It does not appear from the telegraphic dispatch whether the terms set out are proposals merely, or whether they are the terms upon which the surrender of the German forces in New Guinea has actually been accepted⁽¹⁾

I think that the terms as stated are unduly advantageous to the enemy. I think that the Governor ought to be held as a prisoner of war, and ought not under any circumstances to be allowed to return to Germany. I also think that civil officials whose services are not required, or who refuse to take the oath of neutrality, should not be allowed to return to Germany. Nor am I aware of any sufficient reason for allowing the surrender to be with military honours. The payment of salary to deported civil officers, and travelling expenses of the families to Europe, appears to me unjustifiable.

If the terms mentioned are those upon which the Governor and his forces agreed to surrender and have actually surrendered, different considerations arise. So far as the conditions granted relate to the surrender of the force, and are conditions which the Brigadier had authority to grant, they must be scrupulously observed. I do not think, however, that the Brigadier had authority to promise that any of the enemy’s forces, or civil officers, should be allowed to return to Germany. See Oppenheim, International Law, Volume 2, p. 240; Lawrence, p. 563. I think, therefore, that those conditions are void and may be disregarded. Also that the Brigadier had no authority to pledge the Commonwealth revenue for salaries of civil officers and expenses of their families.⁽²⁾

[Vol. 13, p. 115]

(1) By 30 September 1914 it had become clear that the terms were those of the actual surrender, for on that date Mr Garran, Secretary, Attorney-General’s Department, forwarded to the Secretary, Department of Defence, an opinion [Vol.13, p.l 14], unsigned in the Opinion Book but attributed to Mr Hughes, which reads:

‘As the terms are those on which the surrender has actually taken place, they must be adhered to, so far as they were within the scope of the authority which properly belongs to the officer in command of the capturing forces.

It is stated that no guarantee was given that facilities will be afforded for return to Germany. But apparently an undertaking was given that no obstacle would be raised. I still think that this undertaking was beyond the scope of the Brigadier’s authority. Whether, having been given, it should be ratified, is a question which can stand over until the officers reach Australia and the actual written terms of surrender have been received, and perhaps should then be referred to the Imperial authorities’.

(2) See also Opinion No. 574.