Opinion Number. 908



The Secretary, Department of Defence

The question has been referred for opinion as to whether there is any objection to the course recommended by the British Administrator of the Colony of German New Guinea set out in the following memorandum:

I beg to bring under your notice the following facts regarding the estate of A.B.C, late of Ablingi, New Britain, Planter, deceased.

One of the objects of my trip to Ablingi a few weeks ago was to inquire into and inspect the Ablingi Plantation which is indebted to this Administration for nearly £4,000.

Major Newport (Director of Agriculture) thoroughly inspected the plantation (copy of his report herewith attached).

Captain Walker the Government Auditor audited the books, and the result convinced me of the necessity of making an early effort to relieve the Administration of any further responsibility with this estate.

When C. died the late Sir Samuel Pethebridge(1) took possession evidently with the intention of confiscating the estate, which I am advised would not be legal under existing conditions.

Administration occupies the position of a Curator of Intestate Estates. It has advanced about £4,000 to the estate, and when the estate is sold or becomes productive Administration expects to reimburse itself the amount advanced.

I submit that the greatest reward Administration can expect is the return of its own money plus interest, with no fee to cover administration nor the possible expenses and mistakes our peculiar methods in the Government Stores lead me to realise may be expected.

Administration is really carrying on this estate for the benefit of C.'s beneficiaries, who will, one day, claim the estate.

When Administration took possession of Ablingi Plantation the estate was practically insolvent and could have been purchased in an open market for a nominal sum.

Administration has cared for and nursed the estate with the result that it is today worth more than the money owing to Administration, and I have not the slightest doubt that the estate will realise enough to clear all liabilities and leave a surplus to be placed in trust for the beneficiaries after the war.

I recommend that the Ablingi Plantation should be well advertised for sale by public tender at an upset price of £5,500.

I believe that a local purchaser may be found but am anxious to attract Australian capital and Australian planters into these possessions.

If the Minister approves of this recommendation I request particulars of the estate be advertised in the leading papers of Australia, pointing out that this is a unique opportunity of stepping into an excellent plantation, rapidly approaching the reproductive stage and capable of considerable extension.

I suggest that military districts in each State be given a copy of the attached reports by Lieut.-Col. Mackenzie and Major Newport (Director of Agriculture) for the benefit of inquirers in that State.

I suggest the tenders should be returnable to Defence Melbourne or here on 31 December next. If it were possible for Administration to purchase this estate I believe it would soon be a source of considerable profit, and I would personally recommend the purchase except for the reason that I think the state should not compete with private enterprise in such a matter as this.

Attached please find reports by Department of Lands, Department of Agriculture, Government Auditor, and copy of an Order appointing a manager for Ablingi Plantation.

The report of Lieut.-Col. Mackenzie, therein referred to, contains the following: The land papers of C. have been searched for several times since the beginning of the British occupation, but they have not been found, and they are, together with several other land papers, officially regarded as missing. It is not therefore possible for me to certify what title C. legally has.

The report also sets out that the late Administrator in 1915 wished to take the site of the plantation in question as a Government station and seat of administration of South New Britain, and 'was under the impression that C. by his action in attempting to escape from the Commonwealth had rendered his property liable to be confiscated'. Lieut.-Col. Mackenzie advised that such an attempt did not render his property liable to be confiscated, but on 17 September 1915, as Judge of the Central Court, he made an Order reciting that C. died on 13 March 1915 'in attempting to escape from Australia in breach of his parole', that he 'had acquired certain inchoate possessory rights and claims to certain land at Ablingi', and that 'the said estate, in consequence of the act of the said B.C. in so breaking his parole, is now in accordance with military law in the control ... of the British Military Administration, and subject to all rights, powers and penalties of confiscation, should the British Administration elect to exercise the same', and that 'without prejudice to such rights and powers of confiscation it is deemed advisable to take temporary measures for the carrying on of the estate', and it appointed Hans Schmid-Burgh to manage and carry on the business.

This Order was headed 'In the Estate of B.C. . . . deceased intestate', and it is suggested that Administration occupies the position of a Curator of Intestate Estates, but there does not seem to be any proof of intestacy.

On 12 December 1917, the Acting Judge of the Central Court made an Order charging C. 's estate with the maintenance of his illegitimate child by an aboriginal woman.

At some time unspecified an agreement was entered into between the Administrator and Schmid-Burgh for the carrying on of the estate. There is no copy of this in the file, but it is stated that under it the Administrator from time to time advanced sums of money for the development of the property.

Now that nearly £4,000 has been spent, it is desired to relieve the Administration of further responsibility, and it is suggested to sell the estate and reimburse Administration the sum expended, holding any surplus for C.'s beneficiaries after the war.

The whole matter presents great difficulties, particularly in view of the differing views taken by the Administration of this estate from time to time. The rights and duties of a military occupier are not the subject of definite rules of law, but are matters of dispute between writers of textbooks, and in practice have varied according to different individuals, and at different times and in different circumstances. I do not think anyone ever contemplated a conqueror in military occupation, conserving the estates and supporting the children of his enemies at his own expense. As regards exercising powers of a Curator of Intestate Estates, it must be remembered that the occupier's courts are not the permanent courts, and that though they may administer the conqueror's justice, and their decrees may be very efficacious as regards matters which are completed during the occupancy, there

is no reason to suppose that if the territory occupied should be handed back to the dispossessed nation, the decrees of these courts as regards continuing matters such as the possession of land, would be treated as having any validity (Hall, International Law, 4th edn, pp. 505-9). If the Colony of German New Guinea were handed back to the Germans, I think that, in the absence of express stipulation to the contrary, the German Government would regard as null and void any sale such as is suggested. If the Colony is retained by the British Government, any reasonable action would probably be validated. If it is handed over to any other Government, I think the question of validity of dispositions one which ought to be settled by the terms of treaty.

As regards the express question asked as to whether there is any objection to the course recommended, I think there are great objections:

First: Until it is definitely decided what is to become of this German Colony, it does not appear to be advisable to invite some Australian citizen to pay £5,500 for a title the validity of which is so problematical. If the Government were to advertise a property for sale, I think that a purchaser would have a right to expect that the Government could and would safeguard his interests; and there can be no assurance of this.

Second: As regards the proposed sale purporting to be, not in derogation of C. 's rights, but a sale of them I do not think that, as those rights are described by the intending vendors as 'certain inchoate possessory rights and claims' and are admittedly based on papers 'officially regarded as missing', it is at all likely that anyone will be found to pay £5,500 for such an insubstantial title.

Third: I do not think that the procedure adopted of a military occupier's court purporting to act as Curator of Intestate Estates would be held to operate to dispose of title to land.

On the whole I think the first position taken up of confiscating the estate for breach of parole, and because it was required for administrative purposes was a surer foundation of title than the later expedient adopted. For, although confiscation would certainly have been regarded as void if the German Government came back, in the absence of treaty stipulation to the contrary, so I think would the proposed sale under order of the court be regarded as void. And, apart from the resumption of control by the German Government, I think the confiscation can be based on surer ground than the curatorship. Wheaton's Elements of International Law, 5th edn, pp. 532-3, says:

Article 46 of the Hague Regulations demands respect on the part of a belligerent for the personal and proprietary rights of the inhabitants of occupied territory. But this general provision is subject to various exceptions; for 'by the prohibition of confiscation it is only meant that private property cannot by any regulation of the invader be taken from its owner for no other reason than that he is an enemy' (Westlake, International Law, 1913, Vol.11, p. 103). These exceptions are due to considerations of 'military necessity', and the chief are: . . . confiscations, seizures, and fines by way of penalty for offences against the occupying commander's martial law regulations. Private property will not be regarded as being exempt from the operations of war if its owners do not obey the laws of war.

Wheaton, at pp. 480-1, treats of breach of parole by a prisoner of war and says he 'forfeits his right to be treated as a prisoner of war, and may be brought before the Courts'. At pp. 528-9 he treats of 'war crimes', including the doing of anything forbidden, or the omitting of anything ordered to be done in the martial law proclamations or regulations of the occupying commander. He says:

Infringements of this martial law are regarded as 'war crimes'. As a rule no penalty should be inflicted on offenders without previous inquiry and condemnation by a court-martial consisting of a number of officers convened for the purpose.

Pitt Cobbett, Leading Cases on International Law, 3rd edn, Part II, at p. 114 says:

When punishment . . . has been inflicted for such offences (i.e. 'war crimes') it would seem that it is strictly not vacated by the restoration of peace.

Although confiscation of C. 's property might be considered a severe penalty for his war crime of breach of parole, it would not be illegal according to international law. C.'s death in the attempt to escape, by suffocation while hiding in a boat, was an incident of his attempt, but was not a penalty. His death left the only penalty applicable one against his property. That property in any case would have wasted in the absence of someone to carry it on, and it was required for administrative purposes. Confiscation in these circumstances, though it would not be recognised by the German Government, would make a clearer basis of title than the proposed sale.

As £4,000 has been sunk in the property, and it is desirable to get it back, I should advise that a condemnation by court-martial should be obtained, and, if, as stated in the memorandum, a local purchaser can be found, I should advise selling it to such purchaser. If any sum in excess of moneys expended is received, the surplus could, as a matter of grace, be applied towards the maintenance of C.'s child, or held for his heirs. This course would not be without objection, but, in my opinion, would be less objectionable than the course proposed.

[Vol. 16, p. 142]

(1)Administrator of German New Guinea, January 1915--October 1917.