Members of the Sāmoan for proceedings on the Citizenship (Western Sāmoa) Bill on August 31, 1982. (Photo: Gail Jordan, The Dominion Post Collection, Alexander Turnbull Library)

Last week, a bill to amend a 1982 Act that removed New Zealand citizenship rights for Sāmoans, passed its second reading.

The Restoring Citizenship Removed by Citizenship (Western Sāmoa) Act 1982 Bill has support from parties across parliament and is likely to pass into law. When that happens, the now elderly group of Sāmoans whose citizenship rights were removed in 1982, will be eligible again for New Zealand citizenship.  

Here, Nigel Allardyce, a former New Zealand diplomat, speaks to Teuila Fuatai about the bill, which he believes doesn’t do enough to address the injustices caused by the 1982 legislation.

I want to start with a hypothetical scenario.

I am the legal owner of a house, which somehow, has been stolen.

Later, this house has been recovered and returned to me.

Even though this house, as a matter of law, has always been mine, because it was stolen I must now apply for ownership of my house and pay a fee to do so. Additionally, the return of my stolen house comes with an explicit condition that I can no longer pass it on to my descendants. Even though, before its theft, this condition never existed.

This hypothetical scenario illustrates the mechanics currently being employed to address the removal of citizenship rights that occurred when the New Zealand government enacted the Western Sāmoa Citizenship Act in 1982. However, in this instance, instead of a stolen house, it is the New Zealand citizenship rights of more than 100,000 Sāmoans.

I believe these citizenship rights should be restored in their entirety, without the conditions imposed through this bill. Just as I would expect with a stolen house. That belief is rooted in an understanding of New Zealand legislation enacted during its former colonial rule of Sāmoa.

In 1914, New Zealand invaded what was then German Sāmoa with no international mandate. By definition, this was an act of annexation and colonisation. It was not until 1920 that the newly formed League of Nations conferred a mandate on New Zealand to administer what the League renamed Western Sāmoa.

Before New Zealand took control, the Indigenous Sāmoan inhabitants had been German citizens. Typically, colonial powers conferred a citizenship or nationality status on the Indigenous inhabitants of their colonial territories. For example, Indigenous inhabitants of British colonies generally became British subjects.

New Zealand, however, did not properly or clearly deal with the citizenship or nationality status of Indigenous Sāmoan inhabitants when it took control of Sāmoa. This was a significant administrative failure, particularly when New Zealand had experience of colonial administration from when it assumed responsibility from Britain for the Cook Islands and Niue in 1901. In those cases, Cook Islanders and Niueans were already British subjects before New Zealand’s administration.

New Zealand also didn’t need to look far for other examples of colonial administration in the Pacific. For example, in 1900, the US assumed administration of what is now known as American Sāmoa and accorded the Indigenous inhabitants non­citizen nationality. That meant Sāmoans in American Sāmoa could live permanently in the US and were eligible for a US passport.

Had New Zealand properly and clearly resolved matters of British subject status for Sāmoans when it took over Sāmoa, there would likely not have been any later need for the Citizenship (Western Samoa) Act 1982. The New Zealand government would have been less likely to confuse itself over the status of Sāmoans, and deny Sāmoans the status and rights of British subjects that New Zealand had actually given them — and which eventually included New Zealand citizenship.

Ultimately, three pieces of legislation enacted by the New Zealand government in the first half of the 20th century are critical in understanding the British subject status and New Zealand citizenship rights of Sāmoans.

In 1923 and 1928, New Zealand enacted two pieces of legislation that conferred the status of British subjects on (Western) Sāmoans: The British Nationality and Status of Aliens (in New Zealand) Act 1923, and the British Nationality and Status of Aliens (in New Zealand) Act 1928.

Then, in 1948, the British Nationality and New Zealand Citizenship Act was passed. This Act created New Zealand citizenship. It also provided that Sāmoans who were British subjects would become New Zealand citizens from January 1, 1949. (Western Sāmoan citizenship took effect from 1962, when Sāmoa became independent from New Zealand.)

Over the years, I believe the British subject status and New Zealand citizenship rights of Sāmoans have been continually ignored and disregarded because the New Zealand government misunderstood, misapplied and failed to uphold its own legislation relating to British subject status and New Zealand citizenship for Western Sāmoans.

This came to a head during the Dawn Raids era when it wrongly applied its own immigration legislation, policy and processes to New Zealand citizens of Sāmoan ethnicity. Consequently, New Zealand citizens of Sāmoan ethnicity were arrested, detained, charged and convicted of “overstaying” offences. Many of them were unlawfully deported from New Zealand.

Then, even after Falema’i Lesā’s landmark victory in her Privy Council case, which clarified the New Zealand citizenship rights of Sāmoans like her, the government refused to change its behaviour.

Short-lived victory: Falema’i at the office of her lawyer in 1982 after finding out she’d won her case for New Zealand citizenship with the Privy Council. Pictured with secretary Margaret Beare. (Image: Peter Avery EP/1982/2359-F. Alexander Turnbull Library, Wellington.)

Falema’i, a Sāmoan woman, had come to New Zealand in 1975 to work. Three years later, she was charged under the Immigration Act for overstaying her immigration permit.

The ramifications of her case, which essentially revolved around the New Zealand government’s failure to understand and uphold its own citizenship laws, are well known.

Falema’i’s lawyers argued that she was a British subject by virtue of the 1923 and 1928 Acts, and that she acquired New Zealand citizenship by virtue of the British Nationality and New Zealand Citizenship Act 1948.

In its decision, the Privy Council held that Lesā was a New Zealand citizen, which also meant other Sāmoans in the same circumstances were as well. Importantly, the decision highlighted the iniquitous deprivation and consequential disadvantage suffered by British subjects and New Zealand citizens of Sāmoan ethnicity who the New Zealand government had deprived of their rights in law.

It also revealed that the New Zealand government had misinterpreted and misapplied the provisions of the 1923, 1928 and 1948 laws.

Crucially, despite all of this, just three days after Falema’i’s Privy Council decision in July 1982, the New Zealand government imposed draconian restrictions on Sāmoans wanting to come to New Zealand, both temporarily and to live.

Keep in mind, as clarified by the Privy Council decision, that this was unlawful because Sāmoans, by law, were New Zealand citizens.

We now know this was a deliberate attempt to prevent the recognition of Sāmoans’ New Zealand citizenship rights while the New Zealand government hastily drafted the Western Sāmoa Citizenship Act in 1982.

Examples of the government’s behaviour at the time include instructions to the New Zealand High Commission in Apia to decline all applications for temporary entry authorities (visas). Only limited exceptions could be made for “businessmen”, church leaders, government officials, and members of parliament on official business. All applications for permanent residence in New Zealand from Sāmoans were also suspended following Falema’i’s case.

Perhaps most severe was the instruction to the New Zealand High Commission in Apia to physically refer all passport applications — resulting from widespread public awareness of the outcome of the Falema’i Lesā case — to Wellington, rather than processing them in Apia.

There was no good reason why those applications could not have been processed by the High Commission in Apia. This was designed to severely curtail the number of Sāmoans who could protect their New Zealand citizenship before the passing of the Citizenship (Western Samoa) Act 1982.

According to the Act, anyone who held a New Zealand passport before it passed into law on September 15, 1982, would remain a New Zealand citizen. People were only made aware of this condition and the September 15 deadline at the bill’s first reading in August, which effectively left one month for applications.

To give an idea of the rush that ensued, records show that one day before the 1982 legislation was enacted, the New Zealand High Commission in Apia had on hand at least 500 unprocessed passport applications. That number doesn’t account for passport applications that had been sent to Wellington from Apia earlier. In fact, after four years of research on this matter, I have not been able to determine the exact number of people who applied for a New Zealand passport, successfully and unsuccessfully, because of the New Zealand government’s behaviour leading up to the enactment of the 1982 legislation.

These measures, alongside the Citizenship (Western Samoa) Act 1982, had the deliberate effect of locking New Zealand citizens of Sāmoan ethnicity out of New Zealand. Significantly, it deprived them of their right to travel to and live in New Zealand like all other New Zealand citizens.

This is a clear abrogation of the rights of New Zealand citizens in citizenship and passport law by the New Zealand government, particularly because, as we now know, these actions and inactions likely did cause New Zealand citizens of Sāmoan ethnicity to lose their New Zealand citizenship.

It is also a breach of the UN Declaration of Human Rights which states that “everyone has the right to leave any country, including his own, and to return to his country”.

To put the Citizenship (Western Samoa) Act 1982 in context, in the developed world, mass deprivation of citizenship virtually disappeared after World War II. To date, I have not been able to find another example of mass deprivation of citizenship in the developed world since 1935 when the Nazis deprived Jews of their German citizenship.

There was also no provision in New Zealand’s 1977 Citizenship Act to deprive citizens of their citizenship rights, except in very limited instances relating to individuals. None of those instances applied to New Zealand citizens of Sāmoan ethnicity.

All of us need to understand the severity of this ongoing injustice. The government, in particular, must address both the breach of law and human rights it has perpetuated all these years, as well as the harm stemming from it.

Make no mistake, the Citizenship (Western Samoa) Act 1982 was clearly intended to arbitrarily deprive an estimated 100,000-plus New Zealand citizens of Sāmoan ethnicity of their right in law to New Zealand citizenship.

As a result, these Sāmoans and their descendants did not have the same access to opportunities, such as New Zealand’s public education and health services and the ease of travelling with a New Zealand passport enjoyed by other citizens.

We’ve heard thousands of Sāmoans describe the pain and harm this caused for their families over generations, as part of the submission process for the Restoring Citizenship Removed By Citizenship (Western Samoa) Act 1982 Bill.

New Zealand must do everything in its power to make that right.

I believe that starts with not just amending the 1982 legislation, but returning to the citizenship law that was clarified by the Privy Council in Falema’i Lesā’s case 42 years ago.

Just like we’d expect with the return of a stolen house, the elderly group of Sāmoans deprived of their citizenship rights all those years ago should have them fully restored without arbitrary conditions and processes.

Falema ‘i Lesā and her son Ian. She turns 78 this month and is retired after 33 years working as a cook and carer in the hospitality and aged care sector. “We were treated so badly, labelled as lawbreakers and criminals,” she says about life in New Zealand in the 1970s and 80s.

They should not have to formally apply for their citizenship rights to be recognised, and pay a proposed application fee of $204.40, as currently outlined in the select committee report on the restoration bill. Their New Zealand citizenship should never have been taken away from them in the first place. To force them to pay for the restoration of their citizenship devalues the process. It is also particularly mean-spirited and disingenuous of the government.

In that same vein, their children should not be excluded from having their citizenship rights as descendants recognised either.

I also want to make it clear that the sole focus of this matter is citizenship rights — it has nothing to do with issues of immigration and border settings in New Zealand. Over the years, a constant argument against the unconditional repeal of the Citizenship (Western Samoa) Act 1982 has been that it would result in the depopulation of Sāmoa.

This is beside the point, and is an arrogant and ignorant assumption that implies Sāmoans would empty out of their homeland by the masses to move to New Zealand.

Currently, under New Zealand’s border settings, it is possible for 26 million Australians, 17,000 Cook Islanders, 1,900 Niueans, and another 1,900 Tokelauans, to exercise their legal rights to live in New Zealand. There’s also the prospect that a million expatriate New Zealanders might suddenly return home. That hasn’t happened, nor have these numbers been flagged as a motive to “tighten” border settings.

I believe the Citizenship (Western Samoa) Act 1982 created an iniquitous and justifiable grievance that will fester and surface time and again until it is properly and honestly resolved.

The current New Zealand government, and those overseeing the citizenship restoration bill, have the chance to do that. They should not try to find and apply the smallest possible “solution” to a grievance that is so much larger.

Let’s not waste the opportunity with half-measures and prejudiced arguments.

Nigel Allardyce is a former New Zealand diplomat who worked for the Ministry of Foreign Affairs and Trade from 1980 to 2003. During that time, he was assigned to five diplomatic postings overseas, including to Apia, Sāmoa, from 1987 to 1990. Nigel retired in 2018 and lives in Whanganui.

As told to Teuila Fuatai. Made possible by the Public Interest Journalism Fund.

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