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Imagereal Capture HONOURS AND ARMS: LEGAL AND CONSTITUTIONAL ASPECTS OF PRACTICE CONCERNING HERALDRY AND ROYAL HONOURS IN NEW ZEALAND G A Macaulay New Zealand has progressed from colony to dominion to fully inde- pendent realm, but several aspects of official practice in relation to sym- bolic and ceremonial matters appear both to ignore resultant constitutional realities and to be in conflict with the current law of New Zealand. The Crown on whose behalf the Treaty of Waitangi was signed was the Crown of the United Kingdom' and until this century there was only one indivisible Crown in the British Empire. However, the exercise of greater self-government by the dominions and the changes in their relationship to the United Kingdom precipitated by the First World War eroded the validity of the doctrine of the indivisibility of the Crown. Lord Denning declared in 1982 that by at least 1926 (the year of the Balfour Declaration) the Crown "was separate and divided for each self-governing d~minion";~and the Statute of Westminster 19313- de- spite its preamble which recited that the several dominions were united in their allegiance to one Crown - gave legislative recognition to the reality of separate Crowns for each of the self-governing dominions which adopted the Statute as part of their municipal law, as New Zealand even- tually did in 1947.4 As early as 1936 there was the curious phenomenon that for a few days there were two Kings in the Empire as the abdication of Edward VIII took effect at different times in different dominion^;^ and any of the monarchical realms of the present Commonwealth, including the United Kingdom, could vary the succession or even adopt a republican constitution without necessarily affecting the constitution or monarchy of any other? "they retain the same monarch, but that does not mean the same monarchy" .7 The full implications of the division of the Crown have been generally ignored, especially in speeches in the presence of the Sovereign (even if they have been appreciated), and did not begin to be reflected in the Sovereign's titles in each realm until 1952.8 The English version of the Treaty styles Queen Victoria "Queen of the United Kingdom of Great Britain and Ireland"; in the Maori version she is simply "Kuini o Ingarana" (ie Queen of England). H V Evatt, The Royal Prerogative (1987) (commentary by L Zines) C25. 22 Geo 5 c 4 (UK). By the Statute of Westminster Adoption Act 1947. N Mansergh, The Commonwealth Experience (1969) 242; E C S Wade and G G Phillips, Constitutional andAdministrative Law (9thedn) 395; E C S Wade and A W Bradley, Constitutional Law (8th edn 1970) 442. The South African government took the view that the abdication took effect on 10 December 1936 when the Instrument of Abdication was signed; United Kingdom legislation on 11 December gaveeffect to the Instrument in the United Kingdom, Canada, Australia, and New Zealand; an Act of the Irish Free State provided that the abdication should take effect immediately on its passage on 12 December. E C S Wade and A W Bradley, op cit, above note 5, at 451-452. L Zines, Constiturional Change in rhe Commonwealth (1991) 28. The titles to be adopted in each realm were agreed upon at the Commonwealth Prime Ministers' Conference held in London, December 1952 (N Mansergh ed, Documents and Speeches on British 382 Canterbury Law Review [Vol.5, 19941 A proclamation under New Zealand's Royal Titles Act 1953 defined the Queen's titles as "Elizabeth 11, by the Grace of God of the United Kingdom, New Zealand and Her Other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith".9 However, the constitutional position was better indicated more than twenty years later when a new act, the Royal Titles Act 1974, revised Her Majesty's titles to "Elizabeth the Second, by the Grace of God Queen of New Zealand and Her Other Realms and Territories, Head of the Commonwealth, Defender of the Faith". That the phrase "and Her Other Realms and Territories" is merely descriptive (and should not be interpreted as creating an essential link between the Crown of New Zealand and the Crown of the United Kingdom or elsewhere) is given emphasis by its omission, in terms of the Citizenship Amendment Act 1979, from the oath of allegiance prescribed for new citizens; and New Zealand citizens while remaining British subjects in United Kingdom law are no longer so described in New Zealand law. In short, there is no supranational Crown in the Comm~nwealth.'~The Queen is but one natural person who holds a number of different 'offices' concurrently as Head of State of the several countries in the Common- wealth of which she is Sovereign: the concept of 'one Queen, many Crowns' has been aptly described as "a new Athanasianism"," and "it is clear that the former one and indivisible Crown is now disintegrated into its various national components" .I2 ARMORIALENSIGNS FOR NEWZEALAND The separation of the Crowns of the United Kingdom and New Zealand has yet to be given satisfactory recognition in legal enactments in New Zealand concerning Royal and national emblems. The Union with Ireland Act13 of the Parliament of Great Britain (part of the statute law of New Zealand until at least 1947 and possibly until the passage of the Imperial Laws Application Act 1988) includes the follow- ing: l4 ... the royal stile and titles appertaining to the imperial crown of the said United Kingdom [of Great Britain and Ireland] and its dependencies, and also the ensigns, armorial flags and banners thereof, shall be such as his Majesty, by his royal proclamation under the great seal of the United Kingdom, shall be pleased to appoint. Accordingly, the arms of the Sovereign of the United Kingdom, with their familiar lion and unicorn supporters, took their present form by proclamation in 1837.15 These arms by definition relate only to the United Commonwealth Affairs 1931-1952, vol 11, (1 953) 1293. 9 Proclamation dated 28 May 1953 and published in The New Zealand Gazette, 29 May 1953. 10 E C S Wade and G G Phillips, op cit, above note 5, at 400. 11 "Yet while the divisibility of the Crown was no longer to be disputed, the Commonwealth of sovereign, equal states found its creed of unity 'in a new Athanasianism of many crowns in one monarchy' [the phrase is that of Mr Percival Spear]". N Mansergh op cit, above note 8, vol I, at xxxviii. 12 L Zines, op cit, above note 7, at 31. A curious corollary of the division of the Crown is that none of those in the line of succession to the Crown of New Zealand are its subjects; the Prince of Wales has neither New Zealand citizenship nor even the automatic right of residence in New Zealand. The best current account of the constitutional role of the Crown in New Zealand, including a treatment of the divisibility of the Crown, is to be found in P A Joseph, Consritutional and Administrative Law in New Zealand (1993). 13 39 & 40 Geo 3 c 67. 14 From the First Article of the Union. 1s The London Gazette, 1 August 1837,2001,proclamation issued shortly after the accession of Queen Victoria; previous versions of the Royal arms included reference to her predecessors' status as Honours and Arms: Legal and Constitutional Aspects of Practice Concerning Heraldry and Royal Honours in NZ Kingdom and its dependencies and are thus clearly not the arms of the Sovereign of New Zealand. As no other arms have been explicitly defined for the Sovereign of New Zealand, it is not clear what "the Coat of Arms of Her Majesty" is which was given statutory protection by New Zealand's Flags, Emblems, and Names Protection Act 198 1.I6 A different section of the same act protects a number of "State em- blems" including "the Coat of Arms of New Zealand"." That te? presumably refers to the device first defined by Royal Warrant in 19 11 with 'Zealandia' and a Maori chief as supporters.18 However, a Royal Warrant is not a proclamation so the arms would appear to be a legal nullity, not having been brought into existence by the means prescribed by statute.19 Since 1911 there have been two developments of significance in the use of the arms of New Zealand. The first was in 1956 when the arms were redrawn in their present form (with a crown rather than a demi-lion crest above the shield and New Zealand rather than Onward as the motto beneath the shield) and the second in 1962 when it was announced that the Queen had 'adopted' a 'personal flag' for use in New Zealand (a banner of the New Zealand arms with the addition in the centre of a crowned 'E' within a wreath of roses).'O The 1962 'personal flag' has been flown as a banner during Her Maj- esty's visits to New Zealand in 1963 and subsequently, in place of the banner of the Royal arms as used in England (often but incorrectly called 'the Royal standard') which was used during the Royal Visit of 1953-54. A banner is a rectangular flag bearing the design of a shield across its whole surface, and a shield bearing the design of the 1962 flag is attached to the roof of the Queen's car during Royal visits. In neither 1956 nor 1962 was a Proclamation or Royal Warrant em- ployed, nor does any sort of announcement appear to have been gazetted. However, it may be argued that, as New Zealand was no longer 'a dependency of the United Kingdom', especially in consequence of the enactment of the Statute of Westminster Adoption Act 1947 of the New Zealand Parliament and the New Zealand Constitution (Amendment) Act 1947 of the United Kingdom Parliament,'l the arms of 1956 and the 1962 'personal flag' and the shield derived from it were new creations under the Royal Prerogative of the Crown of New Zealand.
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