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[2002] AATA 873
respondent. The Tribunal affirms the decision under review, dismissing the Applicant's claim for compensation because domicile in New Guinea did not satisfy the s 4(2)(c) requirement of being domiciled in...
The Applicant, born in Rabaul and interned in 1943-44, sought compensation under the Compensation (Japanese Internment) Act 2001. The Tribunal held she was a minor and took her father's domicile, which was treated as New Guinea. Relying on the Acts Interpretation Act and authorities about mandated territories, the Tribunal concluded New Guinea was not part of Australia for the statute's domicile requirement. Therefore the Applicant did not meet s 4(2)(c) and the Commission's refusal was affirmed (paragraphs 4, 9-15).
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1,785 words · generated 27/07/2026
Mrs Marietta Leung, born in Rabaul, New Guinea on 9 September 1927, sought a statutory compensation payment under the Compensation (Japanese Internment) Act 2001 for civilian internees. The Repatriation Commission refused her claim on the ground she was not "domiciled in Australia immediately before the commencement of that internment" as required by s 4(2)(c) of the Act. The Administrative Appeals Tribunal (Member Ms N Bell) heard the application for review. The central factual matrix that mattered was that Mrs Leung was a minor at the time of internment (interned in New Ireland 1943–44), and her father had been born in China and had not resided in Australia prior to World War II (paragraphs 3, 9). The Tribunal proceeded on the basis, uncontroversially for these purposes, that the father's domicile at the relevant time could be taken as New Guinea (paragraph 9).
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The Tribunal had to decide whether domicile in New Guinea in 1943 equated to domicile in Australia for s 4(2)(c). The Tribunal applied settled rules about the domicile of minors, the statutory definition of "Australia" in the Acts Interpretation Act 1901 s 17, and authorities concerning the legal status of mandated territories (including the New Guinea Act 1920 and High Court authority discussed in Wong Man On) and concluded that it did not. The Tribunal therefore affirmed the Commission's decision to refuse compensation (paragraphs 4, 9–16).
The Tribunal's reasoning rests on three linked legal propositions:
The domicile of a minor is derived from the father's domicile. The Tribunal applied the common law rule: because the Applicant was a minor at the time of internment she took her father's domicile (paragraph 9).
The geographic meaning of "Australia" in Commonwealth statutes is controlled by the Acts Interpretation Act 1901 s 17. That provision expressly defines "Australia or the Commonwealth" to include, in a geographic sense, Christmas Island and the Cocos (Keeling) Islands only, and to exclude other external territories unless a contrary intention appears (paragraph 13). That interpretive starting point constrained the Tribunal's construction of s 4(2)(c).
The status of New Guinea as a League of Nations mandated territory did not render it part of the dominions of the mandatory. The Tribunal reviewed the New Guinea Act 1920 (s 4) and accepted the reasoning in Deputy President Purvis' decision in Re Chan, which in turn relied on international law commentary (Oppenheim) and High Court authority (Wong Man On as discussing Frost v Stevenson). Those authorities establish that mandated territories were administered under mandates in a trustee-like capacity for the League; the mandate did not operate as a cession of territory to the mandatory and did not confer the mandatory's nationality or render the territory part of the mandatory's dominions (paragraphs 10–14). Applying those principles, the Tribunal concluded domicile in New Guinea in 1943 did not equate to domicile in Australia for s 4(2)(c) (paragraphs 14–15).
Because the Applicant (as a minor) derived domicile from her father, and the father's domicile was not in a place that the Tribunal could treat as 'Australia' for statutory purposes, the domicile requirement was not satisfied and the claim failed (paragraphs 9, 15).
Before this decision (and as canvassed in Chan and the authorities cited within that decision), the law recognised three relevant strands:
This Tribunal decision (Leung) applies those principles to the specific statutory scheme created by the Compensation (Japanese Internment) Act 2001. The immediate effect is narrow and statutory: domiciles established in New Guinea during the mandate period do not satisfy the Act's requirement of being domiciled in Australia immediately before internment. The decision follows and adopts the reasoning in Re Chan; it therefore reinforces the line that the mandated status of New Guinea is insufficient to establish that persons domiciled there were domiciled in the Commonwealth for the purpose of the entitlement in s 4(2)(c) (paragraphs 14–15).
The decision does not alter broad principles of domicile or international law about mandates. It applies them in the statutory context and confirms that, unless the Compensation Act is read to have a contrary intention (and the Tribunal accepted there was not such a contrary intention, citing Chan's review of Explanatory Memorandum and Second Reading Speech), New Guinea domicile does not count (paragraph 14).
Statutory test (paragraph 4):
Domicile of minors (paragraph 9):
Interpretation Act definition (paragraph 13):
Mandate/territory status (paragraphs 10 and 14):
Conclusion (paragraph 15):
This decision will be directly engaged where:
If the statutory language is the same or substantially similar to s 4(2)(c) and the relevant historical domicile is in a mandated territory, the Tribunal's reasoning in Leung (and Chan) will be directly persuasive and likely determinative.
Within this decision, the Tribunal expressly follows and adopts the reasoning of Deputy President Purvis in Re Chan [2002] AATA 742 (paragraphs 14–15). Leung therefore aligns with Chan and with the High Court authorities identified in those reasons (Wong Man On, Frost v Stevenson), preserving the established view that a mandate did not operate as a territorial cession to the mandatory for the purposes of nationality and related legal incidents (paragraph 14). Leung is therefore consistent with the earlier High Court pronouncements discussed in Wong Man On, and reaffirms the application of s 17 of the Acts Interpretation Act as a default interpretive rule when construing Commonwealth legislation.
Practitioners should note that the decision is administrative/tribunal level and adopts established High Court authority; its persuasive force will be strongest in similar administrative and tribunal settings, and may be cited in future statutory interpretation questions involving historical domiciles and external territories.
Legislative intent and contrary intention: The Tribunal accepted the legislative materials as supporting an intent to restrict compensation to persons who are currently Australians and who were domiciled in Australia as defined by the Interpretation Act (paragraph 14, citing Chan). If Parliament had expressed a clearer contrary intention to include mandated territories, the outcome would differ. Whether a different reading of the explanatory materials or parliamentary history could generate a contrary intention remains a matter for argument in different factual contexts.
Proof of father's domicile: The Tribunal proceeded on an assumption that the father's domicile was New Guinea (paragraph 9). Where better or different evidence establishes a father's domicile (for example evidence he intended Australia as home despite living in New Guinea), different outcomes could follow. The decision does not fix an evidentiary standard beyond applying the domicile rule.
Distinction between different temporal and legal tests: This decision treats the domicile question as controlled by s 17 and mandate jurisprudence. Where statutes use alternative concepts (e.g. 'resident' or 'national'), or specify territorial reach, outcomes may vary. The decision is narrow to the phrase 'domiciled in Australia' as used in this particular Act.
People with hybrid or evolving legal statuses: The decision does not address situations where an individual's status involved later naturalisation, or where the person moved to the Commonwealth before 1 January 2001 and is now an Australian citizen. There may be factual permutations (such as subsequent acquisition of Australian domicile) that fall outside the precise ratio here.
Broader policy objections and equality concerns: The Applicant's representative raised the policy point that the statute's construction might disproportionately exclude non-caucasian internees (paragraph 8). The Tribunal noted the submission but did not engage in remedial or legislative correction. Whether such policy concerns could prompt a different statutory construction in a different case where the language is ambiguous remains an open normative question for legislators and courts.
In sum, Leung [2002] AATA 873 applies established rules of domicile, the Acts Interpretation Act, and mandate jurisprudence to hold New Guinea domicile in 1943 did not satisfy a statutory requirement of being domiciled in Australia immediately prior to internment. The decision is fact-specific and will be determinative in similar cases unless the statute or evidential record indicates a clear contrary intention or different domicile facts.
DECISION AND REASONS FOR DECISION [2002] AATA 873
Decision The Tribunal affirms the decision under review.
REPATRIATION COMMISSION - Compensation (Japanese Internment) Act 2001 - section 4(2) requirement of domicile in Australia immediately before the commencement of internment - whether Applicant was domiciled in Australia - discussion as to whether New Guinea part of the territory of Australia as at 1943 - held that domicile in New Guinea does not satisfy the legislation - decision of the Respondent affirmed.
Re Chan and Repatriation Commission [2002] AATA 742
1. This is an application by Mrs Marietta Leung ("the Applicant") for review of the decision of the Repatriation Commission ("the Respondent") to refuse the Applicant's claim for compensation pursuant to the Compensation (Japanese Internment) Act 2001 ("the Act").
2. The Applicant was represented by her son, Mr Bernard Leung, and the Respondent was represented by Mr Jim Marsh, Advocate. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.
* The Applicant was born in Rabaul, New Guinea on 9 September 1927;
* The Applicant's father was born in China and did not reside in Australia prior to World War II;
* The Applicant was interned by Japanese military forces in New Ireland from 1943 to 1944.
4. The relevant provision of the Act is section 4(2) which provides:
(2) A person is eligible for a compensation payment in the person's own right as a civilian if the following conditions are satisfied:
(a) the person was alive at the beginning of 1 January 2001;
(b) the person was interned by Japanese military forces at any time during the designated war period;
(c) the person was domiciled in Australia immediately before the commencement of that internment.
5. There is no dispute that the Applicant satisfies the requirements of section 4(2)(a) and (b) of the Act. The issue before the Tribunal is whether the Applicant was, as required by section 4(2)(c), domiciled in Australia immediately before her internment.
6. Mr Leung submitted, on behalf of the Applicant, that before and during the period of her internment, New Guinea was under the administration of Australia and was, for relevant purposes, a part of Australia. It was submitted on behalf of the Applicant that on this basis the Applicant and her father were domiciled in Australia immediately before the Applicant's internment.
7. Mr Marsh, for the Respondent, submitted that, as a minor at the time of her internment by the Japanese, the Applicant took the domicile of her father and that the domicile of her father at the relevant time was either China or New Guinea but not Australia. The Respondent further submitted that by the application of section 17 of the Acts Interpretation Act 1901, "Australia" means the Commonwealth, and does not include any external territory other than Christmas Island and the Cocos Islands, and that New Guinea has never been a part of the Commonwealth of Australia in any relevant sense. The Respondent relied generally on the decision of Deputy President Purvis in Re Chan and Repatriation Commission [2002] AATA 742.
8. In reply, Mr Leung submitted on behalf of his mother, that, if the Respondent's submissions are correct, then the Act has the effect of excluding non caucasian people and fails to concentrate on the central issue which is the suffering endured by those people who were interned by Japanese military forces during World War II. He argued for a review of the legislation should it be decided that the Applicant is excluded, by the provisions of the Act, from eligibility for compensation.
9. The Applicant, at the time of her internment, was a minor. It follows, according to common law, that she received the domicile of her father (paragraph 865, Halsbury's Laws of England, 4th Edition Reissue 1996, Vol. 8(1)). It is not clear from the evidence available to the Tribunal whether the Applicant's father's domicile at the relevant time was China, where he was born, or New Guinea. However, for the purposes of this analysis, the Tribunal will proceed on the basis that his domicile was New Guinea. The question that then arises is whether being domiciled in New Guinea in 1943 equates to being domiciled in Australia in 1943.
10. There was no dispute between the parties that, after World War I, New Guinea became a Mandated Territory of Australia under the League of Nations Settlement. Section 4 of the New Guinea Act 1920 provided:
"The Territories and Islands formerly constituting German New Guinea, as specified in the Preamble to the Act, are hereby declared to be a Territory under the authority of the Commonwealth by the name of the Territory of New Guinea."
11. In Chan (supra), Deputy President Purvis quoted the following extract from Oppenheim, 1948 "International Law. A Treatise", at page 193, 194 and 201:
"... the mandatory was precluded by the terms of the mandate from doing a number of things which an owner of territory can lawfully do...
by the terms of the mandates [the mandatories] agreed to exercise their mandates on behalf of the League, and the mandates, at any rate, contained no cession of the territory to the mandatory.
the dominant element was that of trusteeship for the inhabitants of the mandated area, "peoples not yet able to stand by themselves under the strenuous conditions of the modern world."
In April 1923 the Council of the League adopted certain resolutions with regard to the national status of the inhabitants of "B" and "C" [the territory of New Guinea] mandated areas, the substance of which was that they had a distinct status from that of the mandatory's nationals and, while not disabled from obtaining individual naturalisation from the mandatory, did not automatically become invested with its nationality."
12. The Applicant's submission is that, as a territory of Australia, under the administration of Australia, New Guinea is a part of Australia.
13. However, the Acts Interpretation Act 1901 provides in section 17:
"17 Constitutional and official definition
In any Act, unless the contrary intention appears -
(a) Australia or the Commonwealth means the Commonwealth of Australia and, when used in a geographic sense, includes the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands, but does not include any other external territory;
14. In Chan (supra), following an examination of the Explanatory Memorandum and the Second Reading Speech to the Act, Deputy President Purvis said:
"26. It is apparent from the wording used in the Explanatory Memorandum and in the Second Reading Speech, that it is to civilian Australians living as at 1 January 2001 that the legislation is directed, at compensation going to persons who are currently Australians, and who were domiciled in the Commonwealth of Australia as defined in the Acts Interpretation Act. There are locations such as Christmas Island, where those domiciled there in 1943 (the island not becoming a territory until 1958) would otherwise be excluded. Conversely living citizens of Papua New Guinea, not being living Australians, could be included. Those domiciled in New Guinea in the relevant period who were interned and are still there living would be entitled to compensation. This is clearly not the legislative intent. It is to Australians now who were domiciled then, in Australia, as defined in the Interpretation Act that the benefit is to accrue.
27. It is desirable to also consider the arguments raised in the event of a contrary intention being open for discussion.
28. The preamble to the New Guinea Act 1920 provided as herein before set forth:
"Except as provided in this or any Act, the Acts of the Parliament of the Commonwealth shall not be in force in the Territory unless expressed to extend there to or unless applied to the Territory by ordinance made by the Governor General under the Act."
29. New Guinea, it was submitted on behalf of the Respondent, was not treated by the Commonwealth as part of the law area of Australia. In a general sense, it had its own laws made under Ordinance, not the laws applying within Australia. The New Guinea Act provided for the giving of guarantees by the Commonwealth to the League of Nations, as noted in the preamble, and for the reporting on measures taken to carry out the guarantees. The latter did not apply throughout Australia. The nature or quality of the power conferred on the Commonwealth was a power given subject to the Mandate.
30. In this regard it is worth noting the consideration given by the High Court to the status of New Guinea in Wong Man On v The Commonwealth and Others [1952] HCA 27; (1952) 86 CLR 125 at 134:
"The novel character of the mandatory system inevitably gave rise to many problems and much discussion among international jurists, but one point on which there seems to have been unanimity - or something nearly approaching unanimity - is that a Territory the subject of a "C" mandate does not become part of the dominions of the mandatory in such a sense as to confer on the inhabitants the nationality of the mandatory. This is certainly the view which one would be disposed to take prima facie and without authority. In Frost v Stevenson_, (1937) 58 CLR 552 Latham CJ said: -_
"The Treaty of Peace, read as a whole avoids cession of territory to the mandatary, and in the absence of definite evidence to the contrary, it must, I think, be taken that New Guinea has not become part of the dominions of the Crown."
It was decided by all the justices in Frost v Stevenson that the Mandated Territory of New Guinea was a place out of His Majesty's dominions in which His Majesty has jurisdiction. ...But all of their Honours reached the same conclusion on the only point that is important for the purposes of the present case. It is true that the decision in Frost v Stevenson related to the Fugitive Offenders Act 1881 (Imp.), whereas the statute which I have to consider is the Nationality Act 1920 (Cth.). But it seems to me to be quite impossible for me to hold, consistently with Frost v Stevenson_, that the Mandated Territory of New Guinea became a part of His Majesty's dominions for the purpose of deciding a question of nationality. ..."_
31. The Tribunal is satisfied and so finds that a similar conclusion must be reached by it with reference to the current issue before it."
15. With respect, the Tribunal adopts the reasoning of Deputy President Purvis in Chan (supra) and concludes that the Applicant's father, and therefore the Applicant, was not, by means of his domicile in New Guinea, domiciled in Australia immediately before the Applicant's internment. It follows that the Applicant is not eligible to be compensated under the provisions of the Act.
I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Member
Signed: .....................................................................................
(1937) 58 CLR 552
(1952) 86 CLR 125
The Tribunal affirms the decision under review, dismissing the Applicant's claim for compensation because domicile in New Guinea did not satisfy the s 4(2)(c) requirement of being domiciled in Australia (paragraph 16).