Legal Opinions

There is no power in any of the Supreme Courts constituted as prize courts to exercise jurisdiction over vessels that have not been brought into some port within the States to which respectively they belong (The Carel and Magdalena (1800) 3 C. Rob. 58) nor is there any power except in the Crown in its Imperial capacity to establish new prize courts.

All German possessions, which were administered from Rabaul, are included in terms of surrender by German Governor of Rabaul, vide following telegram received from the Administrator, Rabaul on the 17th instant:

Your 0315 Yes, surrender covers all German possessions Western Pacific officially

known as German New Guinea includes Islands you specify.

The Marshall, Caroline, Pelew and Mariana Islands are thus included.

These Islands have not been occupied by our forces, but have been effectively patrolled by Japanese men of war.

In regard to Herr Haber's letter of October 25th, the terms in which his parole is given give rise to some difficulties of interpretation. If he were a military officer, they would probably mean no more than that he was not to serve in a military capacity, whether actively in the field or in any other military employment. In Herr Haber's case, they would no doubt include this, and would extend to any civil employment which has any such relation to the war as that which he recently held.

The Secretary, Department of Defence:

I have not before me the terms of the capitulation or agreement of September 17th to which Herr Haber refers. But assuming that the agreement contains no provisions as to the civil officers referred to by Herr Haber, the position would be this:

The Secretary to the Treasury forwards for advice the following memorandum by the Governor of the Commonwealth Bank of Australia:

Referring to the questions submitted by you from His Excellency the Governor-General for urgent advice-

This is a case of a shipment by a neutral ship from the German port of Jaluit in the Marshall Islands, to Sydney. The vessel left Jaluit on 27 September 1914; two days afterwards, Jaluit was occupied by our ally, Japan.

The Secretary, Department of Defence, has forwarded the following memorandum for advice:

Herewith is forwarded a report by the Comanding Officer, Royal Australian Naval College, dated 1st September 1914, regarding Mr A.B.C., Director of Studies. The views of the Naval Board appear on Docket 14/0350.

2. Regulation 36 of Statutory Rule 308 of 1913 provides as follows:

Authority on the effect of occupation upon the national character of territory is conflicting, and there is weighty authority that Jaluit has not even now lost its enemy character (see Pitt Cobbett, 3rd edn p. 32).

With reference to the German ship Setos, which before the war left Pugit Sound, under a time charter to a British firm, with a cargo of timber consigned to W. Balchin Ltd, Sydney (see my opinion of 8 September 1914⁽¹⁾) the Comptroller-General of Customs forwards for advice the following letter from W. Balchin Ltd to the Collector, Sydney:

Adverting to your letter of the 15th September in regard to the s.s. Setos, we have received the following cable from our San Francisco correspondents: