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Geddis, Andrew --- "The Constitution of Independence: The Development of Consitutional Theory in Australia, Canada and New Zealand" [2006] OtaLawRw 12; (2006) 11 Otago Law Review 337

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The Constitution of Independence: The Development of Constitutional Theory in Australia, Canada and New Zealand

(by Peter C. Oliver, Oxford University Press, Oxford, 2005)

Do not, it is said, judge a book by its cover. Equally, it is advisable not to make too many assumptions about a book's content solely based upon its title. If, for example, you happened to pick up a volume entitled The Constitution of Independence: The Development of Constitutional Theory in Australia, Canada, and New Zealand, you could be forgiven for expecting a wide ranging discussion as to how various questions relating to institutional design, political accountability, and the protection of individual rights have been confronted and answered in each of the three named societies. But if such were your expectations, you would be somewhat disappointed. You get instead a very tightly focused examination of "how the well-behaved Dominions of the British Empire ... acquired their constitutional independence: how they anticipated it; how they went about it; and how they subsequently explained it." (p. 1) Furthermore, the mode of analysis is legalistic rather than sociological in approach: "By 'constitutional' independence, I am referring to their ability in formal legal terms to determine with finality all the rules, constitutional and other, in their respective legal systems." (pp. 1-2) Therefore, the strand of "constitutional theory" addressed here is the narrow question of how one sovereign legal power (the United Kingdom's Parliament) can endow a formerly subordinate entity (the Parliaments of the "well behaved Dominions") with full sovereign legal power, without also then retaining the ability to revoke that endowment of full sovereignty at some later point in time.

I hasten to note at this point that the question is not whether the United Kingdom Parliament could in fact reassert its sovereign law making powers over the Parliaments of New Zealand, Canada and Australia. Social changes on the ground, plus a burgeoning sense of national identity in the former dominions, render such an enquiry completely otiose. Simply put, if the United Kingdom Parliament were to now enact legislation purporting to somehow traduce or confine the law making power of New Zealand's Parliament, the likely response of New Zealand's Parliament to this action would not be fit to print in the pages of this august journal, and I do not think it likely that anyone really would expect the New Zealand courts to give that United Kingdom enactment any legal weight. Therefore, what is in question is how, as a theoretical matter, this transition from subordinate to fully sovereign status can be accounted for. Is there some way in which we can tether the legitimacy of these developments to an unbroken chain of authority leading back to the imperial Parliament (the "legal continuity" approach), or do these developments require us to posit some sort of breach in that chain of authority with the concomitant problem of then identifying the legal basis on which the former-dominion Parliaments now have sovereign authority (the "disguised revolution" approach)?

The Constitution of Independence proceeds to examine, in it must be said a quite dense and sometimes turgid fashion, the manner in which this theoretical conundrum has been addressed both by academic commentators and by those

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who actually were involved in the process at the time. We therefore get something of an insider/outsider perspective on the problem: the self-understanding of public officials involved in guiding the dominions to full constitutional independence, which is in turn informed by the attempts of academics to square the circle of constitutional change. Somehow, all this really ought to be more interesting than it ultimately proves to be. I do not quite know why the book fails to deliver on its promise. One reason may be that despite the author's attempt to make the discussion of sovereignty issues relevant in the context of the United Kingdom's relationship to the European Union, too much of the book reads like an account of past intellectual jousting over a topic that just does not seem to matter that much any more. The really interesting current questions of sovereignty in New Zealand, for example, relate to the issue of indigenous rights and the status of the Treaty of Waitangi. The Constitution of Independence does nod in acknowledgment of this point — the relevant chapter on New Zealand is even titled "New Zealand: Waitangi, Westminster and Wellington" — but then pretty much abandons it in favour of a fairly dry account of how New Zealand came to adopt the Statute of Westminster in 1947. As a public lawyer, I know I really should care about this process, so perhaps it is my own personal failing that I just cannot get that excited about it.

Nor does the overall structure of the book do much to help a reader engage with the material. Parts of The Constitution of Independence have previously appeared in other publications, and this fact shows up in its rather disjointed overall feel. Too many paragraphs commence with "as we have seen", or "as we shall see", or similar internal cross references to other sections of the book. There is a high degree of overlap between the discussion in chapter 4 ("Theories of Parliamentary Sovereignty After 1931") and that contained in chapter 12 ("Theoretical Approaches to Sovereignty and Legal System"). The Kelsenian concept of the Grundnorm is used repeatedly in the discussion of the actual process of constitutional change in Canada (see pp 145-150), but the concept itself is not discussed in any depth until page 291. I could go on, but these examples all suggest to me that this is a book which has grown out of a series of related investigations, rather than being written as one cohesive whole. For this problem to be fully cured, I think a more ruthless editorial razor was required.

Re-reading this review, I realise it makes The Constitution of Independence sound like a worse book than it actually is. In terms of providing an historical account of how Australia, Canada and New Zealand became constitutionally independent, it is more than adequate. It also gives a useful account of the various strands of academic debate relating to that process. It has some interesting, if a little limited, things to say about the nature of the concept of sovereignty. Therefore, I think any overall negative tone to the review is perhaps the result of my writing it with a sense of some frustration. It just seems like this should have been a book I enjoyed more than I did.

Andrew Geddis, Faculty of Law, University of Otago.