The Prime Minister:

It appears that in about May 1902, a Malay arrived at Port Essington, who stated that he was the only survivor of the crew of a proa from the Dutch island of Banda, which, when trading among the neighbouring islands, had been blown out of its course and eventually wrecked on the mainland of Australia, probably near Cape Wilberforce (Northern Territory). Some days afterwards having camped on shore, the crew (consisting of the Arab captain and 10 men from Banda-all presumably Dutch subjects) had been attacked by a large body of natives, and all except himself had been killed. He had escaped and had eventually been picked up by a Malay proa (engaged in beche-de-mer fishing) and brought on to Port Essington.

As yet these statements have not been verified, nor has it been learned that the exact locality of the wreck has been ascertained, or the natives identified; though the Sub-Collector at Port Darwin states in a report of 29 October 1902 that when the Malay proas arrive on the coast in about February (now past) they would probably be able to locate the scene of the massacre and perhaps point out some of the perpetrators.

The Prime Minister asks to be advised:

1. Whether there is any principle of international law or comity which makes a state responsible for outrages committed by savages within its limits on subjects of another state who may happen to come within its territories.
2. If such responsibility exists, is there any settled method for ascertaining the amount of compensation due.
3. Whether, if it is held that the Commonwealth is bound to pay compensation, there is any liability on the State of South Australia to the Commonwealth to refund any amounts so paid because of the inadequacy of its Police Force.

My opinion upon these questions is as follows:

1. The principles of international law require the government of a state to exercise such effective control over its subjects as to prevent any such outrage within its borders upon the subjects of foreign states as it can reasonably be expected to have knowledge of or to prevent. There is no principle of international law or comity which makes the state liable to make compensation for every outrage committed within its borders; though when any such outrage is committed the state is doubtless responsible in the sense that it has a duty to use all reasonable means to punish the offenders.

   Applying these principles to the case of an outrage by savages upon ship-wrecked sailors in such a region as the Northern Territory of South Australia, at a distance from any port or civilized settlement, I am of opinion that neither the Commonwealth nor the State of South Australia can be held to be responsible in the sense of being required to pay compensation. See Hall, International Law, 4th edn, pp. 226-232; and especially the following passage on page 229:

   If a government honestly gives so much care as may seem to an average intelligence to be proportioned to the state of things existing at the time, it does all it can be asked to do, and it cannot be saddled with responsibility for consequences of unexpected gravity. In no case moreover can it be reasonably asked in the first instance to use a care or to take means which it does not habitually employ in its own interests. In a great many cases of the prevention of injury to foreign states care signifies the putting in operation of means of inquiry, and subsequently of administrative and judicial powers, with which a government is invested primarily for internal purposes. If these agencies have been found strong enough for their primary objects a state cannot be held responsible because they have failed when applied to analogous international uses, provided that the application is honestly made.

   Every effort should however be made to ascertain the facts of the case, and to identify and punish the perpetrators of the outrage if it is found to have been committed.

(2) and (3) In view of the above answer, it becomes unnecessary to answer these questions.

The case of raids by the Tugeri from the Dutch possessions into British New Guinea is clearly distinguishable on the ground suggested in the minute⁽¹⁾ of the Secretary, Department of External Affairs.

[Vol. 3, p. 231 ]

(1) Not found.