A copy of the actual terms of capitulation, as signed by the late Acting Governor and by Colonel Holmes, together with reports by Colonel Holmes, is forwarded by the Minister for Defence for advice.

Clause 4 of the terms of capitulation provides that:

Upon the said Acting Governor giving his parole to take no further part directly or indirectly in the present war, no obstacle will be placed in the way of his returning to Germany. Such parole shall not prevent the said Acting Governor from tendering to the Imperial Government at Berlin such advice as he may deem proper with regard to terms of peace.

Clause 10 provides that civil officers not retained in their positions, and those who refuse to take the oath of neutrality, 'will be deported to Australia, but will have no obstacle placed in the way of their thence returning to Germany as soon as is possible'.

In his dispatch of 23 September, Colonel Holmes says with respect to clause 4 that the Governor-

distinctly understands that whether he gives his parole or not he is to be deported to Australia, and no assurance or promise has been given him that his departure thence to Germany will be in any way facilitated. On the contrary he was informed, and he distinctly understands, that he will most likely be detained in Australia for some considerable time. Moreover it is doubtful whether he will accept the alternative of giving his parole, in which case the condition as to his returning to Germany is a dead letter.

The Governor is not a soldier, and has had no military training whatever; he is purely a civil administrative official. As regards clause 10, Colonel Holmes says in the same dispatch:

Although I have agreed to a provision that no obstacle shall be placed in the way of their return to Germany, no assurance has been given that any facilities will be afforded them to do so; indeed they have been clearly warned that this is unlikely, and that they may have to remain in Australia for some time.

I understand that since coming to Australia the Governor has given his parole; and that he and some fifty of the civil officers now in Australia claim the right to depart, with salary and expenses.

In my opinion, Colonel Holmes had no authority to promise this, and it does not bind the Commonwealth authorities.

An addendum to the terms of capitulation is as follows:

The Contracting Parties further agree that all Civil Officials whether they take the oath of neutrality or not be entitled to receive at least their three months' pay from 1st October 1914, out of the Funds of the Colony, and also an advance on travelling expenses for returning home according to the Regulations in force under German rule. It is further agreed that they shall have proper facilities for arranging their personal affairs in the Colony.

The Governor promises that the amounts expended under this head will be refunded by the German Imperial Government, out of the Yearly Colonial Subsidy. With regard to this addendum Colonel Holmes says in his dispatch of 4 October:

I found on receiving the list of officials that the amount claimed was so exorbitant that I would be left with insufficient funds to carry on the Administration, I have therefore advised the Governor that it will be a matter of impossibility to grant the loan in question and requesting him to make his own arrangements in this matter.

Colonel Holmes encloses a copy of his letter to the Governor, pointing out that at the time of signing the addendum he was unaware of the amount of money which would be handed to him, and was not furnished with a list of the officials concerned, or the amount involved; that he now found that the moneys of the Colony in his hands amounted to only M331,340; whilst he had been furnished with a list of 173 officers whose three months' salary and expenses amounted to M848,842, and that the proposed advance was therefore impossible.

It is evident, therefore, that Colonel Holmes regards himself as relieved from his agreement to advance any part of the salaries and expenses out of the Colony's funds on account of the inadequacy of the funds to meet more than a fraction of the amount.

If any such advance were made, I think it extremely probable that the German Government would repudiate the Governor's authority to promise repayment.

I think that the agreement on this point should be construed as conditional on the moneys in hand being sufficient to defray the amounts and leave enough for the immediate needs of administration; and also that-whether or not it was within the scope of Colonel Holmes' authority to agree to the advance-it was not, presumably, within the scope of the Governor's authority to promise repayment by the German Government, and, therefore, that it imposes no obligation on the Commonwealth until ratified by the German Imperial Government.

I would suggest a telegram to the Secretary of State for the Colonies to the following effect:

In written terms of capitulation German New Guinea, signed by Brigadier Australian expeditionary troops and by Governor, it was agreed by Brigadier that Governor and civil officials should be sent to Australia and that no obstacle would be placed in way of their return to Germany. Also that civil officials dispensed with should receive out of Colony's funds to be handed to him three months' salary and advance of travelling expenses for returning home under German Regulations and Governor promised refund by German Imperial Government out of Colonial Subsidy. Brigadier states that though he agreed no obstacles would be placed he did not promise facilities and that in fact they were at the time verbally informed and they understood clearly that they might be detained in Australia for some time. Also when Colony's funds were handed over he found cash was only 330,000 marks and expenses for list of 173 officers furnished would be 848,000 marks; he then informed Governor that advance was impossible and he must make his own arrangements.

Governor and fifty officers now in Australia claim permission to leave for Germany and salary and expenses amounting to £13,800. I am advised that Brigadier had no authority to promise that no obstacle would be offered to return also that German Imperial Government not bound by Governor's promise to refund and therefore no obligation to advance money unless ratified by Germany and then only so far as fund named reasonably permits. My Government strongly opinion Governor and officers should not be allowed to leave Australia and propose to act accordingly unless you instruct otherwise.⁽¹⁾⁽²⁾

[Vol. 13, p. 106]

(1)On 18 November 1914 the secretary of State for the Colonies replied in the following terms[Vol.13,attachment to p.114]:

'with reference to your telegram 30th October I am advised that it was within the competence of the Brigadier-General to grant condition that no obstacle would be placed in way of return of ex-governor and civil officials of German New Guinea to Germany and that in circumstances it can hardly be repudiated. Brigadier however had no power to promise payment of salary or advances of travelling expences. His Majesty's Government propose therefore if your Ministers concur to apply to Government of Germany through government of United states for amount involved before any payment is made'
and on 23 November 1914 this reply was conveyed to the Secretary, Department of Defence, by Mr Garran,Secretary, Attorney-General's Department, with the intimation that he was'...recommending to the Attorney-General that proposed application to German Government be concurred in'.

(2)See also Openion No.564

(3)This openion is unsigned in the Openion Book, but it is attributed to Mr. Hughes.