Ministry of Justice, New Zealand

3.1 Introduction

This chapter describes the modern constitutional status of the homelands, and particularly the residual constitutional links in respect of the Cook Islands, Niue and Tokelau.

The constitutional relationship between New Zealand and the six countries studied in this report can be briefly stated. In respect of Fiji and Tonga there is no constitutional relationship, but rather an international relationship between friendly neighbouring sovereign states in conformity with international law and the comity of nations. The same is true of the relationship with Samoa, subject to the special relationship, which is discussed in paragraph 2.6.2.[53]

In respect of the Cook Islands, Niue, and the Tokelau Islands however, there are different considerations, which make it appropriate to describe the relationship as having constitutional elements. In particular, it is necessary to understand concepts fundamental to the historical evolution of the British Empire into the association of independent states known in more recent times as the Commonwealth.

3.2 The Cook Islands and Niue - associated states

The older Commonwealth states (such as Canada, Australia, and New Zealand) evolved as autonomous members of the international community by growth of conventions, advising the Crown, as titular head of the British Empire, that each of these former Dominions would function separately in respect of their interests.

This doctrine of the divisibility of the Crown enabled the position to be reached in 1926 where, in the Balfour Declaration of that year, it could be agreed by all the Prime Ministers that:

'(The Dominions) are autonomous communities within the British Empire, equal in status, and in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations'.

The practice that supported this doctrine was not reflected in constitutional statutes until much later. Yet, in accordance with the widely accepted analysis of the British jurist Albert Venn Dicey, the conventions that gave it operational reality were part of the Constitution. By that analysis, the Constitution was made up of two kinds of rules: rules of law that it was the job of the Courts to enforce, and conventions that were rules that the Courts did not enforce.

This did not mean that the latter were unimportant: to this day the vital principle that the Monarch (in New Zealand the Governor-General) acts in almost all matters only on the advice of responsible Ministers is not a rule of law but rather a convention of the Constitution. Not surprisingly, this arrangement causes much confusion among foreign observers - and even New Zealand inquirers - who are told to disregard apparent legal powers which are explained to have been modified, or even displaced, by unwritten conventions of sometimes mysterious origin.

We are now in a position to understand the concept of the Realm of New Zealand as it is defined in the 1983 Letters Patent Constituting the Office of Governor General of New Zealand. Clause I of this instrument declares the Realm to comprise:

(a) New Zealand; and

(b) The self-governing state of the Cook Islands; and

(c) The self-governing State of Niue; and

(d) Tokelau; and

(e) The Ross Dependency...

Both the Cook Islands and Niue are self-governing states in free association with New Zealand whose respective Constitutions expressly vest full legislative powers exclusively in their legislatures.

The New Zealand Parliament has thus ceased to have power to make law of any kind for the Cook Islands and Niue.[54] Even if the New Zealand Parliament were to repeal or amend the New Zealand statutes conferring the Constitutions of 1965 and 1974 on the Cook Islands and Niue, those statutes and constitutions would continue as part of Cook Islands and Niue law, even though they ceased to be part of New Zealand law.

There are no matters on which the Cook Islands and Niue legislatures cannot make laws, although special procedures (special voting majorities in the legislatures, extended time-scales for legislation, and referenda) are required for modification or amendment of certain designated fundamental elements of the Constitutions.

Constitutional links nevertheless remain with New Zealand. First, the Queen in right of New Zealand continues to be Head of State of both the Cook Islands and Niue. In the Cook Islands Her Majesty is represented by the Queen's Representative appointed on Cook Islands' advice, and in Niue by the New Zealand Governor-General.

Secondly, and of great importance to the island populations, New Zealand citizenship is retained with full rights of access to New Zealand. Thirdly, a peculiar provision in the Constitutions of the two Associated States declares that the responsibilities of Her Majesty the Queen in respect of external relations and defence remain unaffected by the relocation of law-making power in the respective legislatures. That provision was, in the early years after self-government, the subject of some misunderstanding in New Zealand and internationally. Now it is widely understood that the effective source of advice to Her Majesty the Queen in right of New Zealand on Cook Islands and Niuean matters are Her Cook Islands and Niuean Ministers. As with the emergence of the older Commonwealth States as autonomous members of the international community, this position was reached by the evolution of constitutional conventions.[55]

The Cook Islands Constitution came into force on 5 August 1965 as a result of the Cook Islands Constitution Act 1964 of the New Zealand Parliament. The New Zealand Act contained the elements of the associated state model to which reference was made in the preceding chapter. Specifically it declared that:

Section 3: The Cook Islands shall be self-governing.

Section 4: The Constitution set out in the Schedule...shall be the supreme law of the Cook Islands.

Section 5: Nothing in this Act or in the Constitution shall affect the responsibilities of her Majesty the Queen in right of New Zealand for the external affairs and defence of the Cook Islands, those responsibilities to be discharged after consultation by the Prime Minister of New Zealand with the {Prime Minister} of the Cook Islands.[56]

Section 6: Nothing in this Act or in the Constitution shall affect the status of any person as a...New Zealand citizen...

Ten years later, the Niue Constitution Act 1974 (NZ) followed a similar pattern to bring the Constitution of Niue into force on 19 October 1974. It set out the following elements of the association with New Zealand:

Section 4: The Constitution set out (in the Schedule)...shall be the supreme law of Niue.

Section 5: Nothing in this Act or in the Constitution shall affect the status of any person as a...New Zealand citizen...

Section 6: Nothing in this Act or in the Constitution shall affect the responsibilities of Her Majesty the Queen in right of New Zealand for the external affairs and defence of Niue.

Section 7: It shall be a continuing responsibility of the Government of New Zealand to provide necessary economic and administrative assistance to Niue.[57]

Section 8: Effect shall be given to the provisions of sections 6 and 7 of this Act...after consultation between the Prime Minister of New Zealand and the Premier of Niue, and in accordance with the policies of their respective Governments...

In relation to Section 6 of the Act just quoted, it is important to stress that, as with the Cook Islands, the responsibilities of New Zealand for the external affairs and defence of Niue do not confer on the New Zealand Government any rights of control. Full legislative and executive powers, whether in those fields or in any others, are vested by the Constitution in the legislature and Government of Niue. Where the New Zealand Government exercises responsibilities in respect of external affairs and defence, it does so in effect on the delegated authority of the Government of Niue.

On 10 November 1988, the New Zealand Government lodged a Declaration with the Secretary-General of the United Nations concerning the relationship of the New Zealand treaty-making power to the self-governing States of the Cook Islands and Niue. The Declaration recited that the Governments of the Cook Islands and Niue have 'exclusive executive and legislative competence to implement treaties in the Cook Islands and Niue'. It also stated that those Governments had requested that future New Zealand treaty actions not extend to the Cook Islands or Niue 'unless the treaty is signed...expressly on behalf of the Cook Islands or Niue'.[58]  The Declaration reversed the previous understanding that New Zealand treaty action applied to all the Realm of New Zealand unless any part was specifically excluded.

3.3 The special relationship between Samoa [59] and New Zealand

The enactment of Western Samoa's Constitution in 1962 meant, of course, that from that date the relations between Western Samoa and New Zealand were those between independent and sovereign states. The norms and practices of international law and comity thus superseded the constitutional relationship under which New Zealand could exercise executive and legislative responsibilities.

The two countries entered into a Treaty of Friendship in 1962. In 1982, circumstances arose that demonstrated that the special relationship between Western Samoa and New Zealand was more than a rhetorical flourish. It involved expectations and obligations which, while not fettering the legislative powers of the respective countries, might certainly require an unusually close consultation.

In July 1982, the judicial committee of the Privy Council - New Zealand's ultimate appellate court - delivered its decision in the case Lesa v Attorney-General [1982] 1 NZLR 165. The case concerned an argument that the legislative fiction under which Western Samoa had been treated as if it were part of New Zealand had the effect of giving persons born in Western Samoa between 1928 and 1949 the status of New Zealand citizens. The argument had been rejected by New Zealand Courts, but was upheld by the court in London. The effect of the decision was that as many as 100,000 Western Samoan citizens could potentially enter and stay in New Zealand as of right as full New Zealand citizens. The response of the New Zealand Government to the situation thus created is found in the Attorney-General's statement to the New Zealand Parliament that:

'...in view of the close relationship between New Zealand and Western Samoa, and because the Privy Council's decision also had implications for Western Samoa, even though it related solely to New Zealand law, the Government, rather than bring down instant legislation, decided to consult the Government of Western Samoa to try to find a response that both countries could accept. We did not want New Zealand simply to impose its ideas and pursue its interests unilaterally. So in the spirit of the 1962 Treaty of Friendship between Samoa and New Zealand we sat down to talk to each other...From all these talks emerged the protocol that I signed for New Zealand on 21 August 1982'.[60]

All Western Samoans in New Zealand at the date of the protocol were granted the right to become New Zealand citizens on application. Special provision was made for some other categories, while the general separation of the citizenship's of Western Samoa and New Zealand was restored. This compromise was embodied in a Protocol to the 1962 Treaty of Friendship, in the preamble to which the two Governments set out some understandings, among which were the following:

'Reaffirming that their relations are founded upon sovereign equality and continue to be governed by a spirit of close friendship...Recognising that the special relationship between New Zealand and Western Samoa required that issues affecting the two countries and their citizens should be resolved on a co-operative basis....Recognising further that the ties of history, friendship and law between New Zealand and Western Samoa are such as to give the citizens of Western Samoa a claim to special treatment under the law governing citizenship...'[61]

3.4 Modern regional relations

The South Pacific Forum.[62]  The Forum is an annual gathering of the Heads of Government of the independent and self-governing countries of the South Pacific. It was established in 1971 as a result of the perceived need for a regional perspective on issues affecting the countries in the area, and for a collective regional voice of which the international community might take note.

The Forum quickly became recognised as the principal political organisation in the South Pacific, and the South Pacific Commission, formed in 1947 under the Canberra Agreement[63] by the then colonial powers, now confines itself to advisory activities in social and economic development.

The Forum reaches decisions by discussion and consensus, preferring to avoid formal votes. New Zealand and Australia each meet just over a third of the regular budget of the Secretariat, with the island countries together meeting the remaining third.

All six countries whose New Zealand-based populations are the subject of the present study are full members of the Forum. A Forum Secretariat, based in Suva, was established in 1972 to act both as a secretariat, and to implement the policies and programmes agreed by the leaders.

Other specialist regional organisations have subsequently been created to deal with particular matters of interest: the Forum Fisheries Agency (FFA) and the South Pacific Regional Environmental Programme (SPREP) are examples.

The Forum is to be known as the "Pacific Islands Forum" from the next Leaders Meeting in 2000 in order to more accurately represent the present day membership.

Other Significant Institutional Arrangements. Two other informal institutions worthy of note as reinforcing the affinities between the South Pacific Island States and New Zealand concern the operation of the respective legal systems. First, over a long period all the states have actively sought and welcomed the participation of New Zealand judges in their judicial systems, particularly at the appellate level. When added to the role of New Zealand law schools in the training of lawyers from the states, this has maintained a degree of contact, and jurisprudential harmony, between the systems - notwithstanding important differences in their constitutional and legislative regimes.

A second point of contact has been an annual Pacific Island Law Officers' Meeting (PILOM) which New Zealand first attended, somewhat belatedly, in 1988. The main purpose is to exchange views and formulate recommendations on a wide range of practical matters of common interest including legal training, legislative drafting, the role of law officers, and access to legal resources.[64]

3.5 The constitutions of Tonga and Fiji

It has already been observed that Tonga and Fiji are independent states whose relations with New Zealand are of an international, and not a constitutional, character.

The Constitution of Tonga was enacted in 1875, and is often credited with limiting foreign influence in the Kingdom of Tonga to a British Protectorate proclaimed in 1900 under a Treaty of Friendship. A leading authority ascribes to King Tupou I the intention of setting up a centralising, written constitution so as to deprive colonial powers in the Pacific of the law and order excuse for annexation.[65]

The latest Constitution of Fiji was enacted by the Constitutional Amendment Act 1997 (Fiji) and came into force on 27 July 1997. It represented an endeavour to transcend the racial tensions that led to, and arose from, the 1987 coup d'etat and the subsequent attempts to protect the position of the indigenous Fijian population by discriminatory constitutional legislation. A distinguished Maori and New Zealand leader, Sir Paul Reeves, chaired the Fiji Constitution Review Committee the recommendations of which formed the basis for the new Constitution.[66] At the time of publication of this report the Constitution has effectively been set aside as a result of the crisis in Fiji which has been going on since 19 May 2000. This situation led to the President stepping aside, the assumption of executive authority by the Commander of the Fiji Military Forces and the imposition of martial law. The nature of the future constitutional framework for Fiji is not currently clear.

Footnotes

53. As in the preceding Chapter, it is not intended to set out the range of international obligations that subsist between New Zealand and the independent States of Fiji, Tonga and Samoa, or the associated States of the Cook Islands and Niue. Some of these are referred to in the Annotated Bibliography, see note 18 above.

54. See, Cook Islands Constitution Act 1964, No.69 and Niue Constitution Act 1974, No.42. In their original forms the Constitutions did contemplate that the New Zealand Parliament might legislate in respect of the associated states where the legislatures of those states expressly so 'requested and consented'. However, the Parliament of the Cook Islands has subsequently, and in accordance with the special procedures required, amended the Constitution so as to remove even that ability.

55. For official statements of this position, see (for the Cook Islands) the prefatory note to the Constitution of the Cook Islands appearing in the Laws of the Cook Island 1994 (Volume 1, page 165). For Niue, the Report Submitted by the Government of Niue under the International Covenant on Economic Social and Cultural Rights, Niue, 1992. For a discussion of the growth of the convention as to foreign affairs and defence, see Alex Frame, "The External Affairs and Defence of the Cook Islands - the 'Riddiford Clause' Considered," Victoria University of Wellington Law Review, Vol.17 (1987) p.141-151.

56. This is sometimes referred to as the 'Riddiford Clause', after the Chairman of the Select Committee of the New Zealand Parliament in which it was devised. For the background, and clear evidence that New Zealand Parliamentarians thought at the time that the New Zealand Parliament would, under it, retain legislative power in foreign affairs and defence matters, see Alex Frame, The External Affairs and Defence of the Cook Islands - the 'Riddiford Clause' Considered, Victoria University of Wellington Law Review, Vol.17 (1987) p.141-151. As is there pointed out, however, the argument proved untenable in the face of the exhaustive and exclusive legislative powers conferred by the Constitution, as a matter of supreme Cook Islands law, on the Cook Islands legislature.

57. This provision was absent from the earlier Cook Islands legislation.

58. The Declaration was circulated to all members of the United Nations as UNGA LE 222 New Zealand.

59. From 4 July 1997, and the coming into force of Constitution Amendment Act (No.2) 1997 (Samoa), the term Samoa replaced the expression Western Samoa in the Constitution and in all other legislation. The older form has been employed in this report where the reference is historical.

60. NZPD, 24 August 1982, Hon. J.K.McLay (Attorney-General).

61. Protocol to the Treaty of Friendship Between the Government of New Zealand and the Government of Western Samoa, done at Apia 21 August 1982.

62. A useful publication explaining the composition and roles of the Forum and associated bodies is The South Pacific Forum: Regional Co-operation at Work, Information Bulletin No.56, January 1996, Ministry of Foreign Affairs and Trade, Wellington.

63. For an early indication of New Zealand's approach in the lead-up to Canberra, and that its attitude to the prospect of responsibilities in the South Pacific was becoming more defensive, see Carl Berendsen's letter to Alister McIntosh of 10 December 1943, in Ian McGibbon (ed.), Undiplomatic Dialogue, Auckland University Press, 1993, at page 44 and 45.

64. For an account of PILOM's role, which noted New Zealand's earlier absence from the meeting, see New Zealand Law Journal (1987) at page 319.

65. Sione Latukefu, Church and State in Tonga, Australian National University Press, Canberra, 1974, esp. Chapter 11 at page 204.

66. For papers prepared for the Commission, see Fiji and the World, ed. B.Lal and T.Vakatora, University of the South Pacific, 1997. Another distinguished New Zealand jurist, Alison Quentin-Baxter, served as principal legal adviser to the Commission.