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New South Wales v Commonwealth (1915)

From Wikipedia, the free encyclopedia

New South Wales v Commonwealth
CourtHigh Court of Australia
Decided23 March 1915
Citation(s)[1915] HCA  17, (1915) 20 CLR 54
Case history
Prior action(s)Commonwealth v NSW (Inter-State Commission 22 February 1915)
Court membership
Judge(s) sittingGriffith CJ, Barton, Isaacs, Gavan Duffy, Powers and Rich JJ
Case opinions
(4:2) The Constitution separated the legislative, executive and judicial functions of Government. The Inter-State Commission was part of the executive function and could not exercise judicial power.
(per Griffith CJ, Isaacs, Powers & Rich JJ)
(Barton & Gavan Duffy JJ dissenting)
(6:0) Freedom of interstate trade is not infringed if there is no differentiation arising by reason of interstate trade.
(per Griffith CJ, Barton, Isaacs, Gavan Duffy, Powers & Rich JJ)

New South Wales v Commonwealth,[1] commonly known as the Wheat case,[2] or more recently as the Inter-State Commission case,[3] is a landmark Australian judgment of the High Court made in 1915 regarding judicial separation of power. It was also a leading case on the freedom of interstate trade and commerce that is guaranteed by section 92 of the Constitution.[4]

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  • The Colonel of Tamarkan: Philip Toosey and the Bridge on the River Kwai
  • Australia. History of Australia in a Nutshell.
  • Breaking Through the Brown Glass Ceiling by Ken Wyatt

Transcription

Just before I start, I was giving a lecture in Sheffield on Sunday and I was talking about the evacuees. And so much in the press about particularly children in the Second World War is grim and gruesome because bad stories make good press. And I decided to counter with some good news stories about children in the Second World War. And a chap came up to me afterwards and he said, ‘Listening to you is like listening to Enid Blyton talking about the Second World War,’ which was pretty hurtful - I was quite taken aback by it. But what I do want to say about the lecture today is I’m speaking about my grandfather. He was the colonel, Colonel Toosey, who was depicted by Alec Guinness in the film 'Bridge on the River Kwai'. And when he spoke about his experiences in Thailand he said, ‘Never let anybody tell you that it was always grim all the time. There were moments when I was frightened, there were moments when I was in severe danger, but there were also moments when I learnt more about the spirit of human beings.’ So, if I do emphasise the positive, it’s because I’m his granddaughter. Is there anybody in this room who has not seen the film 'The Bridge on the River Kwai'? There is a lady in the background. Well, will you allow me to tell the story as I go along, and if you find any holes in the story, let me know. The film was released in 1957, it won seven Oscars in the 1958 ceremonies. It became for many the most... or one of the most famous war films of all time. It was based on a book by a Frenchman called Pierre Boulle. Now, Pierre Boulle was an interesting character. He wrote the book in 1952, so just seven years after the war. He had been a French engineer, trained in Avignon. He went out to Malaya as a rubber planter in 1935, and he was in Malaya working in the rubber plantations when the Japanese invasion happened. He had trained as a saboteur, and of course part of the film is the story of the destruction or the planned destruction of the bridge, as well as Colonel Nicholson’s construction of the bridge. And that is where Boulle got a lot of his sources from. He was also imprisoned, not by the Japanese, but in fact by the Vichy French, and he spent three and a half years in Hanoi. So, he had a great deal of first-hand experience, although he himself had not been on the Thailand-Burma railway. So, the novel is based on stories that he had from the rubber planters who were on the railway and from his own experiences in the war. And when he came to talk about the book in later life, he was very keen to emphasise that the film was very much an amalgamation of his fiction and a screenplay written for Alexander Korda Films in 1955 at the instigation of Sam Spiegel - so, it was a real conflagration of stories from the railway, so the whole film is at least two steps away from the reality. And this is a picture of Pierre Boulle in later life. He never really settled after the war. He went back to live in Paris in a hotel, and after he’d written 'Bridge on the River Kwai' he also wrote 'La Planète des Singes', or 'Planet of the Apes'. So the film is centred around these two characters. In the centre, Alec Guinness playing the role of Colonel Nicholson, the bone-headed intransigent British Army colonel who ends up by building a bridge for the Japanese. And on the right, played by Sessue Hayakawa, Colonel Saito who is the Japanese officer put in charge of the camp, and his job is to get the bridge built with as much speed as possible. Now the real-life colonel was not a full-time army colonel, he was in the Territorial Army. This is a photograph of him taken in 1935 when he was on a civilian trip to Brazil. He was in fact a merchant banker from Liverpool and his interest in the Army only really grew as the thunderclouds of war drew closer and darker during the 1930s. He joined the territorial army in 1929, not really out of passion, to be honest, but out of the instruction of the commanding officer of his Territorial Army unit, seated third from the right, Colonel Alan Todd, who also happened to be his boss at Barings Bank. And what... and you didn’t say no to Alan Todd. He was behind the... he was the man that was responsible for a lot of the financing in Liverpool cathedral. But Toosey is on your left sitting down, on the screen. And what is interesting is that the two majors that they were at the outbreak of war on the left, and the two on the right, all four of them became honorary brigadiers by the end of the war, so it was a regiment of some distinction. They went out to France at the beginning of the war and he was involved, Toosey and his regiment were involved in the retreat from Dunkirk. And this is a photograph, a very familiar photograph I’m sure to all of you, of the... getting rid of the 358-odd thousand soldiers and civilians who were captured or were going to be threatened to be captured by the Germans. He came into Margate hugely humiliated by the experience. In fact he said later to his biographer, ‘If anybody asks me what I did in the Second World War, tell them I ran like hell, twice, and the second time we ran out of land.’ Now that silly comment actually covered quite a severe humiliation, because he really only had about two and a half, three weeks of fighting in France, and he was determined that he wasn’t going to spend the entire war simply being a grown-up home guard. So he asked to be sent to Officer Training School, which he was. And in the autumn of 1941 he was sent from Gourock to Nova Scotia with a regiment, an East Anglian regiment, that was the 135 Herts Yeomanry, a medium gunner regiment. And he was sent over there where he was then transshipped and he was going to be going to the Middle East. And he said, ‘How did we know? Well, our destination was secret, but our guns and our boxes were painted sand-coloured, marked Basra.’ So this is the photograph of the Mount Vernon which is the ship that they went out on. And on the morning of 8 December 1941 he was in the captain’s cabin when he heard the devastating news of the strikes on Pearl Harbour. Two days later the captain reported the loss of the 'Prince of Wales' and the 'Repulse' off Singapore, and immediately his regiment and the other troops in the 18th Division were told that they would not be going to the Middle East, they would be going out to Singapore. Toosey landed on Singapore on 27 January 1942. He landed and he went straight up to the mainland and he fought at Johor Bahru and then he came down onto the island along with the retreat with the Australians and the Indian regiments that were regrouping on the island. He had about ten days fighting and then he was up at Nee Soon, by the reservoir, and he was ordered on 13 February to go into General Key’s office – General Key was in charge of the Indian Division of which he was seconded to – and he was told two days before the surrender that he was to be evacuated to India. And he turned round to General Key and he said, ‘No, Sir.’ And General Key said, ‘Yes, Sir. It’s an order!’ And he said, ‘No, Sir! I cannot go.’ And General Key said, ‘Toosey, it’s an order. You will go to India, and furthermore you will leave tonight.’ And Toosey said, ‘Sir, in the Territorial Army an order is a matter for discussion. I cannot leave my men.’ And afterwards he went on record to say it was actually a very ill-thought-out order, because how would the men have looked at him, the commanding officer, if he had fled and they had been left to be taken into captivity. And two days later Singapore fell, and the greatest defeat in British military history was suffered. And he, along with nearly 40,000 British and Australian troops were taken prisoner by the Japanese. And it was indeed a very great humiliation and he felt it. But about three weeks into his captivity he wrote the only letter that his wife was to receive from Singapore, and he said to her, ‘I have realised that there is a great job to be done here. These men need me to look after them and that is what I am going to do. It is my duty.’ And it was this word ‘duty’ that was so important to him, and it was what functioned and what made him function for the whole of the rest of his time in captivity. Now, initially they were kept on Singapore. Eventually in the summer of 1942 the Japanese removed all the senior officers and left just those of the rank of lieutenant-colonel and below on Singapore island. And about three months later they decided they were going to be able to use this enormous force of men as slave labour. And they decided they were going to use the men to build a railway. Now the railway was going to run from Thailand to Burma, and the reason for the railway was an overland route because the shipping in the Gulf of Siam was being severely bombed by the Americans, and the Japanese were desperate to get their munitions and men and provisions up to the western border for their invasion of India. Now many people have assumed that the Thailand-Burma railway was a spur of the moment decision by the Japanese. That is disrespecting the Japanese. They were hugely organised, and they were in fact already surveying the route of the railway in 1937 when this photograph was taken, and they were using drawings drawn up by German engineers. The British had considered the possibility of building a railway from Bangkok, in effect, or Nong Pladuk - where the railway starts in Thailand - up to Burma, at the end of the 19th century, but had come to the conclusion that the jungle conditions, where diseases such as cholera and dysentery and beriberi are rife, were so bad that the conditions for the men working on such a project would be too... there would be too high a loss of life. But the Japanese had no such problem at this stage, they had by then 60,000 men available for a workforce, and in addition about 250,000 men from Burma, from Malaya, who they could use to swell the workforce and to work on the railway. So, that was the plan. They would build it from Nong Pladuk on the one end and from Thanbyuzayat in Burma on the other, and the two railways would meet at a place called Kon Kuta, which I don’t know if you can see, but it’s right in the middle of the screen, and is absolutely hard up on the Thailand-Burma border. Now, Toosey was told in October that he was going to be sent up to Thailand and his men were going to be in a much better environment than on Singapore, there would be more food, better weather and light work. They were squeezed, 35 men, 30-35 men, into these rice trucks. Now, rice trucks are fine for transporting Japanese troops because the average height of a Japanese soldier is about 5ft 4in, but for the British Army, and for the Australian Army in particular, it was purgatory because these men, average height 5ft 8in, 5ft 10in, they were bent double in the trucks, and in fact there’s a rather wonderful drawing by Jack Chalker, who was an artist who was up on the railway in his early twenties, and he drew this drawing of men huddled up in the trucks, squeezed in with all their baggage and everything on top of them. It was a horrible journey, Toosey said. It lasted for three days and four nights and in that time many of the men who were in his truck had dysentery. It was extremely uncomfortable in the sweltering heat of the daytime, and the freezing bitter cold of the night-time. So, by the time they got up to Nong Pladuk, or rather to Ban Pong in Thailand, they were in a pretty poor shape. They had one night in a transit camp and then they were bussed. Some of very few who were actually sent by transport, most were made to walk, but they were bussed in a series of lorries up to a place called Tamarkan, which I will show you a map of in a second. And they arrived at this camp and it was, at the time, being run by a Major Roberts from the Anti-Tank Regiment. And it was a very small camp. It had only about space for 250, but Toosey with 650 men was going to triple the size of the camp, so the Thais were ordered by the Japanese to supply building materials and the men had to build their own huts. And as you can see there are two men here building a hut at Tamarkan. The huts were built entirely out of bamboo, not a nail was used in the construction, and they were large bamboo poles, about one and a half times the size of an old-fashioned telegraph pole. And the huts were covered in attap roof - attap is a palm - and they were layered on just like large roof tiles. And Toosey said when the huts were well kept-up, when there was time to look after the roof, basically they were dry. But an awful lot of bugs fell out of the roof, and those men who hated spiders and any other critters had a very unpleasant time sleeping in those huts. They were about 300ft long, so 100 metres, and each man had a bamboo... a space on a bamboo platform that was about 6ft long and about 20in wide, so fine for them to lie and sleep on, but not enough room for them to turn over so they didn’t disturb the man next to them. Now the camp at Tamarkan was, as far as Toosey was concerned, in a very good spot. It was close to a river, and as you can see in the bottom right-hand corner there’s a little sign that says POW camp. This river was the river Mae Klong. It was an enormous river that met up at the town Kanchanaburi where Tamarkan was - Tamarkan’s a little sort of village about three miles outside of Kanchanaburi - and the two rivers met. The Mae Klong met the river Kwai Noi, and it’s the river Kwai... the word ‘Kwai’ that stuck in the prisoners’ minds. And Toosey was told when he arrived at this camp that his job was to build two bridges over the river. The first would be a temporary wooden bridge that would be built in the space of three months, and then there would be a concrete and steel bridge which would take about six months to build. And the reason that the Japanese needed a steel and concrete bridge over this river was because during the monsoon season it swelled from about 20 metres to something in the region of 200 metres, and the Japanese realised that it was a major engineering obstacle and it would require a serious structure. So, Toosey’s job was quite simply to build these two bridges. He had, by the time they started work on the bridges, 2,500 men at Tamarkan and he was completely in charge. He told the Japanese that he would agree to work, and the reason that he would agree was because this had already been preordained by General Percival in Singapore. Now, it’s very important to know that, because in the film the row between Colonel Saito and Colonel Nicholson is whether or not British officers or British men should be working for the Japanese war effort. But Percival had already agreed with Yamashita, and he was in no negotiating position, that the Japanese could use the British and the Australian men, the Allied men if you like, as the labour force. He didn’t like having to do that, but that was the condition. What, of course, he didn’t know was that the Japanese were going to use the men to build this railway. And this railway was a massive construction. It was 415km long and along its route were 688 bridges, of which only nine were constructed out of steel or concrete - eight in Burma and the one in Thailand. And this is a typical bridge. It is not the house-of-cards bridge which fell down four times during its construction, but it is one of the bridges along the route of the Kwai Noi. In fact, interestingly, the river actually never crosses the river Kwai Noi, it runs alongside it, but the reason for the bridges was all the little tiny culverts and gulleys that swelled of course in the monsoon season. Now when Pierre Boulle and co came along to write the story of the Bridge on the River Kwai, they had a bridge in mind but of course nothing physical. And when Sam Spiegel who directed and... sorry, who produced the film 'The Bridge on the River Kwai' came to look at the possibilities, he sent his art director out to Thailand and the art director said, ‘This is a hopeless place to build a bridge. The land is flat and there’s one there anyway. We need something more dramatic.’ So, he went to Sri Lanka, where his wife came from, and he found the most beautiful site at a place called Kitulgala about three hours outside Colombo. And there he decided they would construct the film bridge. But what was this bridge to look like? Well, Sam Spiegel, who was a very flamboyant character as I’m sure many of you know, put a competition out for students and he announced that he wished a design for a bridge to be made and this would be used in the film 'Bridge on the River Kwai'. And these two students from the Massachusetts Institute of Technology sent this design in - they had a reading week but they didn’t do any reading - and this in fact was the bridge that was used, the shape of the bridge that was used for the film. Now the crux of the film, as I’ve mentioned, is the stormy relationship between Alec Guinness’s character, Colonel Nicholson, and the Japanese character, Colonel Saito. In fact, Toosey was anything but confrontational. As an experienced salesman in the bank he knew how to get the very best out of people, and this photograph of him here, OK he’s smiling because he’s just won a major award, but it’s a very typical photograph of him. He was charismatic, he was quite loud, he was very generous-spirited, and above all he strongly believed that his men were the most important thing in his life and that his leadership was dependent upon their trust in him. And when he first saw the film and he saw the ridiculous stormy row between Saito and Nicholson he turned round to his daughter and he said, ‘That was never like that. You could never have confronted the Japanese and caused them to lose face. That would have been fatal, I would not have survived.’ But, of course, for the drama of the film it works very well. And at this moment in time Saito has just announced to Nicholson that he is going to order not only men but British officers to work, and Nicholson refuses, cites the Geneva Conventions, Saito snatches the Geneva Conventions out of Nicholson’s hand and slaps him across the face. It’s an extremely dramatic moment. Oh yes, and he then orders Nicholson to be locked up in that metal hut you can see in the background. And in one of the most dramatic scenes in the film, Nicholson, after three and a half weeks, is dragged almost dead out of this hut and into Saito’s office. And it’s at that moment that the film changes completely and Saito has to admit to Nicholson that his bridge is not being built successfully because the British officers and the British men are not listening to the Japanese instructions and that is where Nicholson says, ‘Allow me to take over. My engineers will build you a better bridge in a different place and to Tokyo’s timetable.’ And that is what the Japanese object to so much about the film 'Bridge on the River Kwai', the implication that they are incapable engineers. But the story of Nicholson’s holing-up was actually based on a true story which Pierre Boulle will have heard and which, when the film was rewritten by David Lean who took the script and Boulle’s novel, he took this story, and this is of a man called Captain William Mortimer Drower. He was an Oxford-educated translator. He spoke fluent Japanese, but of course honorific Japanese as opposed to peasant Japanese which is what the guards and particularly the Korean lads at the camps would have spoken. And Bill Drower had the dubious honour of having started at the Burma end of the railway and ended up right down beyond Tamarkan at an officers-only camp in Kanchanaburi in 1945. And it was there where he was working as Toosey’s translator that he fell out with the Japanese commander. The Japanese commander had been hugely insulted by Drower implying... implying to one of his guards that the war would soon be over and the Japanese would be held accountable for the atrocities that had taken place during the construction of the railway. Drower was ordered into Noguchi’s office. Noguchi threw a major wobbly at him. He belted Drower round the head, broke Drower’s arm and in the process of the fight Drower fell onto the commander’s table and the table was broken and of course the Emperor had been insulted and Drower was condemned to 76... no, in fact he was condemned to life underground, which lasted for 76 days and nights. And this is a photograph of the ghastly hovel that Bill Drower was forced to live in, imprisoned. He received only a rice ball daily from the Japanese, but an immensely brave man called Peter Fane was determined to do something for Drower. So he, who was the young officer who took Drower his rice ball on a daily basis, put vitamins which he’d been given by the doctors into the rice ball and the doctors were sure that that would help to save Drower’s life. We’ll come back to him later. So, the two bridges at Tamarkan were constructed. They were constructed by the Japanese Railway Engineering Unit with the British and Australian and Dutch, who were also at Tamarkan, soldiers simply providing the labour. And as you see, there is a Japanese soldier up on the wooden bridge. The British and the Australians and the Dutch were simply slaves. They moved earth, they moved sleepers, they moved rails, they didn’t do anything technical. And certainly when it came to the construction of the metal-and-concrete bridge at Tamarkan. You can see in the foreground the Australian officer... guard and his lad in his slouch hat, but all the Japanese officers working on the railway bridge, it was they who oversaw the construction of the railway, and again this is why they feel so furious that they were insulted in the film. Now, in the film of course Alec Guinness take[s]... or Colonel Nicholson takes tremendous pride in this beautiful bridge which has been film[ed]... which has been constructed by his men in a better place and into a quicker time than the Japanese ever could have made it. And all along there is the plan in the film for the bridge to be blown up when it is first used, and it allowed the character of William Holden, who’s in the middle, to be introduced. This is not in the book 'Bridge on the River Kwai', it is introduced, the American character’s introduced by Sam Spiegel because he wanted to have an American love story in the film. So, there he is planning the destruction of the bridge. Now, the destruction of the bridge in the film was the most spectacular explosion in movie history. It was the first really expensive movie explosion and Sam Spiegel was rightly proud of it. He told everybody who would listen that it had cost $250,000. I found the accounts for the film, it was $53,000 dollars, but why spoil a good story. Now, the story of the blowing up of the bridge, if you’ll just permit me a quick diversion, was actually a very funny one because Don Ashton, who was the director of...the artistic director, had set up six cameras around... and they had to do it for real - there were no special effects in those days - they had to do it for real. And he’d set up six cameras – one on the train and five around the bridge – and he’d given David Lean, the director, a wooden panel with six light bulbs on it. And what every cameraman was told to do was to set his camera running, press the switch which meant that he’d jump clear out of his pit and get the hell out of the way. Come the day, Sam Spiegel, the great producer, had invited all the dignitaries to Kitulgala. There was a champagne reception, there were balconies built so that they could watch this spectacular explosion - about 1,000 people turned up, I believe. The moment came, ‘toot-toot’ went the train, the first light came on, the cameraman who had been in the train had jumped clear, the second light, the third light, the fourth light, the fifth light, the sixth light did not light up. And David Lean had to make a split-second decision. Did he risk the life of Freddy Ford, the cameraman, or did he stay his hand? And he stayed his hand and the train ran over the bridge and ploughed into the sandbags on the other side. Two days later, in front of a small number of people from Kitulgala, this tremendous explosion happened. So, next time you watch the film you can think about that, but it really is one of the most spectacular explosions in history. Now the bridge on the river Kwai itself, the bridge at Tamarkan, was also destroyed, but it wasn’t destroyed by mines, it was destroyed from the air, and it was destroyed by the Royal Air Force in June 1945. So, the construction of the bridge had been completed by 1 May ’43. The bridge was used successfully by the Japanese for two and a half years, or two and a quarter years. Initially the railway was used to take munitions, and men, and provisions up to the Burma border, and then latterly of course to retreat back. What’s interesting about this photograph is that the steel-and-concrete bridge has been put finally completely out of use, but the wooden bridge is still there. And it was bombed to destruction nine times, and nine times it was reconstructed. And in fact that was the bridge that the Japanese went on using till the end of the war. So the bridge at Tamarkan was finished by 1 May 1945. Toosey had had the very good fortune, he would always say, of being at a camp where there was fresh water. There was never cholera at Tamarkan. There was disease. His men were underfed like all prisoners of the Japanese, they were overworked like all prisoners of the Japanese and they lived in pretty squalid conditions. But Toosey was a man who believed enormously that dignity and morale was of paramount importance. He also, on the advice of the doctors, insisted on cleanliness in his camp and there were to be no beards at Tamarkan. He also interestingly introduced a no-officers'-mess regime, which today doesn’t sound extraordinary but in 1942 was practically heretical. But he said unashamedly, ‘We only have a very limited amount of food. Why should the officers eat more than the men? And indeed why should the officers sleep in officers’ sleeping quarters? They too will sleep with the men in their huts.’ And in those enormous huts 300 yards long... 300ft long, the officers would sleep at the doors so that they could warn the men if any Korean guard or Japanese guard was coming into the hut if the men were, for example, drawing or writing diaries, which was completely illegal. So Toosey had set up really quite a strict regime at Tamarkan, but he also negotiated hard with the Japanese. He’d insisted that they had one rest day, not a week but about every ten days. He had also persuaded the chap in charge, who happened to be called Regimental Sergeant Major Saito, that he needed better food for his men. Slightly controversially he said, ‘If I have better food, fewer men will go sick and therefore you will have more workforce.’ That was construed by some as collaboration. As far as he was concerned it was just plain good sense, he needed these men to get back safely. He also negotiated the use of a canteen at Tamarkan. And that was enormously valuable, because at the canteen the officers who earned a little bit of money and the men who earned a pittance could spend money on duck eggs, on cigarettes, on perhaps peanut cookies that they would have an opportunity to make in the kitchens and that would supplement their diet. But it was also a very useful source of money for him, Toosey. In addition to taxing the officers 30 and later 60 per cent, he had a fund that he could use whenever he could get out to buy materials for the hospitals. And in fact although the rate of death on the railway was 27 per cent, in his camp about of the 2,500 who were building the bridges at Tamarkan only eleven men died, and most of those died of diseases that they might well have died of anyway. So the railway was continuing to be built at the end of April ’43, and Toosey asked to be sent with his men further up the railway. He was refused. He was very upset about this, but he was told by the Japanese that he was to set up a hospital at Tamarkan because despite the very cruel attitude that the Japanese had to the sick, they realised that the schedule for their completion of the railway was being held up by the fact that so many of the prisoners were suffering from not only chronic, but also acute conditions. And this beautiful countryside in Thailand, if any of you have visited it will know it’s one of the most lovely countries on earth, but the jungle has hideous conditions endemic in it. Cholera broke out in the spring of 1943 and that wiped through not only the British and Australian camps, but also through the camps of the native workers and they died in their thousands. 83,000 of them died during the construction of the railway to our just over 12,000 Allied troops. And the conditions up the railway were gruesome beyond belief. The... this is a photograph taken by a man called George Aspinal who very bravely had smuggled a camera through Changi and up on to the railway and it shows a cholera camp, and they were lying not under bamboo huts but under tents. And the cholera huts were always a long way from the camp because it’s such a hideously infectious disease. This is a drawing by the great artist Ronald Searle who, as you know, has just recently died. He was a survivor of the railway and this is a drawing he made of a man who was dying of the vitamin deficiency disease beriberi. And this is a particularly gruesome drawing of a dysentery hut by a Dutch artist by the name of Jan Van Holthe who was with Toosey both at Tamarkan and then later at another camp called Nong Pladuk. The conditions these men were living in, especially up further in the jungle, were absolutely gruesome. So, the Japanese ordered Toosey to set up Tamarkan as a hospital. Now the word hospital conjures the image of white sheets, clean beds, silver trolleys rattling down corridors, whereas in reality all Tamarkan was was a compound for desperately sick men. And this drawing by Jack Chalker is of men being unloaded from the barges that had brought them down the railway and to Tamarkan camp. Toosey had eventually nine doctors and 45 orderlies. When he was first given responsibility for Tamarkan as a hospital - he wasn’t a doctor himself - the Japanese gave him a large bottle of iodine, three bandages and six packets of aspirin. But he had the most fantastic ally. This is a man called Doctor Arthur Moon, he was a gynaecologist - ladies - from Sydney. But he was a fantastic doctor. He was a surgeon. He’d been with the now-world-famous Weary Dunlop, Doctor Weary Dunlop, who was a surgeon from Australia - although British-born, I think - who was operating further up the railway. And Toosey had the great good fortune of having Doctor Moon as one of his staff and the senior doctor. Moon had the most wonderful bedside manner, and even when he was giving patients the worst possible news that they would lose a limb – many limbs were lost as the result of jungle ulcers – he had the ability to make them feel that it was less dangerous than keeping their wounds. But still the death rate at Tamarkan was horrendous, because with so little medicine the men were dying of entirely preventable diseases. And they were dying at a rate of about six a day, most of whom were having to be buried by Toosey. And then an extraordinary thing happened. In July 1943, so just three months after the camp had become a hospital, a Thai delegation from the Red Cross arrived at Tamarkan to inspect the camp and the translator, who was an Anglo-born Thai-speaking sergeant in the British Army, turned round to Toosey, caught him on one side while they were visiting one of the huts, and he said, ‘There is help in Bangkok. I can provide a link to somebody who has money and medicines, and this money and medicine can be provided for your hospital if you sign your number, rank and name on this piece of paper.’ Now it was a huge risk, and this photograph - which is appalling, I apologise - was taken in October 1943 just at the height of the scheme when they had decided, despite all the risks, to go with Moon’s... with Toosey’s suggestion and to get in touch with what was called the V Organisation in Bangkok. And this photograph was taken, there’s Toosey sitting on the right, Doctor Arthur Moon standing in the centre, Captain David Boyle sitting on the left, and there are three Korean guards. Toosey said, ‘In those months when we were receiving medicines from Bangkok and they were smuggled in in baskets of fruit, you cannot imagine how badly I slept. It was probably the most dangerous and foolhardy thing we ever did.‘ But, and even though only four men knew about the smuggling of these drugs and medicines, it had a huge impact on the camp, and the death rate fell from six a day to about three a week by October-November ’43. So, it was an extraordinary help to them, and most of them didn’t know about that help until 1948 when Toosey put out an appeal for the man, Mr Boon Pong, who had been the link man in Kanchanaburi and who had supplied the medicines and money to Tamarkan camp. Now the railway was finished on 25 October 1943. It had taken less than 12 months to build, and the Japanese then sent many of the men who had been working on the railway to Japan to work in the mines. Toosey was sent down to a big base camp called Nong Pladuk, that was away from Kanchanaburi, and there he was in charge of 8,000 men and they were simply moving materials and loading and unloading trains for the Japanese at the marshalling yards. And he had a new problem. There was slightly better food, there was much less work – although they were still worked very hard – the numbers of sick dropped dramatically, and the men very often were becoming bored, so he set up a concert party. He had two concert parties in fact, a Dutch concert party and the English concert party. And as you can see from this rather wonderful programme that he was given for one of the concert parties, there was any number of entertainments including, I must point out, 'Wizardus, Magic and Mystery'. This was a magician who was a bombardier. He was in Toosey’s camp. He was a man who Toosey admired enormously. I think it would be fair to describe him as a loner. He always said of his experiences in the camps, ‘I knew I had to survive and I didn’t need anybody else to help me survive.’ But he was an enormously brave man this lad, Fergus Ancorn. He was a member of the Magic Circle already in the 1930s. He’s still alive today, he’s still a member of the Magic Circle and he reminds me he’s not, thank you very much, the oldest member of the Magic Circle. But he was an example of the kind of man who Toosey could rely on. And Toosey always said, ‘In those prison camps it didn’t matter whether a man had rank or status. It didn’t matter a button if he was a lord, what mattered is if he was a man who was brave enough to work with me. Those men, those men like Fergus Ancorn were the salt of the earth because they could help.' And how Fergus Ancorn helped Toosey was to keep the men in the hospital huts entertained. And that, to him, was so valuable because those men, rather than lying down and dying of despair, felt that somebody was looking after their spiritual good health as well as their physical good health. Toosey was at Nong Pladuk until the summer of... the spring of 1945 and then he was moved up to Kanchanaburi where he was with Bill Drower, the translator, and there they were in an officers-only camp for about five months, six months. And then the war came to an end, and this photograph taken by Major David Smiley, a rather bashed-up photograph I’m afraid, is of Ubon camp which was the camp where Toosey’s men had all been sent to when Toosey was separated from them at the beginning of ’45. And Toosey, immediately the war was ended, was determined to get back to his men, he wanted to be with them as quickly as possible so that he could celebrate the end of the war and look after them on the journey home. And this remarkable photograph is of the reunion. And it’s Toosey taking the parade, here are all the officers who have been returned, and round the edge of the perimeter of the parade ground are 3,500 men. I interviewed David Smiley and he said, ‘You cannot imagine how impressive it was to see those men dressed in the ball bags and their ripped-up shorts. They’d been prisoners for three and a half years and they stood there and they saluted as we sang ‘God Save the King’. And up went the union flag and I wept.’ So Toosey’s reign in Thailand had been one of keeping morale together, keeping the men as healthy as he could, physically and mentally, and keeping the Japanese at bay. And one of his prisoners, in fact the man who drew that ghastly picture of the men in the dysentery hut, drew this drawing for him which was a picture of him kicking a Korean guard up the backside and having above him the union flag and the Dutch flag. And the Dutch were hugely proud to thank him for the contribution he’d made to their experiences in the prison camps. He came back to Britain in 1945, November, they came back by ship, and he was frankly deeply traumatised. He arrived home, two of his three children didn’t recognise him. My mother Gillian screamed when he tried to embrace her because she hadn’t been touched by a man since the beginning of the war, and his wife was deposed. She found his return enormously difficult because he had returned a hero, there was no doubt about it, those men who had been in his prison camps held him in very high esteem, and she regarded him quite simply as the stupidest man she’d ever met in her life. But he was... he was a man traumatised. This photograph was taken in 1946, he’s back in his office at Barings Bank, completely unable to get his head around the changes that had taken place in the six and a half years since he’d left home, and the three and a half years since he’d been in captivity of the Japanese. Barings Bank to their eternal credit - pre-Nick Leeson - took him in hand and they knew that they had the... one of the great heroes of the captivity period working for them, but also a man who was completely broken up and discombobulated. So they sent him to South America, initially for six weeks, but eventually for six months. And he had the wonderful experience of travelling all around South America as an ambassador for Barings Bank, trying to drum up business, but being away – away from Britain, away from Thailand. And he wrote a wonderful letter to his boss at Barings, Evelyn Baring, in August, just before he came home, saying, ‘I went with my friend Dum Tweedie up into the north of Peru and I saw a native hut, and I saw women sitting in the native hut cooking and I thought to myself this reminds me of my experience in Thailand except now I wasn’t envious of them.’ He very quickly readjusted when he got back, and in 1947 he set up the Far Eastern Prisoners of War Federation – this was a group of associations and clubs all over Great Britain where FEPOWs – Far Eastern Prisoners of War – could go and have meets and talks and events and so forth, and annually there was a big get-together. Initially Toosey, who’s standing here in the background with a pipe, initially he was the vice president. He insisted that General Percival should be appointed the president, which was quite controversial because Percival had, in effect, been responsible for their captivity. But the men were very proud of Percival’s ten years that he spent looking after the Far Eastern Prisoners of War – in fact 20 years, he died in 1966 - and Toosey always said that he thought it gave Percival a new lease of life after the humiliation of the war. The reason I show this photograph is because Toosey was not only dealing with the men and keeping up his duty towards them on the grand scale if you like, on the large scale, but he was also doing it on a personal level. And the man standing behind my mother in his suit is a man called Arthur Osborne who was Toosey’s batman for the second half of his captivity. And Osborne came back to Britain with chronic malaria, very severe mental problems and he kept writing to Toosey and asking if he could come and live with him. This lad was 22 when they came home after the war. And Toosey obviously had no use as a middle-class banker for a valet, so he found Osborne a job on a ship, and Osborne worked as a ship’s purser, gradually going up the ranks. And he worked for 17 years travelling all over the world on ships. And eventually he came back to Britain, and he came to see Toosey and he gave Toosey a photograph of the bridge at Tamarkan just after it was finished construction. And he gave that to Toosey as a memory of the great time they had spent together. And Toosey in turn gave him the one thing that really meant something to him, he gave him one of his labrador puppies. But he also gave Osborne the only interview he ever gave about his experiences on the railway. So how do I know all this? Because, of course, like all other prisoners of war, he never spoke of his experiences on the Thailand-Burma railway, and with respect most certainly not to little girls, and I was 16 when he died. Well, he fortunately was encouraged by his older son, Patrick, just before he died, to make a series of tape recordings. And he spoke for 30 hours over a period of 18 months, about half an hour or an hour a week, to a professor of history from Liverpool University. And to my great delight, a set of these tape recordings not only existed at the Imperial War Museum, and they still do, but a set had also been made for the family. So I was able to spend wonderful hours driving, cooking in the kitchen for my children, listening to these tapes, hearing his voice again. This photograph was taken of him in 1974 after major heart surgery, and my memory of him is of a very old and very frail man, but a very lovely and kind man. But in the tapes his voice is strong and he laughs and he jokes, and when he tells a story of something that is very gruesome you can feel him, his voice changes and he almost disappears from the room mentally and he’s back there in Thailand. And they’re a very, very powerful record of his time on the railway. So the film came out, seven Oscars, eight Oscars, I can’t remember the exact number, hugely – seven, it says so there – seven Oscars, hugely successful film, and Toosey just went to see it with his daughter and didn't really think very much more about it. But the prisoners of war were furious because they saw it as a terrible slur on his leadership and they wanted to him to object. But there was nobody to object to – people believed the Hollywood story was the true story. When I was doing research for the book, I decided I had not only to go out to Thailand and see the real bridge, but I had to go and see where Pierre Boulle and the film crew had put the bridge on the river Kwai. And here it is at Kitulgala, and the footings are the only thing... the concrete footings are the only things that are left of the film bridge that was blown up so successfully second time round in 1957. The real bridge, this is a copy of a photograph that Osborne gave to Toosey in the 1950s, the real bridge was repaired by the Thais and is still used today. And the railway runs from Bangkok up to a place called Nam Tok and it takes schoolchildren from Kanchanaburi up and down the railway. And today the bridge on the river Kwai is an enormous tourist attraction. And I have to say it was the one moment when my mother slightly faltered when we went to the bridge at sunset and there was an enormous crowd of Japanese, and she said, ‘I just had to pinch myself, darling. I did find that slightly traumatic.’ Let me end, because I’m on time, with the... very quickly, the story of Bill Drower. Bill Drower was hauled out of his underground prison on 17 August 1945 and he was sent to a hospital at Nakompatong. And this is where a photograph was taken after which this drawing was made. He was barely alive, he was suffering from blackwater fever, he’d been delirious, a rat had eaten into his foot. He was in the most appalling, appalling state. But Bill Drower survived, he became a diplomat, he spoke fluent Japanese still – here he is on the right with Toosey’s son Patrick looking very like his father. And in 1994 Bill Drower went on a reconciliation mission to Japan, and he was taken as an honoured guest all around Japan. ‘The condition,’ he said, ‘of my coming is that I’m allowed to give a speech in Japanese, and I will use the honorific.’ He gave a speech in Tokyo. He was then taken to Osaka and Fukuoka and Hiroshima, and on the train going from Osaka to Fukuoka on the bullet train he sat back and he said to his young translator, ‘This is a very comfortable train, I’m very impressed by Japanese engineering.’ And the Japanese - I’m not going to insult him by doing the accent - the Japanese translator turned round to Bill and he said, ‘It’s a very good... yes, it’s a very good one. It’s built by one of our most famous engineers. He built a railway during the Second World War.’ And Bill said, ‘I know, I helped him.’ So, ladies and gentlemen, I’m going to end with the good news story that Bill Drower did survive, despite his appalling times on the railway. And he and many of the others would tell you that despite many of the horrible things that happened to them it was, for them, a university of life. And for some of them... for some of them a great experience. Ladies and gentlemen, thank you very much indeed.

Background

In 1914 there were rising prices in Australia for various commodities, including wheat, caused by a drought in Australia from 1911 to 1916 and the outbreak of World War I in July 1914.[5] The initial response of the Parliament of NSW was to fix the price of wheat at 4s 2d (4 shillings and 2 pence) per bushel while the then market price was 5 p higher at 4s 7d.[6] Farmers and merchants refused to sell their wheat at that price and resulted in the Government seizure of wheat stored at railway yards.[7] By December 1914 the market price in Victoria had risen to 5s 6d.[5] The NSW Parliament passed the Wheat Acquisition Act 1914 to compulsorily acquire wheat in NSW and for varying or cancelling contracts for the sale and delivery of wheat,[8] paying a price of 5s per bushel of wheat acquired.[5] The acquisition necessarily prevented the performance of any existing contracts for the sale of wheat in NSW to be exported to another State.

In January 1915, the Commonwealth applied to the Inter-State Commission for an order to prohibit the NSW Government and the NSW Inspector-General of Police from preventing the exportation of wheat to other States on the basis that this acquisition infringed the Constitution's guarantee of freedom of interstate trade and commerce. The commission consisted of a chief commissioner, Albert Piddington, who had been briefly appointed to the High Court but resigned before hearing a case,[9] and two laypersons, George Swinburne and Nicholas Lockyer (Comptroller-General of Customs). The Inter-State Commission found that the NSW Wheat Acquisition was invalid and made the order sought by the Commonwealth, with Swinburne and Lockyer finding that NSW had contravened section 92 of the Constitution[4] by compulsorily acquiring wheat which was the subject of contracts for interstate sale and was in the course of interstate transport. Piddington disagreed, holding that the Act was a valid exercise of the power of a State to compulsorily acquire food for the civilian population.[5]

NSW appealed to the High Court, challenging the decision not only on the basis that NSW contended that it had not infringed the freedom of interstate commerce, but challenged the very foundation of the Inter-State Commission. The argument was that the Inter-State Commission Act 1912,[10] was contrary to the separation of powers that was implicit in the Constitution. The argument had its foundation in the structure of the Constitution, where chapter 1 dealt with the Parliament, chapter 2 with the Executive Government and chapter 3 with the Judicature. The Inter-State Commission is not within any of these chapters, instead it is within chapter 4 which deals with finance and trade.

The idea that the executive is unable to exercise judicial power has its origins in the 1607 decision in the Case of Prohibitions which held that the King had no right to personally sit as a judge and interpret the law.[11] The more immediate precursor was the separation of powers under the United States Constitution including the power of the Supreme Court to review whether a law passed by Congress was unconstitutional.

Decision

The High Court upheld the appeal by NSW on both grounds, the majority deciding that the strict insulation of judicial power was a fundamental principle of the Constitution. All judges held that the compulsory acquisition of all wheat, even though it included wheat that was the subject of interstate trade, did not contravene the freedom of interstate trade that was guaranteed by section 92 of the Constitution.[4]

Judicial power under the Constitution

The High Court held that only a court established under Chapter III of the constitution can exercise the judicial power of the Commonwealth. The Inter-State Commission created by the Inter-State Commission Act 1912[10] could not exercise judicial power despite the words of section 101 of the Constitution,[12] because it was set up by the executive and violated the conditions for being a Chapter III court.

Griffith CJ noted that under the Constitution a judge of a federal court was appointed for life, while a member of the Inter-State Commission was appointed for a seven-year term and that s73 identified the Inter-State Commission as separate and distinct from a federal court. His Honour held

the functions of the Inter-State Commission contemplated by the Constitution are executive or administrative, and the powers of adjudication intended are such powers of determining questions of fact as may be necessary for the performance of its executive or administrative functions.[13]

Isaacs J considered the use of the word adjudication in section 101 of the Constitution[12] and the related reference in section 73 to "judgments, decrees, orders, and sentences" of, inter alia, the Inter-State Commission. His Honour found that the separation of powers was a fundamental principle of the Constitution.[14]

Rich J held that "The Constitution draws a clear distinction – well known in all British communities – between the legislative, executive and judicial functions of Government of the Commonwealth." and that the Inter-State Commission fitted within the executive function, holding that "I see no reason why powers of adjudication and administration which may be conferred by Parliament on the Inter-State Commission ... should be any wider in scope than the power conferred upon the Executive by sec. 61. Indeed, one would expect that they might well be something less."[15]

Powers J agreed with Griffith CJ and Isaacs J.[16]

Barton & Gavan Duffy JJ disagreed. Barton J held that the Constitution gave the Parliament an absolute discretion as to what adjudicatory or administrative powers it deemed necessary for the Inter-State Commission.[17]

Freedom of interstate trade and commerce

Griffith CJ held that the power of a State to power to expropriate private property was a power inherent in sovereignty, provided the property was within the territorial limits of the State.

Barton J similarly held that a State had the power to expropriate property. While the Act changed the ownership of wheat, it did not prevent the State as the new owner from participating in interstate trade.[18]

Isaacs J held that because all wheat in NSW was treated alike, with no differentiation arising by reason of inter-State trade, there was no interference with interstate trade.

... while neither States nor Commonwealth can detract from the absolute freedom of trade and commerce between Australian citizens in the property they possess, there is nothing to prevent either States or Commonwealth, for their own lawful purposes, from becoming themselves owners of that property and applying it, according to law, to the common welfare[19]

Gavan Duffy J. said:—

It is to be observed that sec. 51 (I.) of the Constitution enables Parliament to make laws for the peace, order, and good government of the Commonwealth with respect to Trade and commerce with other countries, and among the States. The words absolutely free in sec. 92 must, therefore, be subject to some limitation so as to give them a meaning which is consistent with the existence of this legislative power, and the meaning when ascertained must be the same always and in all conceivable circumstances; it must apply equally when we are considering the right of the Commonwealth to legislate under sec. 51 (i.), and of the States to legislate under sec. 107.[20]

Significance

The Wheat case sounded the death knell, not only to the Inter-State Commission, but also to the combined function approach to administrative adjudication in Australia.[21] The decision continues to have ramifications for both federal courts and non-judicial tribunals and has been followed in numerous High Court decisions, including

  • Waterside Workers' Federation of Australia v J W Alexander Ltd where the majority of the High Court held that because the President of the Commonwealth Court of Conciliation and Arbitration was appointed for 7 years and not life as required by Chapter 3 of the Constitution, the Court could not exercise judicial powers of the Commonwealth.[22]
  • British Imperial Oil Co Ltd v Federal Commissioner of Taxation a power of appeal against an income tax assessment was part of the Judicial power of the Commonwealth which could not be conferred upon a Board of Appeal.[23]
  • Silk Bros Pty Ltd v State Electricity Commission (Vict) a power to determine applications by landlords for recovery of premises and providing for the enforcement of the Board's orders were an invalid attempt to confer Judicial power on a body that was not a Federal Court.[24]
  • R v Davison a registrar was not an officer of the Bankruptcy Court and a legislative attempt to confer upon a registrar the power of making a judicial order was therefore void.[25]
  • R v Kirby; Ex parte Boilermakers' Society of Australia (Boilermakers' case) established the second limb of the separation of powers doctrine in that a Federal court established under Chapter 3 of the Constitution could not exercise executive power of the Commonwealth.[26]
  • Re Wakim; Ex parte McNally that while the constitution permitted the Commonwealth to vest jurisdiction in State Courts, it did not permit the States to vest jurisdiction in Federal Courts.[27]

References

  1. ^ New South Wales v Commonwealth (Wheat case) [1915] HCA  17, (1915) 20 CLR 54.
  2. ^ Duncan v Queensland [1916] HCA  67, (1916) 22 CLR 556 at 581.
  3. ^ Williams v Commonwealth [2012] HCA  23, (2012) 248 CLR 156 at [55].
  4. ^ a b c Commonwealth of Australia Constitution, section 92.
  5. ^ a b c d "Official History of Australia in the War of 1914–1918" (PDF). Commonwealth of Australia. 1941. pp. 648–653 – via Australian War Memorial. {{cite web}}: External link in |via= (help)
  6. ^ "Proclaimed prices". The Sydney Morning Herald. 17 September 1914. p. 9 – via National Library of Australia..
  7. ^ "Commandeered. Stocks of Wheat". The Sydney Morning Herald. 18 September 1914. p. 6 – via National Library of Australia..
  8. ^ "Wheat Acquisition Act 1914" (PDF). Parliament of NSW. 11 December 1914.
  9. ^ Fricke, Graham (1986). Judges of the High Court. Melbourne: Century Hutchison Australia. ISBN 0-09-157150-2. p82.
  10. ^ a b "Inter-State Commission Act 1912". Commonwealth of Australia. 24 December 1912..
  11. ^ Case of Prohibitions [1607] EWHC J23, 77 ER 1342, 12 Coke Reports 64, 4 Inst 41.
  12. ^ a b Commonwealth of Australia Constitution, section 101.
  13. ^ Wheat case (1915) 20 CLR 54 at p. 64 per Griffith CJ.
  14. ^ Wheat case (1915) 20 CLR 54 at p. 88 per Isaacs J.
  15. ^ Wheat case (1915) 20 CLR 54 at 108–9 per Rich J.
  16. ^ Wheat case (1915) 20 CLR 54 at p. 106 per Powers J.
  17. ^ Wheat case (1915) 20 CLR 54 at 70 per Barton J.
  18. ^ Wheat case (1915) 20 CLR 54 at 77–80 per Barton J.
  19. ^ Wheat case (1915) 20 CLR 54 at 101 per Isaacs J.
  20. ^ Wheat case (1915) 20 CLR 54 at 104–5 per Gavan Duffy J.
  21. ^ Asimow, Michael; Lubbers, Jeffrey S. "The Merits of 'Merits Review'" (PDF). 2011 67 Australian Institute of Administrative Law Forum 58.
  22. ^ Waterside Workers' Federation of Australia v J W Alexander Ltd [1918] HCA  56, (1918) 25 CLR 434.
  23. ^ British Imperial Oil Co Ltd v Federal Commissioner of Taxation [1925] HCA  4, (1925) 35 CLR 422.
  24. ^ Silk Bros Pty Ltd v State Electricity Commission (Vict) [1943] HCA  2, (1943) 37 CLR 1.
  25. ^ R v Davison [1954] HCA  46, (1954) 90 CLR 353.
  26. ^ R v Kirby; Ex parte Boilermakers' Society of Australia (Boilermakers' case) [1956] HCA  10, (1956) 94 CLR 254.
  27. ^ Re Wakim; Ex parte McNally [1999] HCA  27, (1999) 27 CLR 511.
This page was last edited on 16 February 2018, at 07:17
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