Is the UK a foreign power?
That's the question asked by Otago University's Gregor Macaulay in the latest issue of the New Zealand Law Journal. And the reason it matters is because of our habit of making our Prime Ministers (and sometimes other senior politicians) members of the Privy Council. This means that they get to call themselves "Right Honourable", as opposed to merely "Honourable", which is what Cabinet Ministers (or rather, members of the Executive Council in our inherited, kludged-together constitutional parlance) get to call themselves. But it also means they have to swear an oath of office [DOC], in which they swear "to be a true and faithful Servant unto The Queen’s Majesty" and "to your uttermost bear Faith and Allegiance" to her. In the time of Dick Seddon, this was unproblematic; we were unquestionably part of Great Britain. But now, legally speaking, we are not. That ended with the confirmation of our adoption of the Statute of Westminster in 1947, and the final nail was hammered into the coffin with the passage of the Constitution Act 1986, which finally removed the ability for the British Parliament to pass laws for us. Even our monarchy is legally technically seperate from the UK; in our law, unless specifically stated otherwise, references to the Queen mean "the Queen in right of New Zealand" - not the Queen in right of the UK. And since the passage of the Imperial Laws Application Act 1988, the Privy Council in anything other than its judicial role has not been part of our law. It is a British institution, and its oath unquestionably refers to the Queen in right of the UK.
if he or she takes an oath or makes a declaration or acknowledgement of allegiance, obedience, or adherence to a foreign State, foreign Head of State, or foreign Power, whether required on appointment to an office or otherwise
"Harry's Law" meant that this did not apply in the last Parliamentary term, and further allows Members to renew dual citizenship or foreign passports. But it doesn't allow them to swear allegiance to a foreign head of state. This isn't a new provision; it's been present in our law since the very beginning. It's the relationship with the UK that has changed.
Which brings us back to our original question: is the UK a foreign power? While older New Zealanders and staunch monarchists would deny it, legally it's quite uncertain. The term is defined in some of our laws (though not the Electoral Act) as "any country other than New Zealand", and the High Court of Australia (whose judgements a New Zealand court would be likely to at least examine) has ruled that the UK is a foreign power under Australian law. But if this is the case, then we have problems: various ministers and MPs would not have been entitled to hold their seats (and hence be ministers), thus allowing regulations, contracts, and decisions made by them to be retrospectively overturned - exactly the same problem we faced with Harry Duynhoven. And the only answer is to legislate to clarify the position - otherwise someone will force the issue. This will necessarily mean further clarifying our relationship with the UK, which IMHO can only be a good thing.