Pre-colonial Period

On 13 December 1642 the Dutch navigator, Abel Tasman, sighted “a great land uplifted high”. When its people proved to be inhospitable he sailed away after calling the new country Staten Landt, later to be renamed Nieuw Zeeland, after a Dutch province. International law of the day would have given the Dutch an “inchoate title” to their discovery, but they did not see sufficient commercial advantage in occupying the territory and so converting that title into formal sovereignty.

James Cook was the next captain to sight the New Zealand islands and on 15 November 1769 (at Mercury Bay) and 31 January 1770 (at Queen Charlotte Sound) he took possession of the country in the name of King George III. The British Government, like the Dutch Government, made no attempt to substantiate the claims made on its behalf. Indeed, in the early nineteenth century the Imperial Parliament expressly repudiated British sovereignty.

The whalers, the traders, the missionaries, and the settlers who came after Cook entered a country in which there was no central authority to enforce law and order, the Maoris being politically organised on a tribal basis only. In this situation the early years of settlement were marred by lawlessness and bitter tribal warfare. Australian Governors felt some responsibility for these events and there were claims that references in the Commission of the Governor of New South Wales to “islands adjacent in the Pacific Ocean” gave some legal basis for this responsibility. Nevertheless, when Governor Macquarie in 1814 appointed Thomas Kendall, a missionary, as a Justice of the Peace in New Zealand, he was almost certainly acting without authority. The inclination of the Colonial Office in London to adopt the subterfuge of regarding New Zealand as “a Foreign Power under a regular Government” was shown by the appointment in 1833 of a British Resident, James Busby. Busby was to “claim the protection and privileges … accorded in Europe and America to British subjects holding in foreign states situations similar to [his]”. He was expected to apprehend escaped convicts and send them back for trial, to encourage trade, and to establish friendly relations with the Maoris on a permanent basis – all by moral persuasion. He failed, but it was in keeping with Colonial Office and his own pretensions that he should in 1834 arrange a meeting of 30 chiefs at Waitangi to adopt a national flag of New Zealand. The British Government ruled that the flag was to be recognised, and Busby granted New Zealand built vessels certificates of registration in the name of the independent tribes of New Zealand. In 1835 a further gathering of 35 chiefs declared the islands “an independent state under the designation of the United Tribes of New Zealand” with an elaborate constitution providing for a representative Parliament, counties, and towns on the English model. This action was officially stigmatised as “silly and unauthorised” and it did not ever have any practical effect. Thus Busby's activities came to nothing. A period of intense agitation ensued in which the Colonial Office's considered policy of doing as little as possible was encouraged by disputes between the missionaries (who, in their concern for the Maoris, sought British sovereignty but not large-scale colonisation) and the “systematic” colonisers, inspired by Edward Gibbon Wakefield. Eventually, in August 1839, Captain William Hobson, R.N., sailed for New Zealand with instructions to acquire sovereignty over New Zealand.

New Zealand Becomes a Colony

The various steps of legal significance associated with New Zealand's inception as a British colony make a confusing story – and there has been uncertainty as to their overall legal implications. Two separate, if related, issues were involved. The first was the need to assert British sovereignty over the New Zealand islands and thus to establish British title to New Zealand from the point of view of international law. The second concerned the manner in which British legal authority – or jurisdiction – was to be asserted over the new British territory. The two formal documents with which Hobson set out recognised these two issues. He held a commission appointing him Her Majesty's Consul in New Zealand for the purpose of negotiating for the recognition of the Queen's sovereignty by the chiefs of New Zealand. He also held a warrant appointing him Lieutenant-Governor over such parts of New Zealand as might be acquired in sovereignty. His appointment as Lieutenant-Governor was evidently regarded as contingent on the successful outcome of his negotiations as Consul.

The Colonial Office were still maintaining the pretence that New Zealand was a sovereign and independent state, but its intentions were laudable in that it was anxious that, at least in the North Island, “the free intelligent consent of the natives, expressed according to their established usages, shall be first obtained”. In accordance with instructions to this effect, Hobson negotiated the Treaty of Waitangi, which was signed by about 50 chiefs on 6 February 1840 and by over 500 chiefs throughout New Zealand before 15 October 1840. On 8 February a salute of 21 guns was fired “to commemorate the cession to Her Majesty of the right of sovereignty in New Zealand”, but Hobson took more definitive action when on 21 May 1840 he issued two proclamations, – one, relying on the Treaty of Waitangi and the subsequent adherence of “principal Chiefs”, proclaimed that sovereignty over the North Island had been ceded to Her Majesty as from the date of the Treaty; the other asserted, as from its date, sovereignty over “the Islands of New Zealand”, the claim to the North Island being based on cession and to the South Island on discovery. After Hobson's dispatches reporting these proclamations reached London, the British Government gave its formal approval to the assertion of sovereignty over New Zealand by publication of the proclamations in the London Gazette of 2 October 1840. The better view would appear to be that the Treaty of Waitangi is not to be regarded as an agreement between sovereign states in accordance with the usages of international law and, accordingly, that the complicated series of events which preceded that Gazette notice made both the main Islands of New Zealand a British colony by occupation rather than by cession.

These events effectively established British sovereignty over New Zealand so far as international law was concerned; but a different series of events was necessary if provision were to be made for the establishment of a system of government in the newly acquired territory. This need was anticipated when on 15 June 1839 letters patent were issued in London altering the definition of the boundaries of New South Wales to include “any territory which is or may be acquired in sovereignty by Her Majesty … within that group of Islands in the Pacific Ocean, commonly called New Zealand”. It thus became clear that, in the first instance at least, the British Government proposed that New Zealand should begin its constitutional life as an appendage of the Colony of New South Wales, rather than as a separate colony. Just before Hobson departed from Sydney, Governor Sir George Gipps issued a proclamation declaring that the boundaries of New South Wales were extended to include such territory in New Zealand as might be acquired in sovereignty. The authority of the Legislative Council of New South Wales was first asserted when on 16 June 1840 the Council passed an Act extending to New Zealand the laws of New South Wales. The Council also established customs duties and courts of justice for New Zealand. It became clear, however, that the relationship of the new colony with New South Wales was intended as a convenience to cover the period during which British sovereignty was being asserted over New Zealand. Even before Hobson's dispatch reporting his proclamations had reached London, an Imperial Act had authorised the Crown to make New Zealand into a separate colony and to constitute a nominated Legislative Council. This legislation became effective on 16 November 1840 under letters patent described as the “Charter for erecting the Colony of New Zealand …”.

Early Constitutions

The Charter of 1840 specified that the three principal islands of New Zealand were to be known respectively as New Ulster, New Munster, and New Leinster. Under its authority, and in accordance with his instructions, Hobson, who now became Governor, summoned an Executive Council to advise and assist him. This Council comprised the Colonial Secretary, the Attorney-General, and the Treasurer. The Charter and Instructions also authorised Hobson to constitute a Legislative Council of seven persons – the Governor himself, the members of the Executive Council, and three nominated Justices of the Peace – to make laws and ordinances “for the peace, order, and good government” of the colony. Neither Council met at all frequently during the governorships of Hobson and his successors, Lieutenant Willoughby Shortland (administrator), Robert FitzRoy and Sir George Grey. Throughout the Crown colony period each Governor held in the name of the Crown complete control over the executive and legislative functions of government.

Naturally enough, there was a growing agitation from the settlers for representative government. This was particularly the case in Wellington which, as a New Zealand Company settlement, had active supporters in London. Auckland, then the capital, was less interested. Eventually, pressure led to the enactment in 1846 in London of a most intricate constitution. It provided for a three-tiered system of representative government. Municipal corporations were to be created with the powers of English boroughs. Two or more provinces were to be established with assemblies which would include a Governor, a nominated Legislative Council, and a House of Representatives elected by the mayor and councillors of the municipalities in the province. Then there was to be a General Assembly for the whole colony consisting of a Governor-in-Chief, a nominated Legislative Council, and a House of Representatives appointed by the houses of the provinces from their own members.

This constitution was ill-conceived in its complexity; and Grey, the Governor, was able to argue that it would place the Maori majority under the political control of the settlers and so prejudice his efforts to pacify the Maoris. There was also the suspicion that Grey was unwilling to relinquish his own authority. He was able to persuade the British Government that its action was precipitate; and in 1848 (just before Grey divided the colony into two provinces, New Ulster and New Munster) the Imperial Parliament passed a Suspending Act under which those parts of the 1846 Constitution dealing with establishment of provincial assemblies and the General Assembly were not to come into force for another five years. The Charter provisions relating to the Legislative Council for the whole colony were revived, with modifications; and the Governor was authorised to establish Legislative Councils in each of the provinces.

Settler pressure for representative institutions and criticism of Grey intensified, and for the next four years the Governor pursued an erratic course which gave little satisfaction to the settlers. Early in 1848 he had appointed Major-General G. D. Pitt (he was followed by Lieutenant-Colonel R. H. Wynyard) as Lieutenant-Governor of New Ulster, and Edward J. Eyre as Lieutenant-Governor of New Munster. Each had associated with him an Executive Council. Later in the same year Grey, through an Ordinance of the General Legislative Council, established nominated Legislative Councils in each province. The Provincial Council of New Ulster was never summoned. In 1851, under the authority of the 1846 Act, Grey made the town of Auckland a municipality, but this step did not relieve the pressure for a Legislative Council which would be representative of the whole province.

The Provincial Council of New Munster had only one legislative session – in 1849 – before it succumbed to the virulent attacks of the Wellington settlers. Grey, sensible to the pressures, inspired an ordinance of the General Legislative Council under which new Legislative Councils would be established in each province with two-thirds of their members elected on a generous franchise. Grey, however, proceeded to implement the ordinance with such deliberation that neither Council met before advice was received that the Parliament at Westminster had passed the New Zealand Constitution Act of 1852.

The 1852 Constitution and Responsible Government

The General Assembly for the colony was to consist of the Governor, a Legislative Council, and a House of Representatives. The Council was to be a nominated body, and the House was to be elected. The electoral franchise appeared to be almost universal, in that there was no racial distinction and a not very onerous property qualification, but the Maoris were in practice disfranchised because of their communal system of land owning. In each of the provinces there was to be a superintendent and a provincial council of at least nine members. The superintendent and members of the council were to be elected under the same franchise as that for the House of Representatives.

The Assembly would be competent to make laws for the peace, order, and good government of New Zealand, provided those laws were not repugnant to the law of England. The legislative competence of the provincial councils was stated in similarly wide terms, but certain specific topics were reserved to the General Assembly, which was also to have the authority to supersede provincial legislation. Since, therefore, the provincial councils had no exclusive lawmaking powers, the Constitution could not be regarded as establishing a federal system.

After some delay in the calling of the General Assembly, it met for its first session in May 1854. This first session was primarily concerned with the one matter which, although the main objective of the colonists, was not mentioned either in the Constitution or in the accompanying instructions: responsible government. As the position stood immediately before the enactment of the 1852 Act, the Executive Council consisted of Crown servants who were responsible to the Crown. In the absence of any indication to the contrary, Colonel Wynyard, who was by 1854 administering the Government, was of the view that he could not appoint an executive responsible to Parliament until he received instructions from London. Moreover, according to his Attorney-General, he had no authority to dismiss the official members of his Executive Council.

A compromise resulted from an almost unanimous resolution affirming the principle of the responsible executive. Three members of the House of Representatives and, later, one from the Legislative Council were added to the Executive Council as ministers without portfolio. The unofficial members soon found it necessary to withdraw, and it was not until another attempt to establish a mixed Executive Council had failed that Colonel Wynyard received advice from London that responsible government could be introduced without legislation and that he could accept a responsible ministry if adequate pensions were provided for the deposed official members. An election followed, and after the second Parliament assembled in 1856 legislation providing for pensions for the official members was passed and Governor Sir Thomas Gore-Browne asked Henry Sewell to form the first responsible ministry.

Canada provided the prototype for the establishment of responsible government. There Lord Durham had suggested that the Colonial Governor should act on the advice of ministers who could command a majority in the Colonial Assembly except in matters that directly involved “the relations between the mother country and the Colony”. Durham defined these “imperial issues” as being constitutional amendments, foreign relations, external trade, and the disposal of public lands. Governor Gore Browne evidently had these issues in mind when he obtained Sewell's signature to a minute in which the Governor retained his authority “On matters affecting the Queen's prerogative and imperial interests generally …”. The minute continued: “Among imperial subjects the Governor includes all dealings with the native tribes, more especially in the negotiation of purchases of land…. The Governor alone is responsible to Her Majesty for the tranquillity of the Colony….”. The reference to dealings with the Maoris reflected conditions in New Zealand. The Constitution Act had already reserved the purchase of Maori land to the Governor and in other ways ensured that Maori policy and its administration would remain in the hands of officers responsible to the Governor. Nevertheless, the sale of land once acquired by the Crown was to be at the disposal of the General Assembly – a significant concession because the sale of land was an important source of revenue.

The Provincial Period, 1853–76

By providing what was, in effect, a unitary constitution, the constitution-makers had expressed their confidence that eventually national issues would transcend those of provincial concern; but, in the early years of self-government, geography and parochial self-interest ensured that the provincial governments would assume powers and responsibilities not contemplated by the Constitution. Grey's actions, in particular the priority he gave to the establishment of the provincial councils, led to the criticism that he was deliberately seeking to consolidate the position of the councils. This was aided by their passing their own empowering ordinances. It was soon accepted that the revenues coming from the sale of public lands would, after certain deductions, go to the provinces; and the power to determine the price and method of sale of land, combined with control over immigration and public works, allowed the individual provinces to dictate the pattern of their own social and economic development. The southern provinces, without the distraction of the Maori wars and helped by the gold rushes, developed more rapidly than did those in the north. By 1870 only Canterbury and Otago could be said to be flourishing, and there were events during the ensuing five years that had as their inevitable conclusion the abolition of the provinces. The Central Government prohibited further provincial borrowing; it took over immigration and public works; and, by the use of public loans, itself encouraged immigration and developed road and railway communications. Thus the country became an economic unit while the provinces were more and more anachronistic. Their end came when Julius Vogel, irritated by the provincial opposition to his plans for the creation of railway reserves and for afforestation (the provinces saw these as an attack on their lands), was able to obtain support for abolition legislation. This became effective in 1876. Soon after, land revenue was taken over by the Central Government, to be spent on the general needs of the colony.

The Position of the Governor

Just as the disposal of public land was a central issue of the relations between central and provincial governments, so the purchase of Maori land was the main factor determining relations between the colonial government and the British Government. Governor Gore Browne had reserved dealings with the Maoris as an “imperial subject” and in practice these dealings concerned the purchase of Maori land for later disposal to the settlers. The details of the story are confusing, but the basic issues were straightforward enough. The British Government was not confident that Maori interests would be respected if they were passed over to the responsibility of the self-governing settlers. On the other hand, the settler government could not for long agree that the acquisition of land for further settlement was a matter beyond their competence. When conflict of interest led to the Maori wars, the settlers were ready enough to seek the protection of the British Government and its imperial forces. There could be only one outcome: that Maori policy should become a matter falling clearly within the area of local responsibility and that the local Government should maintain its own internal security. It was predictable, too, if not so inevitable, that settler responsibility for Maori policy should usher in a period during which the Maori was effectively separated from much of his land. Some steps in the story are particularly significant: in 1862 the Crown monopoly of the purchase of Maori land was abolished; in the same year the establishment of a Land Court and the individualisation of Maori land titles provided a formal cover for blandishments of the land trader; in 1863 the General Assembly accepted responsibility for administering Maori affairs; in 1863, too, Grey initiated the policy of punishing the rebels by confiscating their land; and in 1865 a mass exodus of British troops began, the last regiment being withdrawn in 1870.

It had been clear during the crisis that a colonial Governor had two, often conflicting, responsibilities. He was the formal representative of the Crown, who might be expected to act on the advice of his New Zealand ministers; he was also an agent of the Imperial Government who was concerned to implement the views of that Government. The Colonial Office relinquished its control over Maori policy by requiring the Governor to act on advice within this sphere and in so doing recognised that it would no longer interfere in domestic questions. But there were still “domestic” areas in which the Governor could with some validity claim that he was not bound by the advice of New Zealand ministers. Thus the Crown was the “fountain of mercy” and its representative had, in his own discretion, exercised the power of pardon. In the 1870s the Canadians had successfully insisted that this was a power to be exercised on the advice of Canadian ministers, and in 1891 Prime Minister John Ballance was able to persuade his Governor that he should accept his Executive Council's advice to commute. It was Ballance, too, who successfully obtained a Colonial Office direction that the Governor, Lord Glasgow, was to accept Ballance's advice that 12 new appointments were to be made to the Legislative Council in order to ensure a Liberal majority in the Council.

The Governor still acted as agent for the United Kingdom Government in matters of external affairs, and it was not until the Imperial Conference of 1926 that it was recognised that the interests of the United Kingdom Government might more appropriately be represented in the Dominions by a High Commissioner, and the Governor-General left to represent the Crown. In this respect, as in others connected with the implementation of the resolutions of the 1926 Conference, New Zealand was slow to act, and it was not until 1939 that the first United Kingdom High Commissioner arrived in Wellington.

Today, the Governor-General occupies much the same constitutional position as does the Queen in the United Kingdom. He is required to act on the advice of ministers, although there is an uncertain area of discretion – seldom likely to be exercised – affecting the dissolution of Parliament and the choice of a Prime Minister.

The Legislative Authority of the New Zealand Parliament

The Constitution Act 1852 – an Act of the Imperial Parliament – is still New Zealand's basic constitutional document; but of the original 82 sections only a rump of 19 remains; and of these 19 a number can be regarded as no longer effective. New Zealand has an unwritten constitution in the sense that, as in the United Kingdom, the operation of Cabinet, the basic institution of responsible government, is governed by convention rather than by statutory provision. On the other hand, there are in New Zealand many Acts of Parliament which include provisions often found in written constitutions: for instance, the Royal Powers Act 1953, the Demise of the Crown Act 1908, the Deputy Governor's Powers Act 1912, the Civil List Act 1950, the Legislature Act 1908, the Electoral Act 1956, the Public Revenues Act 1953, the Judicature Act 1908, the British Nationality and New Zealand Citizenship Act 1948, the Public Safety Conservation Act 1932, the External Affairs Act 1943, and the Statute of Westminster Adoption Act 1947. There are, besides, the Letters Patent and Instructions of the Governor-General.

Under the 1852 Act the New Zealand General Assembly was authorised to repeal only a few comparatively unimportant provisions of the Act. The Assembly was given more extensive powers of amendment by an Amendment Act of 1857, passed by the Imperial Parliament. This Act permitted the repeal of all the provisions of the 1852 Act except certain specific provisions regulating, for instance, the establishment of the General Assembly itself and the extent of its legislative powers. It is not altogether clear when New Zealand acquired authority to amend these “entrenched” provisions of its constitution. There is some support for the view that the Colonial Laws Validity Act 1865 gave this authority when it provided that representative colonial legislatures had full powers to make laws respecting their own constitution, powers, and procedure. Nevertheless, the New Zealand Government after 1865 on a number of occasions sought Imperial authority for specific amendments to the 1852 Act. The issue was further confused when the United Kingdom Parliament, in enacting the Statute of Westminster, provided that nothing in the Statute was to affect the law relating to the amendment and repeal of the New Zealand Constitution Act. Special measures were taken to resolve the doubt when, after the adoption by New Zealand in 1947 of the Statute of Westminster, the United Kingdom Parliament, at the request of the New Zealand Parliament, passed a Constitution Amendment Act authorising the New Zealand Parliament to amend any of the provisions of the 1852 Act. In other words, the New Zealand Parliament gained full control over the Constitution of New Zealand.

There were other respects in which the nineteenth-century New Zealand General Assembly did not appear to be completely its own master. There were the Governor's powers to reserve New Zealand legislation for the signification of the Crown's assent; and there was the authority of the Crown to disallow New Zealand legislation even after the Governor had given his assent. The powers of reservation and disallowance were prerogative powers of the Crown which were also specifically set out in the 1852 Constitution Act. There are isolated instances of the use of both in the nineteenth century and, in respect of reservation, in this century. But it was clearly established at the 1926 Imperial Conference that they were to be exercised only on the advice of New Zealand ministers and the provisions still to be found in the 1852 Act are obsolescent.

Other restrictions on New Zealand legislative autonomy could not be disposed of by this conventional procedure. There were doubts as to whether the New Zealand Parliament had authority to legislate in respect of matters outside New Zealand (extraterritorial legislation); the Constitution Act itself and the Colonial Laws Validity Act 1865 prevented the New Zealand Parliament from passing legislation which was inconsistent (or repugnant) to legislation of the United Kingdom applying to New Zealand; and there was always the authority of the United Kingdom Parliament to pass legislation applying to New Zealand and even overriding New Zealand legislation. These issues were discussed at the 1926 Imperial Conference and, after discussions at a conference of experts in 1929, the Imperial Conference of 1931 approved a draft of the Statute of Westminster which was in the same year passed by the United Kingdom Parliament.

The Statute of Westminster came into immediate effect in Canada and South Africa, but New Zealand and Australia – suspicious that all this was going too far in the direction of Dominion “independence” – were given the right to adopt the Statute at a later date. In 1942 Australia adopted the Statute, as did New Zealand in 1947, conscious by this time that the New Zealand Parliament was under significant legislative disabilities. Now, extra-territoriality and repugnancy are no longer problems and the United Kingdom Parliament will legislate for New Zealand only with the request and consent of the New Zealand Parliament.

In recent years there has been limited public support for proposals that New Zealand should adopt “a written constitution”, which would be “entrenched” in such a way as to prevent its amendment by ordinary Act of Parliament passed by a simple majority. The only step in this direction that has actually been taken is to be found in the Electoral Act 1956. Section 189 requires that sections of the Act – those relating to the composition and number of electoral districts, the adult franchise, the secret ballot, and the life of Parliament – are not to be amended unless by an Act passed by a majority of 75 per cent of all members of the House of Representatives or unless the proposal for amendment has been carried by a majority of the electorate in a referendum. There is nothing to prevent Parliament from repealing section 189 itself, so the entrenchment involved is not very effective from the legal point of view. Nevertheless, since the provision was passed unanimously, it is likely to be respected both by National and by Labour Governments.

Composition of Parliament, Franchise, etc.

The first House of Representatives established under the Constitution Act 1852 consisted of 37 members. There were increases until 1881 when the number became 95. After a reduction to 74 in 1891, the present number of 80 (including four Maori seats) was established in 1900. There was periodic reform of the franchise until manhood franchise was established in 1879. In 1893 New Zealand became the first British country to give the vote to women and, with the abolition of plural voting, New Zealand has in this century adopted the principle of one man one vote. The vote is accorded to all British subjects who have resided in New Zealand for 12 months and who have resided for three months in the electorate in which they are to vote. During the nineteenth century there were periods when there were multi-member constituencies, while from 1908 to 1912 there was provision for a second ballot. Now there are single-member constituencies in which the candidate securing the largest number of votes is elected.

The Maoris' communal system of land owning did not enable them to take advantage of the property qualification established in 1852 and, in order to give them effective representation, four separate Maori seats were established in 1867 on the basis of manhood franchise.

The life of Parliament as fixed in 1852 was five years. It was reduced in 1879 to three years, and although there have been four instances – the Parliaments of 1914, 1931, 1938, and 1951 – when this has been extended, the term remains at three years.

The Legislative Council established under the Constitution Act 1852 was an appointive body and in the early stages its upper limit was 15 members. Its size varied over the years – it was as high as 54 in 1885 and 53 in 1950. Until the last decade of the nineteenth century the Council was an influential body which, being conservative in composition, protected the interests of the large landowners. With the advent of a Liberal Government, however, conflict between the Council and the House of Representatives became so intense that the Government successfully reduced the effectiveness of the Council – in particular, by establishing that the Governor was required to accept the Government's advice on appointments and by introducing legislation making the term of appointment seven years. From that time the Council's status decreased until it ceased to perform any very useful function. In 1914 a Legislative Council Act reconstituting the Council was passed, but the Act was not brought into force, and in 1950 the National Government abolished the Council. There was some suggestion that it would be replaced by another body, but although there has been some agitation for a second chamber, including proposals by a select committee of the House of Representatives, there has been little evidence that such a chamber is likely to be established.

The Ombudsman

In 1962 Parliament took the unusual step for a Commonwealth country of establishing a Parliamentary Commissioner for Investigations – or Ombudsman, after Scandinavian precedents. The Ombudsman is responsible to Parliament itself and his function is to investigate and – if he thinks fit – report on complaints made against Government administration.

External Relations

In the early days of the New Zealand colony it was accepted readily enough that the British Government should continue to be responsible for external trade and foreign relations. In 1869 and 1870 colonial irritation with British policy over Maori affairs and the conduct of the Maori Wars led to mutters of independence, separation, and even of neutrality in a war caused by British policy. Imperial concessions in 1870, however, were a sign of increasing British sympathy for its colonial connections, and marked the beginning of a period during which New Zealand loyalty to the “motherland” was unquestioned. And yet in the immediate era of expansion there were New Zealand leaders who saw their country's interests in a broader context. The Imperial tie restricted New Zealand's freedom in trade policy and she unsuccessfully pressed in 1871 and 1887 to be allowed to negotiate her own commercial agreements. In 1873 it was conceded that the colonies had the right to grant each other tariff preferences. In 1902 Richard Seddon took a lead in trying to persuade the United Kingdom itself to abandon its traditional free-trade system – and in this way foreshadowed the imperial preference arrangements reached at Ottawa in 1932 as a Commonwealth response to world depression. The Imperial Conferences of 1923 and 1926 recognised that New Zealand, along with the other Dominions, was entitled to conclude its own trade – and political treaties – with foreign countries. New Zealand's first commercial treaty – one with Japan – came in 1928, and another with Belgium in 1933 was followed by others.

In the expansive 1870s New Zealand leaders began to look with interest on the Pacific Islands to the north, and Vogel, Grey, Stout, and Seddon thought – and argued – in terms of annexation or of a Pacific federation. But it was accepted that this was a matter on which New Zealand must act through the British Government – and the only immediate fruits of New Zealand importunities was the annexation of the Cook Islands and Niue in 1901. New Zealand was denied Samoa in 1884, but another chance came when, on the outbreak of war in August 1914, New Zealand troops took possession of the German territory of Western Samoa. New Zealand acquired the League of Nations Mandate in 1919 by a series of steps which left some doubts as to the legal responsibility of the United Kingdom Government for the transaction; however, by the time the status of the territory had changed from mandate to United Nations trust territory (in 1946), New Zealand's international and municipal responsibility had been acknowledged. When in 1962 Western Samoa became an independent state in treaty relationship with New Zealand, New Zealand could claim that she had taken an initiative in the granting of autonomy to a small territory which was to have implications elsewhere in the Pacific and beyond.

Russian warships in the Pacific in 1885 and French and German activities in the Pacific Islands were reminders that independence could be perilous for a small country. Vogel's thoughts turned towards imperial federation. He and successors like Seddon and Ward saw an imperial forum, for instance an imperial council, as a method of providing the colonies with a voice in the making of British policy and at the same time of assuring them of the protection of the British Navy. Seddon and Ward pressed their views without avail at the Colonial Conferences of 1897 and 1907 and at the Imperial Conference of 1911. There was, nevertheless, a realism in their approach which was not always shared by their fellow Empire Prime Ministers. The New Zealanders saw that the colonies would inevitably become involved in the wars of the mother country and would be called upon to make their own financial contribution to the defence of the Empire. Having accepted this situation, New Zealand ministers were anxious to have some say in the making of policies which might lead the Empire into war. The other colonies saw the choice clearly enough, but were more ready to forego the “say” in the vain hope of being able to escape the responsibility.

In 1911 the Dominions, other than New Zealand, were willing to have the British Prime Minister declare, in answer to Sir Joseph Ward's proposals:

[They] would impair, if not altogether destroy, the authority of the United Kingdom in such grave matters as the conduct of foreign policy, the conclusion of treaties, the declaration and maintenance of peace, or the declaration of war, and, indeed, all those relations with Foreign Powers, necessarily of the most delicate character, which are now in the bands of the Imperial Government, subject to its responsibility to the Imperial Parliament. That authority cannot be shared….

The British Prime Minister did, however, go some way towards meeting the difficulties the New Zealand Prime Minister had raised. During the Conference Dominion representatives were given an opportunity at confidential meetings to discuss foreign policy and defence; and an undertaking was given that, where possible, the United Kingdom Government would consult with the Dominions before negotiating international agreements affecting those Dominions.

Developments during the First World War showed just how realistic the approach of the New Zealand statesmen had been. Although the Dominions were brought into the war by a decision in which they had no part, they gave prodigally of their manhood and resources. The problems of wartime consultation was eventually met by the establishment of the Imperial War Cabinet, the constitution of which would not have seemed unduly strange to Seddon and to Ward. The longer term problem was discussed at the Imperial War Conference in 1917. The Conference recognised the need for readjustment of the constitutional relations of the component parts of the Empire. The nature of that readjustment would be discussed after the war, but it would recognise the right of the Dominions to an adequate voice in foreign policy, and would provide effective arrangements for continuous consultation on all important matters of common imperial concern. It was taken for granted that in these matters there would continue to be a single imperial foreign policy, but that, in future, unity would not be imposed from above by one government at Westminster. It would result from the continuous consultation of autonomous nations.

Although the inter-war Imperial Conferences elaborated techniques of consultation and cooperation, events soon showed that it was not going to be possible to ensure unified action on the part of members of what now had come to be called the British Commonwealth of Nations. By the time of the Second World War it had become recognised that the members of the Commonwealth could pursue their own foreign policies, conclude their own political treaties, exchange diplomatic representatives with whom they chose, vote as they wished at meetings of the League of Nations, and, most significant of all, make their own decisions to declare war and make peace. Viscount Halifax was thinking in the past when, during a visit to Canada in 1944, he proposed that machinery should be established enabling common Empire policies on such matters as foreign and economic affairs and defence. The Canadian Prime Minister immediately rejected the suggestion that there could be a single Commonwealth policy as distinct from each nation having its own policy.

The Canadian approach, consistent as it was with Canadian views between the wars, would not have been congenial to a New Zealand Government before 1935. In the post-1918 period New Zealand loyalty to Britain had expressed itself in uncritical adherence to British policies. The Labour Government which came to power in 1935 began, however, to think in terms of a New Zealand policy. This was seen, in particular, in the League of Nations, where her spokesman, W. J. Jordan, later Sir William Jordan, took firm stands when the Spanish Civil War and the Italian invasion of Ethiopia were before the League. New Zealand's uncompromising support of the League Covenant led to public differences with British spokesmen, and Peter Fraser, then Deputy Prime Minister, said in 1938 in reply to criticism:

It was time somebody spoke – the country has to make up its own mind on international problems as a sovereign country … though we work in closest co-operation with the British Government, that does not mean to say that we must be prepared to swallow everything the British Government cares to put forward.

Nevertheless, New Zealand, in the following year, readily accepted the United Kingdom declaration of war against Germany as involving New Zealand in war and proclaimed her solidarity with Britain. This was, perhaps, the last time that New Zealand was to regard herself as legally bound by a decision of United Kingdom ministers. During the war itself Fraser had numerous opportunities to take a definitive New Zealand position and this attitude was reflected in New Zealand policies during the establishment of the United Nations and the negotiation of the peace treaties. By then it was recognised on all sides that the Dominions were entitled to pursue independent policies, and were in no sense – legal or political – subordinate to the United Kingdom. Thus the Conference of Commonwealth Prime Ministers, which has replaced the Imperial Conference, adopts no formal resolutions or binding decisions.

More recently New Zealand has on numerous occasions taken an independent position – the luxury of a small country with no great commitments. In the United Nations, in particular, her spokesmen have opposed the views of the United Kingdom and of other Commonwealth countries. In 1951 consciousness of this dependence on the United States for security in the Pacific led Australia and New Zealand to conclude the ANZUS Agreement with the United States, but not with the United Kingdom. In 1954 New Zealand and Australia became separate parties along with the United Kingdom to the SEATO Treaty establishing the South-East Asia Treaty Organisation. Again New Zealand, along with Australia, has allowed herself to be influenced by United States policies in continuing to recognise the Nationalist Government of China, although the United Kingdom had recognised the Communist regime. On the other hand, the strength of loyalties flowing from the Commonwealth tie led New Zealand to join Australia in rather uncritical support of United Kingdom action in Suez.