australian National University about this statement and that he confirmed that as far as he knew it remained true.

27. Mr O'Keefe also said that if the Veteran had escaped from Changi or from a work party, it is difficult to see how he could have reached the Chinese family who it is said helped him to escape. He said it is probable that the Chinese family, as a literate group lived in Singapore town rather than in one of the villages in other parts of the island and this would be even more likely if the Veteran, in accordance with some of his family's statements, escaped the island by boat by way of Singapore Harbour and made his way to an island near Singapore. Mr O'Keefe said that if the Chinese family lived in Singapore town, the Veteran would have had to have made his way to the town from Changi, or from a work party, approximately 25 kilometres away.

28. In relation to the possibility that the Veteran escaped after surrender but without going to Changi, Mr O'Keefe said this would mean that he would have escaped from Singapore town and this would sit better with reports that he made contact with the Chinese family he knew and that he received help from them. He also said that in this scenario escape in a small boat is more likely because there are reports of soldiers escaping in small vessels from the Singapore Harbour area on 16 and 17 February 1942 and of a great many small craft being used for escape.

29. Finally, as to the possibility of the Veteran escaping from Singapore before the surrender, Mr O'Keefe said in his report that this sits well with the Veteran having been assisted by the Chinese family but not so well with him having escaped by small boat out of Singapore Harbour because such a passage would have been more likely after Singapore fell. Mr O'Keefe also noted that the Veteran was placed in detention on his return to Australia but that he was released from detention just four days later and no charge was recorded. Mr O'Keefe discussed the fine line, in the circumstances of the impending fall of Singapore, between desertion and escape.

30. Mr O'Keefe reached the following conclusion after discussing the possibility of the Veteran escaping from Japanese custody after the surrender and before the move to Changi:

"The alternative is that Mr Price managed to evade capture after the surrender, perhaps taking refuge with the Chinese family he knew before he escaped. If this were the case, he would not then have ever been in the hands of the Japanese (even though Australian forces as a whole on the island had surrendered). On current evidence, this appears to me to be the most likely interpretation. The next most likely possibility, it seems to me, is that he escaped some time between the overrunning of 'X' Battalion on 11 February and the surrender on the evening of 15 February. Rather less likely is the possibility that he escaped from Japanese custody and got away some time between the surrender and the move to Changi. As for the other two possibilities - an escape from a work party sent out from Changi or from Changi itself - both seem to me to be highly improbable."

31. Mr O'Keefe's oral evidence to the Tribunal was, in addition to confirmation of the contents of his report, that there is a reference in the Veteran's service records to the "X Battalion" and the only available conclusion is that he was a member of that battalion. He said the X Battalion was a hastily thrown together unit of about 300 men who were unattached or separated from their units or who were recovering from illness and they were sent off to try and stem the Japanese advance. Mr O'Keefe said they were overrun on the night of 11 February 1942 and the unit ceased to exist after that.

32. Mr O'Keefe said, in answer to the question of whether, in his opinion, the Veteran was ever a prisoner of war even for a brief period, that the most likely scenario was that the Veteran got away shortly after the surrender and the question then arises as to whether he was ever in Japanese hands. He said that, while there are accounts of approximately 300 people escaping, there are no records of any Australians actually being in Japanese hands and then getting away. He said the typical story is that they hid out somewhere around the waterfront looking for boats for their escape.

33. He also said that all Dutch ships were ordered to leave the port of Tjiltjap on the southern coast of Java on 27 February 1942. In relation to Exhibit R2, Medical Examination for Reclassification, which refers to malignant malaria and notes evacuation and reaching Perth by April 1942, Mr O'Keefe said that on the face of the document it looked as though the Veteran may have been medically evacuated from Singapore after the disintegration of the X Battalion and may have received official permission to leave. He said he was only aware of official evacuations taking place before the surrender. He also said that evacuation was not inconsistent with the Veteran's admission to a detention centre on his return to Australia because there was a great deal of suspicion at the time that many Australians had deserted at the fall of Singapore. He noted that the Veteran had been discharged from detention very quickly and said that indicated that he either left Singapore with permission or that as his unit had disintegrated he was free to leave.

34. In cross-examination, Mr O'Keefe said that, with the exception of Exhibit R2, there had been nothing in the research he had done to suggest, and no record of, the Veteran having been evacuated from Singapore. He also agreed that there is no record of the Zaandam having called at Singapore and collected sick and wounded there or of evacuating patients from a convalescent depot or of the Zaandam calling at other ports. In re-examination Mr O'Keefe said that if evacuation took place then it would not be unusual for the journey from Singapore to Java to have taken two weeks.

35. Exhibit R2, referred to above, is a form entitled Medical Examination for Reclassification, dated 13 August 1943, some 18 months after the Veteran's return to Australia. Under the heading "History and clinical examination" it says, among other things: "Enlisted underage, in name of BRADY - 2/30^th Btn. Malignant malaria in Malaya - Blood transfusions: Evacuated reached Perth Apr. 42 - general health gradually improved..".

36. Document T1 - I is the "Changi copy" of the Veteran's service records. Those records say he was reported missing on 15 February 1942, having been transferred to 2 Convalescent Depot on 13 January 1942.

Submissions

37. Mr Latimore, for the Applicant, noted that the definition of "interned" in the Act makes no reference to a period of time and so the length of time of internment of the Veteran is irrelevant. Mr Latimore submitted there are three possible ways in which the Veteran was interned:

a) by capture by the Japanese followed by escape;

b) by being confined to a place at the time of surrender;

c) by becoming a prisoner of war at the moment of the unconditional surrender.

38. As to the first of these contentions, Mr Latimore referred the Tribunal to the consistent accounts in the statements of the Veteran's family of the Veteran having been captured and of having escaped by sea. He submitted that the variations in the statements contribute to their plausibility and can be explained by the statements being based on stories heard by family members many years ago. He also pointed to the Army records' support of aspects of the statements, for example the Veteran having been stationed in Singapore and having arrived home in a Dutch ship. In Mr Latimore's submission, the contention is also supported by Exhibit A12 (Mr Grey's letter), Exhibit A10 (the Veteran's obituary) and by a reference in Mr O'Keefe's report to a report in the Orange newspaper stating that "Mrs M Price, of 43 Sampson Street, is overjoyed with the news that her grandson, Corporal George Price has escaped from Singapore". Mr Latimore also referred the Tribunal to the definition of "escaped" in the Macquarie Dictionary which, he said, requires that a person must first have been confined.

39. As to Mr Latimore's second contention, he referred the Tribunal to the Terms of the Singapore Surrender as reproduced in Lionel Wigmore, The Japanese Thrust (Canberra, War Memorial, reprinted 1968, p.379):

"1. The British Army shall effect complete cessation of hostilities not later than 10 pm on February 15 (Nippon time).

2. British troops shall disarm themselves in their present positions no later than 11 pm.

3. The Imperial Army will permit not more than 1,000 armed constables in order to maintain peace and order in Singapore. The Imperial Army shall fire upon the British troops immediately in the event of the slightest infringement upon any of the terms."

40. Mr Latimore submitted that these terms amount to an unconditional surrender and that any order in accordance with term number two above, although such an order would have been given to the Veteran by an Australian officer, would have amounted to an order from a Japanese officer. This, in Mr Latimore's submission, amounts to internment, being an order confining the Veteran to a place in accordance with the definition of "interned" in section 3 of the Act.

41. As to Mr Latimore's third contention, that the Veteran became a prisoner of war at the moment of the unconditional surrender, he submitted that, at that time, the Veteran was either a combatant or a prisoner of war, there being no middle ground.

42. Mr Latimore referred the Tribunal to Exhibit A9, the Army Instruction dated October 1941 concerning the duties to be performed and the precautions to be taken by prisoners of war and submitted that that instruction contemplates, in its discussion of early escape, soldiers having become prisoners of war before entering a camp. Mr Latimore also referred the Tribunal to the article, Legal Aspects of the Departure of Major-General Gordon Bennett from Singapore by Thomas Fry (Sydney, Angus and Robertson, 1950) which discusses, among other things, the nature of unconditional surrender and states, on page 9:

"The Scuttled U-Boats case (Law Reports of Trials of War Criminals, Vol 1, p. 55) establishes that, in interpreting instruments of surrender, the moment hostilities cease is to be regarded as the moment of surrender. That case also establishes that at that moment personnel and material pass under the victor's control, without his first having to put personnel behind barbed wires or material in the physical custody of his troops. Even in the absence of an express provision, customary law operates to vest automatically in the victor control of all material and personnel of the surrendering forces as from that moment, except to the extent the 'capitulation' may expressly grant any special privileges or advantages to the vanquished."

43. Later, on page 11, the article says:

"The essential characteristics of capture and surrender are the total cessation of effective resistance (itself evidenced by the cessation of hostilities by an individual or a group), and the compliance with enemy instructions (which effectively destroys the former combatant's liberty to continue hostilities against his enemy)."

44. Mr Latimore submitted that, given Mr O'Keefe's conclusion that the most likely case is that the Veteran escaped after Singapore fell and before capture, this means that the Veteran, after surrender, was in the control of the Japanese and was therefore a prisoner of war and consequently escaped as a prisoner of war.

45. Mr Latimore also referred the Tribunal to the provisions of section 119(1)(h) of the Veterans' Entitlements Act 1986 which provides:

"119 Commission not bound by technicalities

(1) In considering, hearing or determining, and in making a decision in relation to:

(a) a claim or application...

...

the Commission:

(h) without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:

(i) the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and

(ii) the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities.

..."

46. Mr Latimore submitted that the history of the fall of Singapore lends itself to the application of section 119 of the Veterans' Entitlements Act. He pointed to the conclusions of Mr O'Keefe that were based on the absence of documentation of, for example, a journey across Sumatra taking less than six days or of an escape by an Australian from Changi. He submitted that, pursuant to section 119(1)(h), the absence of such documentation, does not stand in the way of the conclusion that the Veteran did escape from Changi or that he did complete the journey in less than six days.

47. Mr Marsh, for the Respondent, noted that the Veteran, in his dealings with the Department of Veterans' Affairs over the years, had not mentioned his escape from Singapore nor applied for a Gold Card which, from 1973 was available to any former prisoner of war. Nor had the Applicant based her claim for widow's pension on the Veteran having been a prisoner of war but rather on the Veteran's service related smoking habit. He also noted that Exhibit R2, which would have been completed on the basis of the Veteran's instructions, makes no mention of escape but rather refers to evacuation due to malignant malaria.

48. Mr Marsh drew the Tribunal's attention to the various inconsistencies between the statements of the Veteran's family and the inconsistency of those statements with Mr O'Keefe's report and submitted that these inconsistencies must prevent the Tribunal from being reasonably satisfied as to any of the versions of events set out in the statements. Mr Marsh also submitted that the statements are merely the hearsay evidence of immediate family members and are uncorroborated and to some extent self serving.

49. Mr Marsh submitted that the letter from Mr Herbert Grey (Exhibit A12) is at best consistent with the Veteran having escaped from Singapore to Java via Sumatra in February 1942 and conceded this to be so. Mr Marsh noted that Mr Grey's letter says nothing about internment or capture by the Japanese and significantly he claims to have been in Singapore "until" surrender and not after it. Mr Marsh submitted that the evidence of Mr O'Keefe establishes that the Veteran escaped from Singapore at some undetermined time in February 1942, thereby avoiding capture and internment by the enemy. He submitted there is no corroborative evidence that the Veteran was ever interned.

50. Mr Marsh urged on the Tribunal the conclusion that the Veteran made his escape from Singapore prior to 15 February 1942 and referred the Tribunal to the Veteran's admission to the Detention Barracks on his arrival in Perth, the time and mode of his arrival and his advice, as noted in Exhibit R2, that he was evacuated from Singapore with malignant malaria. On the last point, Mr Marsh submitted that the Veteran having been evacuated with malignant malaria was entirely consistent with him having been discharged as "very well" on 13 January 1942 to a Convalescent Depot (Exhibit A13) because malaria often entails sudden and frequent relapses and reinfection and it is possible that he was admitted for required further treatment prior to 15 February 1942.

51. As to the operation of section 119(1)(h), Mr Marsh referred the Tribunal to the decision of the Federal Court in Mason v Repatriation Commission [2000] FCA 1409.

52. As to Mr Latimore's submission that, upon surrender, the Veteran became a prisoner of war, Mr Marsh drew the Tribunal's attention to the contrary view of Justice Ligertwood, the commissioner who inquired into the actions of General Bennett and who concluded, according to Mr Marsh, that General Bennet, at the time of leaving Singapore was in the position of a soldier whose commanding officer had agreed to surrender him and to submit him to directions which would make him, at some time in the future, a prisoner of war.

53. Mr Marsh submitted that the views of Justice Ligertwood and Mr Fry belong to an academic debate and are not helpful in determining the correct interpretation of the term "interned" and referred the Tribunal to section 15AA of the Acts Interpretation Act 1901 which provides:

"15AA Regard to be had to purpose or object of Act

(1) In the interpretation of a provision of an Act, a construction that will promote the purpose or object underlying the Act (whether that purpose is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object."

54. He submitted that the purpose of the legislation is to provide special recognition to former prisoners of war and cited a legislative history of similar preferential treatment to former prisoners of war. He referred to the Second Reading Speech for the Act and the Minister's reference to prisoners of the Japanese having suffered "the most horrific conditions imaginable", to "starvation and brutal treatment", to their being "forced into slave labour" and to their "unique ordeal". He also submitted that, if the Parliament had intended that all members of the 8^th Division in Singapore on 15 February 1942 were intended to be covered by the scheme of the Act then it could easily have done so by means of a simple deeming provision.

55. Mr Marsh also submitted that, even on the most generous view of the evidence, the Veteran could not have been interned for more than a few days and that, given the generosity of the payment provided for by the Act ($25,000), a de minimus approach should be adopted. In this respect Mr Marsh referred the Tribunal to the decision of the Federal Court in Repatriation Commission v Kohn (1989) 87 ALR 511.

56. In reply to Mr Marsh's submissions, Mr Latimore submitted that the Veteran had been restricted to residing within specified limits, for a period of time, by the implementation of the Japanese order that he remain in his position.

57. Mr Latimore referred the Tribunal to the provisions of section 15AB of the Acts Interpretation Act 1901, which concerns the use of extrinsic material in the interpretation of a provision of an Act and submitted that there is no reason for the Tribunal to look to extrinsic material to determine the ordinary meaning of the word "interned".

58. Mr Latimore submitted that if the Parliament had intended to limit the payment of compensation to those who had suffered years of deprivation in a prisoner of war camp, it could have defined the word "interned" in a narrower way and with a specific minimum time for the period of internment. He noted the broader definition of "interned" in the Act and submitted that the Act is beneficial legislation and should be interpreted in accordance with the statement of the Full Federal Court in Re Repatriation Commission v Keeley, (2000) 60 ALD 401 at p 415, that:

"With regard to beneficial legislation...it may be assumed that a construction of substantive provisions least likely to work or cause unfairness in result is to be preferred."

59. Mr Latimore submitted that it was quite reasonable for the Veteran not to have sought to avail himself of the various benefits available to former prisoners of war given that he had not placed himself in the same category as survivors of Changi and the Burma Railway. He submitted that whilst the Veteran underwent hardships in escaping, he may have felt it inappropriate to place himself in the same category as others who had suffered deprivation for two years or more.

60. Mr Latimore also submitted that the use of the words "until the fall of Singapore" do not exclude the time of the fall of Singapore.

Consideration

61. On the basis of the statements by members of the Veteran's family, Mr Grey's letter and Mr O'Keefe's report, the Tribunal is satisfied that the Veteran left Singapore, proceeded across Sumatra and ultimately boarded the Zaandam and arrived in Freemantle on 6 or 7 March 1942.

62. The report of Mr O'Keefe collates the statements made by the Veteran's family, canvasses available historical information and documented events and presents a range of alternative possibilities for the movements of the Veteran shortly before and shortly after the surrender of Singapore on the evening of 15 February 1942. The Tribunal accepts Mr O'Keefe's evidence that it is very unlikely that the Veteran escaped from Changi, either directly, or from a work party. Particularly persuasive in this respect are the absence of any record of any Australian having escaped from Changi or of any crossing of Sumatra in less than six days.

63. It is only the statements of Ms Heddy Price and Ms Mary Williamson that say the Veteran was in Changi. Others, including Mr Chris Price, Mr Gregory Price and Mr Williamson, said that he had escaped from a work party. Ms Elizabeth Price's evidence was that the Veteran had not been at Changi while other family members are silent on the matter. In view of the historical and practical inconsistencies of this version of events, the Tribunal cannot be satisfied that the Veteran escaped from Changi or from a Changi work party.

64. The Tribunal considers that it is unlikely that the Veteran was evacuated from Singapore, notwithstanding the entry in Exhibit R2 which, the Tribunal notes, contained some other errors. According to Mr O'Keefe, there is no record of the Zaandam having called at Singapore and collected sick or wounded or evacuated patients from a convalescent depot. The Tribunal is therefore not satisfied that the Veteran was evacuated from Singapore.

65. The Tribunal accepts Mr O'Keefe's evidence that it is most likely that the Veteran escaped after surrender and before capture by Japanese forces. The Tribunal notes Mr O'Keefe's evidence that this version of events is more consistent with other known contemporaneous events and conditions, such as reports of soldiers escaping in small vessels from Singapore Harbour, and that there is no record of any Australians ever having been in Japanese hands and then getting away.

66. The Tribunal notes that the absence of such records may be due to destruction, the passage of time, the chaos of wartime and other factors and that such matters should, pursuant to section 119 of the Veterans' Entitlements Act, be taken into account by the Tribunal. However, in the absence of any other, uncontroverted evidence to establish a fact, section 119 does not serve to ground a finding of that fact.

67. The Tribunal notes that some of the statements of the family of the Veteran speak of the Veteran having experienced having his, and his fellow soldiers', valuables taken by Japanese soldiers and of having been made to "line up" by Japanese soldiers. There is also the claim that the Veteran was made to line up outside a Red Cross hospital while Japanese soldiers bayoneted the patients inside. The Tribunal notes the evidence of Mr O'Keefe to the effect that such an incident does not feature in the history of the 2/30 Battalion and the only recorded incident remotely resembling it took place on 14 February 1942 at Alexandra military hospital before the surrender. As to the theft of watches, Mr O'Keefe's evidence was that there were references to Japanese soldiers appropriating watches from Australian servicemen in an ad hoc manner in the period immediately after the surrender. But again, no reports were found by Mr O'Keefe of any Australians escaping after they were in the hands of the Japanese and before the move to Changi. Given that the Veteran is said to have escaped in the company of some other soldiers, such an escape would have to have been achieved by all of those soldiers. This would make report of the escape, had it taken place, more likely. These matters prevent the Tribunal from being satisfied that the Veteran did so escape or that he experienced the "line up" and theft of valuables referred to in some of the statements.

68. Having concluded that it is most likely that the Veteran escaped following the surrender of Singapore but before capture by the Japanese, the issue for the Tribunal to consider now is whether that constitutes being "interned" within the meaning of the Act. Mr Latimore's submission was that at the moment of surrender the Veteran was "confined to a place" and/or that he became a prisoner of war at that moment. As to the first part of the submission, there was, as a term of the surrender, an order that "all troops remain in positions occupied at the time of cessation of hostilities pending further orders" (Wigmore, p.379). The Tribunal notes that the march to Changi followed on 17 February 1942 and so, if this order constituted being "confined to a place" in accordance with the definition of "interned"" in section 3 of the Act, it did so, in relation to the Veteran, at most until the afternoon of 17 February 1942 (Wigmore, p.382).

69. The second aspect of Mr Latimore's submission was that unconditional surrender automatically renders a soldier a prisoner of war. His submission, however, made no reference to the terms of section 3 of the Act or to the word "interned". It is the word, and the meaning of, "interned" upon

which the benefit turns.

70. As to the meaning of the word "interned", it is convenient to note again its definition in section 3 of the Act:

"a) confined in a camp, building, prison or other place (including a vehicle); or

b) restricted to residing within specified limits."

71. The point was made by Mr Latimore that the legislation imposes no minimum time for which a person must have been interned in order to qualify to receive the benefit. However, the Tribunal is mindful of the evidence of the Veteran's daughter, Ms Elizabeth Price, to the effect that her father did not claim any of the benefits available to prisoners of war prior to his death because he did not consider himself to be on the same footing as those who had been captured and taken prisoner by the Japanese. On first sight, and taking the ordinary meaning of the words, the provisions of the Act lead the Tribunal to a similar view, that is, that the Veteran was not on the same footing as those who were captured and taken prisoner by the Japanese.

72. Section 15AB(1) of the Acts Interpretation Act 1901 provides:

"Use of extrinsic material in the interpretation of an Act

(1) Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:

(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or

(b) to determine the meaning of the provision when:

(i) the provision is ambiguous or obscure; or

(ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable".

73. The provisions of sections 3 and 4 of the Act are neither ambiguous nor obscure and require no reference to the material contemplated by section 15AB(1) of the Acts Interpretation Act 1901 on that basis. Nor does the ordinary meaning of the text of the provision lead to a result that is manifestly absurd or unreasonable. It is beyond dispute that many thousands of Australian men and women were held captive by Japanese forces during World War II and few would argue that the compensation provided for by the Act is not appropriate recognition of their suffering and their service.

74. However, section 15AB(1)(a) of the Acts Interpretation Act allows for consideration to be given to extrinsic material "to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act". Given that the meaning of the word "interned" is at issue in this matter, it is appropriate that the Tribunal consider the Second Reading speech to the Act, taking into account the purpose or object of the legislation. In this regard, the Tribunal is also mindful of the provisions of section 15AA of the Acts Interpretation Act which provides:

"Regard to be had to purpose or object of Act

15AA. (1) In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object."

75. Before examining the Minister's Second Reading speech, the Tribunal also had regard to the decision of the Federal Court in Repatriation Commission v Kohn (1989) 87 ALR 511, in which the Court looked to the policy of the legislation to determine the meaning of the term "continuous full-time service outside Australia" and adopted a purposive approach to that question, concluding that Mr Kohn had not, by spending several hours outside Australian territorial waters on a voyage between Townsville and Cairns, rendered operational service by virtue of having "continuous full-time service outside Australia". At pp 524 to 525 Hill J said:

"The legislative policy behind the Veterans' Entitlements Act is that a person who has rendered operational service in the sense defined in s 6(1) should more readily be able to obtain a pension than a person who has not rendered such service. It was the intention of the legislature that it was only members of the armed forces who, in truth, were on service outside Australia during World War 2 who should receive this preferential treatment as to pensions. It cannot be conceived that Parliament intended that veterans who were at all times stationed in Australia but who travelled from one place in Australia to another and thereby were for short periods of time outside Australia, should be treated in the same way as veterans who fought in a theatre of war, sailors who served continuously on a ship engaged in or likely to become engaged in combat or members of the Air Force engaged in flying missions outside Australia...

If the essential character of the service considered overall can be seen to be continuous full-time service outside Australia, then for the purpose of the legislation it is to be treated as operational service. If, on the other hand, looked at overall, notwithstanding that at a discrete moment of time the service of the member was outside Australia, the service is properly as a matter of ordinary English language to be seen as having an essential character of continuous full-time service within Australia, then for the purposes of the legislation it will not be treated as "operational service.

It is obvious that there can be questions of degree involved."

76. Mr Latimore sought to distinguish the Federal Court's decision on the basis that it was the purpose, rather than the duration of Mr Kohn's voyage outside Australian waters that gave rise to the Repatriation Commission's success in Kohn (supra). However, Hill J was concerned with the "essential character" of Mr Kohn's service. Similarly, in this application, the Tribunal is concerned with the "essential character" of the Veteran's time in Singapore after the surrender.

77. The purpose and object of the Act is succinctly set out in the Minister's Second Reading speech:

"This bill, the Compensation (Japanese Internment) Bill 2001, will help give effect to this government's commitment in the 2001-02 federal budget to recognise the hardship and suffering endured by those Australians who were held captive by Japan during World War II.

Following the fall of Singapore in 1942 and during the war in the Pacific, more than 22,000 Australian men and women were taken prisoner by the Japanese.

By war's end, more than 8,000 Australian POWs - 36 percent of those taken prisoner by the Japanese - had died.

For up to 3 & half years, Australian service personnel and civilians suffered in the most horrific conditions imaginable.

They endured starvation and brutal treatment at the hands of their captors.

They were forced into slave labour on projects like the Burma-Thailand railway.

They were sent on forced marches, such as the notorious death march from Sandakan to Ranau, during which more than 2,000 Australian and Allied prisoners of war died.

In recognition of their unique ordeal, the government will make a one-off cash payment of $25,000 to all living Australian prisoners of war and civilian detainees and internees who were held by Japan during World War II."

78. The speech refers to being "held" or "held captive" by the Japanese. It refers also to "horrific conditions", "starvation" "brutal treatment" and "slave labour". These are not words that properly attach to a status (as a prisoner of war) that may arise automatically by virtue of the operation of international or military law or to a relatively fleeting or "discrete moment of time" (Kohn (supra)). It refers to ordeals at the hands of captors. The essential character of the Veteran's time in Singapore after its fall is not one of being confined or restricted or being held captive.

79. The Tribunal appreciates the danger and suffering involved in the Veteran's escape from Singapore. The risk and courage involved in such a course is extraordinary. However, the benefit conferred by the Act is confined to those who were "interned". It does not extend to those who escaped, albeit bravely, but were not interned.

80. For the reasons set out above, the Tribunal concludes that the Veteran was not interned by Japanese military forces within the meaning of sections 3 and 4 of the Act.

Decision

81. The decision under review is affirmed.

I certify that the 81 preceding paragraphs are a true copy of the reasons for the decision herein of MS N BELL, Member

Signed: H Sim .....................................................................................

Associate

Dates of Hearing 1 August 2002

Date of Decision 20 September 2002

Advocate for the Applicant Tony Latimore

Advocate for the Respondent Jim Marsh