Opinion Number. 1441



Key Legislation

TREATY OF PEACE BETWEEN THE ALLIED AND ASSOCIATED POWERS AND GERMANY done at Versailles on 28 June 1919 [1920] ATS 1 (Treaty of Versailles) arts 436, 438: GERMAN MISSIONS ORDINANCE 1926 (NG) s 5

The Secretary, Department of Home and Territories

The Secretary, Department of Home and Territories, has forwarded me the following minute for advice:

With reference to your opinion No. 26 of 1927,(1) your papers 867/7/41, and previous correspondence regarding German Mission property in the Territory of New Guinea, I desire to inform you that a communication in the following terms has been received from the Rev. F. Otto Theile, Director of the Lutheran Mission, New Guinea, regarding the property of the Neuendettelsauer Mission and the Rheinische Mission:

Your communication No. 27/660, addressed to myself on the 19th February 1927, states in clause (b) as follows:

(b) It is now competent for a German missionary society which is composed entirely of missionaries, to enter and establish itself in New Guinea, but it would be necessary before taking such action to obtain the approval of the Administrator.

That clause is being interpreted to mean that the German missionary societies who controlled missionary activities and possessed real property in the former German New Guinea, and who were deprived of such control and dispossessed of their property, could now regain such control and re-enter into possession of their former property. I read the clause quoted above as referring to new undertakings of German missionary societies and understand that it does not give to German missionary societies a judicial right to claim the return of their mission or their property.

The Lutheran Mission New Guinea was given charge of the control and of the property of the Neuendettelsauer Mission and of the Rheinische Mission both of Kaiser Wilhelms Land, New Guinea, by the Prime Minister’s Department (vid. No. S.C. 477/76 dated 22 June 21). It has loyally stood by its undertakings of that time. The work in New Guinea has prospered and the activities of the mission have extended so much, that today it has a staff 66% more numerous and is in touch with 50% more natives than in 1921.

At the time (1921) we deplored deeply that the exigencies of the war deprived our fellow-Christians of their fields of labour, where they had spent much treasure and where many graves gave testimony of the Christian love and self-sacrifice of their missionaries. We did not rob the previous owners of their fields and of the fruits of their labour. We were grateful that our God made use of us to save the promising work from the utter destruction which was then threatening. Today the Christian world at large expects that we hand back to the previous owners, the German missionary societies, the control and the property which they possessed in New Guinea before the outbreak of the war. And there are those who look upon us as usurpers because we have not done so already.

It must be understood from the outset that the Lutheran Mission as constituted today is quite willing, and holds itself capable to conduct the work now under its control in New Guinea. There is no doubt though that since the original arrangements were made in 1921, the conditions have changed considerably and the position the Government took up then has been very much modified. At that time the Government, as represented by the Hon. W. M. Hughes, would, under no circumstances, have German control or ownership of the Mission in New Guinea. It insisted that the control and ownership must be Australian. As previously stated, the Lutheran Mission has loyally supported the Government in the position it then took up, but the Government has in other cases, e.g., the Liebenzeller Mission at Manus, permitted the old German society to retain control and ownership of its mission.

We find ourselves in an invidious position. We feel as though the Government were no longer behind us when we uphold the necessity of Australian control and ownership of the mission, and we strongly urge the Government to define its attitude with regard to the former German missions in New Guinea.

  1. Is it immaterial to the Government and to the Administration whether the missions in New Guinea are controlled and their property owned by German or Australian societies?
  2. Is it competent for us, the Lutheran Mission, New Guinea, to hand back to the German societies control and property of the mission they previously owned in New Guinea?
  3. Are we perhaps absolutely free from any obligation and are we permitted to deal with the mission, its control and its property, just as we think fit?
  4. Is the Government concerned only about the ownership of the property, desiring it to be held by trustees in Australia or on the field, whilst the control of the Mission as such may be in any hands?

Thanking you in anticipation for kindly going into the above matter and dealing with the questions raised at an early date.

A copy of this Department’s letter of the19th February 1927, and a copy of a communication received from the Government Secretary, Rabaul, in regard to the matter, are attached for your information.

I shall be glad if you will kindly favour me with advice as to the replies that should be furnished to inquiries Nos. (2) and (3) made by the Reverend Mr Thiele, having regard to the conditions of the appointment of trustees (see Gazette extract attached) and to the provisions of Article 438 of the Treaty of Peace.

With reference to inquiries Nos. (1) and (4), can it be considered, again having regard to the conditions mentioned in the preceding paragraph and, particularly, to the powers of the Board of Trustees as defined in the declaration contained in the instrument of appointment, that the Government has a power of direction as to the future control of the properties in question.

By Article 438 of the Treaty of Versailles, it is provided that existing property of Christian missions shall continue to be devoted to missionary purposes. The Allied and Associated Powers are given power to hand over such property to boards of trustees appointed by such Powers. The machinery for giving effect to this article is contained in the German Missions Ordinance 1926, and in pursuance thereof a Board of Trustees has been appointed to hold the property of the abovementioned Missions upon trust to deal with the property in such manner and at such times as the said Board in its absolute discretion thinks fit for the purpose of carrying on or advancing the work and objects of the Missions.

Although the Board has a wide discretion as to the manner in which it may deal with the property, I do not think it has the power to hand over control to another body and divest itself of its responsibility.

Section five of the Ordinance makes provision for the appointment of new Trustees in cases where a Trustee dies or is absent from the Commonwealth or desires to be discharged from the trusts or powers reposed in him.

In the appointment of a new Trustee, the Governor-General apparently has an absolute discretion.

It therefore appears that it is not competent for the existing Board to hand over control to any successors whom it may select.

In answer to question No. (3), attention is invited to the terms of the appointment of the existing Board. Apparently there is no limit to the manner in which the Board may deal with the property of the Missions except that any dealings with the property must be such as the Board consider desirable ‘for the purpose of carrying on or benefiting or advancing or extending or making more effectual the work and objects of the Missions’. Any dealing with the property which was not for any of the purposes above stated would be a breach of trust, but otherwise the Board has a free hand.

Question No. (1) involves a matter of policy. By the terms of Article 438 of the Treaty, it appears, however, that Germany agreed to the creation of Boards for the control of Mission property, and agreed further that the personnel of the Board should be in the discretion of the particular Power concerned.

It would seem that it was contemplated that in making any such appointment, the appointing Authority would give preference to its own nationals. From the point of policy, it is suggested that the reinstatement of purely German control over these Missions might create in the territory an influence inimical to the prestige of the British Administration.

Question No. (4) is also one of policy and is related to Question No. (1). It is suggested that control by a Board appointed by the Governor-General and subject to recruitment at his discretion is the best way from the Commonwealth point of view in which the control of these Missions should be carried on.

It is quite possible, of course, that although the property is nominally controlled by the Board of Trustees, the Board may be so composed as to render itself liable to directions from abroad. It is suggested that this possibility should be guarded against in making any selection of a Trustee to fill any vacancy which may occur on existing Boards.

[Vol. 23, p. 842]

(1) Opinion [Vol. 22, p. 954] not published.