DATE OF ISSUE: 20 FEBRUARY 1996
GUIDELINES FOR DECISIONS ON POW STATUS
Purpose
Following the exemption of POWs in nursing homes from paying the patient contribution there have been a number of requests for the Commission to recognise that a veteran was a POW. This instruction sets out the criteria for determining whether a veteran was a POW for the purposes of the Veterans' Entitlements Act.
Background
2.Neither the VEA nor the Repatriation Act has ever contained a definition of prisoner of war. In 1975, when Repatriation Regulations to provide health benefits for POWs were established, the Commission noted the legislative draftsman's opinion that the inclusion of a definition would rob the Department of flexibility of approach. For a time after the commencement of the VEA, the expression "prisoner of war" was replaced by "detained by the enemy". Although this was technically a more accurate term, "prisoner of war" was reinstated in 1988 after protests by the POW Association and others. Prior to this action the Commission, on 17 February 1988, had decided not to recommend inclusion of a definition of prisoner of war. The Commission further noted that while the Department of Defence used the expression it has never formally defined it and supports the flexible approach taken by the Department of Veterans' Affairs.
3.The criteria for POW adopted by Commission in 1975 is:
“A veteran who has been confined in a camp, building, prison or other restrictive areas as a prisoner of the enemy”
4.The present emphasis is on confinement and captivity rather than the nature of a place in which a prisoner was held. This emphasis arose from precedent cases determined by the Commission concerning the duration of captivity. A number of veterans had been captured in action only to be liberated soon after, in one case some hours later. In these circumstances the area had no physical restrictions ( walls, wire etc) but they were none the less prisoners held by the enemy and have consequently been considered as POWs.
5.While the duration of captivity is not a consideration, a veteran must have been taken captive. Claims have been made by some veterans who, in the course of evading, were challenged by border guards or were delayed at checkpoints or the like. Contentions that these momentary delays, while undoubtedly nerve-wracking, constitute captivity have never been accepted as establishing POW status. Unless a veteran was taken into custody, POW status cannot be conceded.
6.Because of the flexible nature of the criteria for prisoner of war it is not possible to be prescriptive as to evidence required to satisfy these guidelines. The best evidence is mention in the service documents that a veteran was a POW. In rare cases there may be no record that a veteran was briefly captured and then either escaped or was recovered as the tide of a battle turned. While it is highly unlikely that this happened in Korea or during WWII in the Pacific area, this may have happened to veterans who were in forward areas on the campaigns in Greece, Crete, North Africa or Syria in WWII. There have been no Australian veterans taken prisoner of war in any conflict since Korea.
7.In the absence of confirmation from service records other evidence must be considered as it would be for other benefits. These may include verification from service documents that a veteran was in a given area, detailed statements from the veteran concerning his capture (including whether he surrendered any weapon to the enemy) and the conditions under which he was held. Personal war diaries, official histories of the war and supporting statements by others who served with the veteran are useful.
8.Official histories include war diaries of individual units held by the Australian War Memorial. However, requests for information should not be made directly to the Australian War Memorial. Departmental Instruction B65/95 issued on 8 December 1995 contains information on how to access material at the AWM. A revision of this instruction is to be issued shortly.
9.In the event that no corroboration or denial of captivity can be found, the provisions of sub-section 119(h) of the VEA concerning absence of official records etc, should be applied. Delegates then must decide to their reasonable satisfaction, taking into account the beneficial nature of the legislation and the known circumstances of the veteran's service, whether a veteran had been captured by an enemy.
WR MAXWELL
DIVISION HEAD
COMPENSATION