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Contextualising the Construction of the New Zealand Nation-State A London School of Economics and Political Science Becoming National: Contextualising the Construction of the New Zealand Nation-State Benjamin Yong A thesis submitted to the Department of Law of the London School of Economics for the degree of Doctor of Philosophy, London, September 2008 UMI Number: U613417 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a complete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion. Dissertation Publishing UMI U613417 Published by ProQuest LLC 2014. Copyright in the Dissertation held by the Author. Microform Edition © ProQuest LLC. All rights reserved. This work is protected against unauthorized copying under Title 17, United States Code. ProQuest LLC 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 48106-1346 H6S.6 S U°\ SSLS 1 Declaration I certify that the thesis I have presented for examination for the PhD degree of the London School of Economics and Political Science is solely my own work other than where I have clearly indicated that it is the work of others (in which case the extent of any work carried out jointly by me and any other person is clearly identified in it). The copyright of this thesis rests with the author. Quotation from it is permitted, provided that full acknowledgement is made. This thesis may not be reproduced without the prior written consent of the author. I warrant that this authorisation does not, to the best of my belief, infringe the rights of any third party. Abstract Much legal literature on constitutional change in New Zealand presumes that the NZ state has been transformed from a dependent British colony into an independent, liberal nation-state. However, this nationalist narrative is a recent development, and is only one of three narratives of constitutional change, the other two being a ‘Britannic’ (or pan-British) narrative and a Maori narrative. All three suggest and justify a particular form of the NZ state. All three give an incomplete picture of NZ’s constitutional history, separating ‘law’ from its various contexts. This thesis focuses mostly on the nationalist narrative, how it emerged and how the liberal nation-state became the only acceptable form for the NZ state to take. It attempts to provide a more nuanced approach to constitutional history. This is done by a broad examination of a number of subject areas: constitutional historiography, the economy, citizenship, NZ’s relationship with the Privy Council, the Crown, and various constitutional developments (in particular, proposals for bills of rights) in the periods 1950-1970 and 1970-2005, and placing legal signposts in economic, historical and political context. Greater contextualisation suggests that asserting that the NZ nation-state is inevitable is a response to the fragility of NZ’s present, brought on by the collapse of empire, the emergence of a community of nation-states, and domestic change. The emergence of the liberal constitutional nation-state in NZ is better seen as the contingent product of both various structures (international, British and domestic) and choices made by New Zealanders themselves. To treat this transformation as inevitable ignores that there were other alternatives possible. Moreover, it is wrong to see changes in NZ’s constitutional arrangements as a shift from dependency to liberty: rather, there has been a reconfiguration of constraints and enablements. This thesis is 95,614 words in length (including footnotes). 3 Acknowledgements My thanks to Steven Fok, Vikram Raghavan, Andrew Ladley, Duncan Campbell and George Barton QC for making comments on my thesis and offering advice when sorely needed. Many thanks also to my thesis supervisors, Professors Martin Loughlin and Tim Murphy. My deepest thanks goes to my parents, Keith and Lucy Yong, for their love and support throughout the period of this thesis, and of course, my fiancee Meixuan. 4 Contents Abstract.......................................................................................................................................... 3 Acknowledgements ....................................................................................................................... 4 Contents ......................................................................................................................................... 5 Introduction ...................................................................................................................................8 Chapter 1: The New Zealand Constitution and Its History ......................................................... 14 Introduction..............................................................................................................................14 The Britannic Narrative: Being British in a British World .................................................... 15 The Emergence of a New Zealand Nationalist Narrative ...................................................... 26 Maori Understandings of the ‘New Zealand’ Constitution ....................................................41 Conclusion...............................................................................................................................50 Chapter 2: The Economy ............................................................................................................. 52 Introduction..............................................................................................................................52 1840-1918: The Foundations of a Colonial State .................................................................. 53 1918-39: Depression and Dependence ....................................................................................57 World War Two: The Beginnings of Financial Independence? ............................................64 1945-73: Stability, Complacency and Internationalisation ....................................................66 1973-84: Crises, Internationalisation and Nationalisation....................................................79 1984-2005: Changes and Continuities ....................................................................................84 Conclusion...............................................................................................................................91 Chapter 3: The Judicial Committee of the Privy Council and New Zealand .............................. 93 Introduction..............................................................................................................................93 1840-1970: An Imperial Institution........................................................................................93 1945-70: Decolonisation and Attempts to Adapt ..................................................................101 1970-87: A Deepening Nationalism.....................................................................................110 1987-2003: Abolition and the Establishment of the New Zealand Supreme Court 113 Conclusion............................................................................................................................. 125 Chapter 4: Citizenship and Migration in NZ and the Commonwealth .....................................128 Introduction............................................................................................................................128 Allegiance and Citizenship ................................................................................................... 129 The British Nation, the Expansion of Empire and British Subjecthood ............................. 130 5 The Nineteenth and Early Twentieth Centuries: Maori and Better Britishness ..................131 The British Nationality and Status of Aliens Act 1914: Britain and New Zealand 134 Assisted Schemes of Migration in the Inter-war Years ....................................................... 140 The 1948 British Nationality and the New Zealand Citizenship A ct ................................. 142 Migration to the Old Commonwealth, 1946-75 ................................................................... 146 The Commonwealth Immigrants Act 1962 (UK) and the 1971 Immigration Act (UK)... 149 New Zealand 1950-2005: Domestic Demographic Change, the Retreat of Empire and the Rise of the Nation-State ........................................................................................................ 151 Conclusion.............................................................................................................................162 Chapter 5: The Crown in New Zealand Law..............................................................................164 Introduction............................................................................................................................164 The British History of the Crown .........................................................................................165 Maori and the Evolving ‘Crown’ in the Nineteenth Century ...............................................166 1880-1950: A Shift in the Roles of the Governor-General ..................................................171 1900-50: Maori and the Crown .............................................................................................178 1950-2000: The Hesitant Localisation of the New Zealand Crown ..................................
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