Bills Digest No. 6 2001-02
Compensation (Japanese Internment) Bill 2001
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Contact Officer & Copyright Details
Compensation (Japanese Internment) Bill
Date Introduced: 22 May 2001
Portfolio: Veterans' Affairs
Commencement: Royal Assent
Passage and Assent: The Bill was passed by the House of
Representatives on 23 May 2001 and the Senate on 24 May 2001
without amendment and received Royal Assent on 25 May 2001.
To provide a one-off compensation
payment to those interned as a prisoner of war (POW) by the
Japanese in World War Two (WWII).
To give recognition to the hardship and
suffering endured by those Australians who were held captive by
Japan during WWII.
Who will receive
The Explanatory Memorandum at page 1 sets out who it is intended
will be eligible for the one-off $25,000 payment. They are:
- a veteran who was a prisoner of war of Japan between 7 December
1941 and 29 October 1945; or
- a widow or widower of a veteran who was a prisoner of war of
Japan between 7 December 1941 and 29 October 1945;
- an Australian civilian who was interned by Japan between:
- 7 December 1941 and 29 October 1945; or
- a widow or widower of an Australian civilian who was interned
by Japan between 7 December 1941 and 29 October 1945.
Who were alive on 1 January 2001.
In cases where an eligible recipient was alive on 1 January 2001
but has since died, the payment will be made to their estate.
The provision of a one-off compensation payment of $25 000
each, to former POWs of the Japanese in WWII, was announced by the
Government in the 2001-2002 Budget.(1)
The Budget papers report that the total cost of the measure is
$247.8 million, with the Explanatory Memorandum detailing at page
ii that the net outlays to be expended under the Bill to be
$133.975 million. Why the difference? The difference between these
two figures arises as the payments of $25 000 each to POWs
known to the Department of Veterans' Affairs (DVA), can be made by
regulation, ie. some $113.825 million. For those individual POWs
and widows etc not known to DVA, they have to claim under this
Bill, and that is why at page ii of the Explanatory Memorandum a
sum of $133.975 million is allocated to be expended against the
Australian POWs of World War Two
By the completion of demobilisation as of February 1947, some
522 261 service personnel were discharged having served in
WWII. During WWII, some 19 000 (3.6%) were killed in action.
8000 service personnel were captured by the Germans and the
Italians and of these 7700 (96%) returned to Australia. Between
1942 and 1945, some 22 000 Australian service personnel were
POWs of the Imperial Japanese Army and of these only 14 000
(64%) returned to Australia and many of these have died since as a
result of their POW experience.
This very high death rate (36%) for Japanese POWs, contrasts
with the death rate for POWs held by the German and Italian Armies
1951 Peace Treaty of San
Francisco - between the Allied powers (including Australia) and
In 1951 some 47 Allied powers (including Australia) signed a
peace treaty with Japan in San Francisco. Under this 1951 Peace
Treaty, in article 14(a) Japan agreed to:
"make reparation to the Allied powers for the damage and
suffering caused by it during the war."
The San Francisco Peace Treaty of 8 September 1951 was seen by
Australian politicians of the day as largely a creation of the USA,
a treaty the other Allied governments were pressured into
ratifying, in view of the overall world situation. There was some
caution about vigorously pursuing reparations, given the history of
reparations sought from the Germans after World War One. The USA
was particularly concerned to have a sympathetic Japan as a buffer
and counter to the newly emerging threat of communist China.
In presenting the Treaty of Peace (Japan) Bill
1952 (the ratification instrument) to the House in 1952,
the Minister for External Affairs (Casey) said:
"The Australian Government has been particularly insistent
that Japan should make some atonement for the personal suffering
and hardship caused to many thousands of Allied prisoners-of-war,
and to the wives and families of those who succumbed to the harsh
treatment they underwent. We were able in the end to secure the
agreement of the United States of America, the United Kingdom and
other Allied Governments to the insertion in the treaty of a
provision that Japan be deprived of its assets in neutral and
former enemy countries, and that these be liquidated and
distributed among former prisoners-of-war and their dependants by
the International Committee of the Red
The parliamentary debates of the time centred on the likely
future threat of a revived Japan, rather than appropriate POW
reparation, especially as the terms of the 1951 Treaty did not
require any Japanese disarmament. Casey, in presenting the Bill to
the House, made particular comment about the Treaty being
negotiated and signed in the context of the then current broader
East Asian international situation. Casey further said the
government was by no means wholly satisfied with the Treaty, but
the same can be said of the some 47 other Allied governments that
Australia was instrumental in obtaining reparations from the
Japanese for the suffering and hardship to Allied prisoners of war
and had been instrumental in having reparations included as Article
26. This article provided that all reparations were to be met by
Japan but no further reparation would be sought unless Japan
negotiated a different arrangement with any country.
It is now believed that such a separate arrangement was made
each with Burma and Switzerland in the 1950s.
However, no detail of these compensation arrangements, extracted
from the Japanese by Burma or Switzerland in the 1950s, is known.
The presence of these other separate agreements would appear to
prime-facie allow Article 26 to be invoked and allow the Treaty
signatories to again approach Japan for further reparation.
Notwithstanding this knowledge, no other government has approached
Japan under Article 26.
Payments to Australian POWs by
Under the terms of the 1951 San Francisco Treaty, all Japanese
assets in Australia became the property of the Australian
Government. The proceeds from the sale of these assets were
distributed by the Government to all known former POWs of the
Japanese or their surviving dependants.
These funds, combined with funds distributed by the
International Red Cross from the sale of Japanese assets overseas,
resulted in each recipient being granted a total of 102 pounds and
ten shillings between 1952 and 1963. This amount would now be
equivalent to approximately $A2000, assuming it had been paid in
1957. The total amount distributed was in excess of 2.2
Proponents of further compensation for Japanese POWs now
consider that the eventual sums paid to individual applicants were
so small as to be almost derisory. They also claim the amounts paid
were undoubtedly well below any adequate compensation for the
suffering of POWs and the value of their forced labour to
Legal requirement for Japan to
provide compensation to POWs
Separate to the 1951 San Francisco Treaty, it has been argued
there is a legal obligation for Japan to provide compensation to
POWs. While Japan was not the signatory to any international
agreements prior to and during WWII, a claimed principle of
obligation to make reparation, has formed the basis of further
claims for 'adequate' compensation from Japan. This claimed
principle relies on reference to the famous judgement of the
Permanent Court of International Justice (PCIS), the predecessor of
the present International Court of Justice, in the Chorzow Factory
case (1928)(3). In that judgement, the Court
"....it is a principle of International Law, and even a
general conception of law, that any breach of an engagement
involves an obligation to make reparation".
It is claimed that Japan, by its treatment of POWs, was in
breach of established rules of International Customary Law in force
during 1942-45, ie. rules of general application existing apart
from any treaty provisions. Support for the argument that Japan was
subject to these obligations, although not the signatory to any
formal agreement, is provided in the Judgements of the
International Military Tribunals in Nuremberg 1946 and Tokyo
To date, Japan has not provided any significant compensation for
POWs, and it could be argued it is highly unlikely Japan ever will
do so, as evidenced by more recent unsuccessful claims arising from
the use of 'comfort women'.
In the absence of any 'significant' POW compensation payment
from Japan, the issue then arises as to whether the Australian
government should take up this obligation. This issue has been very
much heightened with the recent payments by several former Allied
countries to their Japanese POWs of WWII, ie. Canada (1998), United
Kingdom (UK) (2000), New Zealand (2001).
Payments and assistance to POWs
of the Japanese in WWII by the Australian
By the end of 1946, the medical treatment of POWs had become the
most pressing medical issue for the Repatriation Department.
POWs themselves were at anxious to avoid being treated as 'a
race apart'. In 1947 a special medical committee, including four
doctors who had also been POWs was appointed. They recommended POWs
should not be treated as a class apart and that a survey of medical
needs be conducted. A popular view at the time was that POWs had
suffered some psychological damage. However, a survey by the
Department of Labour and National Service found that POWs settled
back into work and society better than other veterans did.
Flowing from the investigations by the special medical
committee, a survey of all known POWs was conducted, with some
13 000 POWs of the Japanese participating. This was a very
high response rate, with the survey finding many needed medical
treatment but for various reasons had not taken up the
opportunities to seek assistance.
Demands for a POW
In the immediate post-war years, the payment of special benefits
to ex-POWs was a very controversial issue. The Chifley government
was urged to pay a special subsistence allowance for POWs,
especially for POWs of Japan. The government felt it had done
enough for veterans through its 80m post-war rehabilitation scheme,
war gratuity payments of 70m and established and comprehensive
repatriation benefits. Others argued that the sought for 6 per week
or so in special subsistence allowance should be extracted from the
The sought for weekly subsistence allowance for POWs was sought
for in other Allied countries and was consistent with the United
States (US) government paying a daily allowance for POWs.
Contrasting with this was the UK government, which declined to
Menzies, as Opposition leader, promised an inquiry into a POW
allowance, and after coming into office in late 1949 a Committee of
Inquiry was appointed. The Committee comprised W F L Owen, a
justice of the NSW Supreme Court, Lieutenant General S G Savige and
Dr W E Fisher, President of the 8th Division Council and
a former POW.
In a majority report, Owen and Savige did not make any specific
recommendation as to a special subsistence allowance, but implied
such a payment should not be paid, concluding that there was no
moral obligation on the Australian government to make a special
monetary payment to POWs of the Japanese. Further, they argued any
special payment might precipitate approaches by all POWs, and
demands from other veterans groups with special needs or demands,
unrelated to captivity.
In a minority report, Fisher recommended a payment of 3
shillings for each day the POW was captive and payment to next of
kin for POWs deceased in captivity.
The Menzies government accepted the majority report, that there
was no moral obligation on the Australian government to make a
subsistence allowance, although it contributed 250 000 to a
trust fund to relieve special cases of hardship amongst former
Australian Government Prisoner
of War Fund
In 1952, the then Australian Government set up a Prisoner of War
Fund to provide payments to members of the armed forces who had
suffered exceptional hardship as POWs and who needed financial
assistance. Payments from this fund were up to 250 per person. By
the time the fund was wound up in 1977 it had dispersed almost $1
million in aid. The 250 would be equivalent to about $A4,000 in
today's terms, assuming it had been paid in 1966.
Other Australian government
assistance to POWs - veterans' Gold Card
In the 1974-75 Budget, the Whitlam government extended to all
POWs of WWII free medical, hospital, dental and optical treatment
irrespective of whether their injuries were war related or not.
This is now provided in the form of the veterans' Gold Card.
Value of the veterans' Gold Card
Given the Gold Card is a health treatment card, use and
associated cost of the card varies tremendously between
individuals. The expanded access that was provided from 1 January
1999 to all qualifying WWII personnel, involved an estimated extra
50 000 cards at a cost of $508 million over four years. This
reduces to an annual cost per card of $2 540. This annual unit
card cost may be slightly higher for POWs for two main reasons:
- the WWII POWs probably have higher health costs than other
service personnel of WWII.
- the cost to government in providing health care servicing has
increased by about 2.3% a year, extra to the increased cost of
living (CPI), over past years.
This is due to increased use of technology, an ageing population
and a steady expansion of government provided or subsidised health
Other Australian government
assistance to POWs - payment of the resident contribution in
nursing homes for POWs
Normally, veterans and war widows/ers admitted to nursing homes
are required to pay a resident contribution towards the cost of
their food and accommodation. This is a standard fee equal to 87.5%
of the single rate of aged or service pension including rent
assistance. The only exemption is for POWs, who have their resident
contribution amount paid by the Department of Veterans' Affairs
(DVA). As at March 2001, the single rate of pension was $402.00 per
fortnight. Therefore, 87.5% of the single pension rate is $351.75
per fortnight, or, $9145.50 a year. This amount is the benefit to
POWs, but only those in nursing homes.
Canadian POWs of
the Japanese in WWII
Approximately 2,100 Canadian military service personnel were
captured in Hong-Kong on Christmas Day 1941 and held by the
Japanese for 44 months during WWII.
Canadian government assistance
specifically for POWs
Canada is the only Allied country that pays specific on-going
compensation to POWs. POWs of the Japanese during WWII imprisoned
for 89-364 days are paid 20% of the basic war disability pension
and those imprisoned for 365 days or more are paid 50% of the war
pension. POWs of any other power for 89-364 days are paid 10% and
15% if imprisoned for between 564-910 days and 25% for 911 days or
POW compensation is basically a payment for
undiagnosed/unestablished conditions arising from the stress of
capture, enforced inactivity/deprivation, etc. This form of
compensation arose when, after WWII it was found that first the
Hong-Kong and then European theatre POWs suffered from abnormally
high rates of morbidity, rates that could be roughly associated
with the length of their captivity. The veterans who were
incarcerated by the Japanese are in a special category because of
the length and severity of their captivity. Hence the payment is in
addition to any amount payable for a disability arising from a
medical condition due to, or exacerbated by, military service.
Historical development of
Canadian POW payments
In 1971, the Canadian government awarded a minimum disability
pension of 50% of the full war disability pension to all POWs of
the Japanese in WWII who had an assessed disability and had been
imprisoned for a year or more. This POW payment arose from a 1965
health study comparing Japanese POWs with other WWII veterans. The
main beneficiaries were POWs who had previously been receiving a
disability pension of less than 50%.
In 1976, the minimum 50% disability pension for POWs was
replaced by an equivalent payment under the new Compensation
for Former Prisoners of War Act.
This Act established a new benefit, which remains unique among
veterans' benefits provided by Allied powers.
Former POWs are eligible for a monthly compensation payment,
whether or not they have a disability arising from wartime service.
Qualification for and the amount paid vary between individuals
depending on the enemy power involved and time spent in captivity -
Canadian POWs of the Japanese in Hong-Kong during WWII qualify
for the maximum amount under this prisoner of war compensation
payment. The maximum amount of compensation for prisoners of other
powers was the equivalent of 20% of the war disability pension, the
lesser amount a reflection the exceptionally harsh treatment
suffered by the Hong-Kong veterans.
As at December 1996, some 448 Hong-Kong POWs and 299 widows of
Hong-Kong POWs were receiving payments. The Canadian government
also pays for the health care costs and independent living needs
arising from war related disabilities for POWs.
How does Canadian government POW
assistance contrast with government assistance in Australia and the
The Canadian government, in providing a POW specific
compensation pension, is somewhat unique. This is not provided in
Australia or in the UK. In Australia, the only POW specific
assistance is the veterans' Gold Card (health treatment card) and
the payment of any nursing home accommodation fee, as described
POW compensation examined by
Canadian Parliamentary Committee
In 1997, the Foreign Affairs and International Trade Standing
Committee of the Canadian Parliament sat in March to consider the
implications of compensation to Japanese POWs. Of course,
representatives of Canadian POWs of the Japanese in WWII made
submissions to the Committee recommending the payment of
The view of the Canadian government on compensation, as
presented to the 1997 Canadian Parliamentary Committee, was:
"It is the position of the Government of Canada that the
peace treaty of 1952 constitutes a complete and final settlement of
all claims against Japan arising out of the prosecution of World
Much of the other evidence presented to the Committee by the
Canadian government was a chronology of the compensation and
assistance arrangements that had been previously provided to
See Canadian government assistance specifically for
In the end the Committee recommend the payment of compensation
Committee recommendation taken into account:
The Minister shall take into account the recommendation of
the Standing Committee of the House of Commons on Foreign Affairs
and International Trade that the compensation be in the amount of
twenty three thousand, nine hundred and forty dollars to every
surviving Hong Kong veteran prisoner and every surviving widow of a
Hong Kong veteran prisoner.
One-off ex-gratia payment by
Canadian Government instigated by a private Member's
On 3 December 1998, Mr Peter Goldring moved for leave to
introduce a Bill and it was read a first time to provide for
compensation to those Canadian veterans who were taken prisoner by
the Japanese in 1941 in Hong Kong and forced to work in labour
camps. In introducing the Bill he said:
Mr. Speaker, Christmas Day 1941 started a despicable period
of time when 2,000 Canadian soldiers, who defended Hong-Kong,were
interned by the Japanese and put into forced labour in Japanese
industries. Since that period of incarceration, Japan made a
settlement of $1 a day in the early 1950s which was not a
settlement in kind. The Canadian government went on in 1955 to
conspire against further compensation to these same war veterans.
This bill is to set right a gross wrong that occurred many years
ago. It is long overdue. It is fair, right and has all-party
support. I must be done.
$C24 000 ex-gratia payment
In December 1998, the Canadian government announced a one-off
ex-gratia payment of $C24 000. The origins of the payment
arise from a private Member's Bill, the second reading speech of
the presenter, Mr Peter Goldring (Edmonton East, Rep.) is set out
What was the basis for the
amount of $C24 000?
The amount of $C24 000 for the ex-gratia payment was based
on the Geneva Convention provision that POWs required to undertake
work be compensated at the applicable daily rate for a labourer of
the interning country (calculated at the equivalent of $C18).
For Canadians POWs captured in Hong-Kong on Christmas Day 1941,
and freed in mid-August 1945, the calculation was $18 x 1 328
days = $C24 000 when rounded up.
(UK) Government Assistance for POWs
In the UK, former Japanese POWs of WWII had been campaigning for
many years, trying to obtain compensation from the Japanese
Government, but without any success or prospect of a positive
result. News of the Canadian government decision in December 1998,
to give their survivors an ex-gratia payment from Canadian
government coffers, galvanised the resolve to seek the same or like
measure from the British government.
Then the Manx Parliament (the Tynwald) decided to provide POWs
of the Japanese with an ex-gratia payment very like that provided
by the Canadian government. The Tynwald is the Parliament on the
Isle of Man, which, while a UK crown dependency, has a high level
of internal self-government.
They have a very small number of eligible POWs but their
decision considerably increased the pressure for the British
government to do likewise, to recognise that there was a fair case,
that the Japanese were unlikely to pay, and that they should do so
The payment arose from a review the Prime Minister initiated,
following a meeting with the Secretary General of the Royal British
Legion about these matters, held on 10 April
British 10 000 ex-gratia
payment to POWs - November 2000
On 7 November 2000, the British government announced that it
would pay the sum of 10 000 sterling (about $A26 000
depending on exchange rates) to former POWs and other detainees of
Japan during WWII. Set out below is some description, background
and comment on this ex-gratia payment.
Brief details about the payment are set out below:
- Funding for the payment comes from the British government
- Every eligible person gets the same amount of 10 000
- The payment is not taxed or income for pension/benefit
- Payments commenced to be made from 1 February 2001
- It is anticipated that up to 16 700 people may be
- Anticipated cost to government is 167m
The figure of 10 000 has been around for many years, and
it's about the same amount as various POW groups in different
countries have settled on. It is the same amount, which the Isle of
Man decided to offer, and roughly the equivalent of the Canadian
The 10 000 does not represent any pro-rata payment for days
of captivity or forced labour. Some discussions were had about
using a pro-rata payment, but these were rejected on the grounds
that it was a symbolic payment and all should get the same.
The Government has been keen to stress that it's an 'ex-gratia'
payment rather than compensation. This probably stems from concerns
about compensating service personnel, in terms of the precedent it
might set for other claims, and also it has been argued
compensation implies fault, which the British government is hardly
likely to accept in this case.
decides in April 2001 to provide a $NZ30 000 ex-gratia payment
to Japanese POWs
On 23 April 2001, the NZ government announced the payment of a
one-off $NZ30 000 ex-gratia payment to ex POWs of the
Japanese. Spurred on by the ex-gratia payments to POWs in the UK,
Canada and the Isle of Man, NZ veterans have been pressing for a
A one-off payment by the
Australian Government to Japanese POWs of WWII - will it lead to
One of the concerns for any government in making payments to a
new group or class of persons is the potential for other like
groups or cases to ask for the same or like assistance. The power
for governments to resist like claims will probably mainly rest on
the fact that the Japanese POWs are a unique group. However, the
history of repatriation in Australia is very much one of catch-up
claims by disaffected groups.
One group that may be inspired to seek a similar payment are
POWs of the Germans and Italians of WWII.
Item 4 of provides for a description of those eligible for the
one-off payment and only one payment can be made to an eligible
Item 5 stipulates that the only amount payable
is $25 000.
Item 6 requires a claim for the payment to be
lodged in a form approved by the Secretary of the Department of
Item 8 provides for the payment to be made to
the estate of a person where they have claimed, are eligible but
have died prior to the payment being made.
Item 11 provides for the $25 000 to be
exempt as taxable income.
Item 12 provides for the $25 000 to be
deducted from the value of the person's assets, for the purposes of
the assets test applied under the Social Security Act 1991
and the Veterans' Entitlements Act 1986. This is a one-off
deduction so the payment has no effect under the assets test.
This does not exempt any income earned if the monies are
invested from impacting on the income test, or, any accumulated or
appreciated additional capital value gained from being treated as
The payment of compensation payment by the Australian government
in respect of POWs of the Japanese of WWII follows like payments by
the Canadian, UK and NZ governments in the past few years. This
payment will certainly be welcomed by WWII veterans generally and
POWs of the Japanese of WWII especially.
It remains to be seen whether this payment instigates claims for
a similar payment by other POWs, ie. POWs of the Germans and
Italians of WWII.
As the name of this Bill explicitly states, the payment by the
Australian government is described as 'compensation'. This
contrasts with the descriptions provided for the United Kingdom and
New Zealand payments, called 'ex-gratia' payments. The New Zealand
government explicitly stated their payment was an ex-gratia payment
and had no bearing on claims for compensation by former POWs and
internees from other governments.(7) The Canadian
payment was described as compensation and the legislation itself
was titled the Hong Kong Veteran Prisoner Compensation Act
- Portfolio Budget Statements 2001-2002 - Department of Veterans'
Affairs Portfolio, Budget Paper No. 1.4B, page 32.
- House of Representatives Hansard, Vol 216, p. 21.
- Permanent Court of International Justice, Ser A No 17.
- Submission to the Human Rights Commission of the United Nations
Organisation by the Queensland ex-POWs Reparations Committee, 22
March 1990., pages 22-28.
- Mr Gilbert Laurin - (Deputy Director, Legal Operations
Division, Department of Foreign Affairs and International Trade),
to the Foreign Affairs Committee of the Canadian Parliament of
- Press Release No. 2001/054, The UK Department of Social
Security - 10 000 Ex-Gratia Payments Sent Out To
Prisoners Of War And Other Captives Of The Japanese, 1
- Prime Ministers' Media Release - Ex gratia payments to
ex-POWs and civilian internees of Japan, 23 April 2001.
- Bill C-463 Hong Kong Veteran Prisoner Compensation Act
1998., 1st Session 36th Parliament - House of
Commons of Canada.
31 July 2001
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