Vol. 16 No.1 (January 2006), pp.65-67
THE CONSTITUTION OF INDEPENDENCE: THE DEVELOPMENT OF CONSTITUTIONAL THEORY IN AUSTRALIA, CANADA AND NEW ZEALAND, by Peter C Oliver. Oxford: Oxford University Press, 2005. 392pp. Hardback. £50.00/ $95.00. ISBN: 0-19-826895-5.
Review by Andrew McDonald, Visiting Scholar, The Institute of Governmental Studies, University of California, Berkeley. Email: andrew.mcdonald [at] gtnet.gov.uk
THE CONSTITUTION OF INDEPENDENCE is a work of formidable scholarship. Peter Oliver analyses how it was that Australia, Canada and New Zealand came to end their constitutional ties to the United Kingdom. Each of the Dominions effected the change through different means and at different times, but common concerns run through the contemporary debates over the route to independence. Oliver focuses on the legal and theoretical bases for each of the transitions. And, in particular, he worries away at one central question: how could the UK Parliament’s competence to legislate for the Dominions be brought to an end? According to orthodox British constitutional doctrine, as espoused by Dicey, Parliament is sovereign. It cannot be bound by the actions of others; nor can it bind successor Parliaments. Thus there is a logical problem with any ‘final’ act – in Westminster or a Dominion Parliament – to cut the link between the UK and its former Imperial possessions. Those who imbibe pure Diceyan doctrine might question the validity of such measures – and conjure up the spectre of a subsequent reassertion of Westminster’s dominance.
This, then, is the territory that Oliver crosses – and re-crosses. This work takes in 150 years of constitutional history in three countries. It is a work of constitutional theory – ending by offering some explanatory models which the three states may find helpful in understanding their own emergence as fully independent entities. It is a work of constitutional law – charting the attempts, successful and otherwise, to effect the final legal separation from the UK. And it is a work of intellectual history – putting the constitutional evolution of each Dominion in its intellectual context and exploring the interplay between legal developments and their interpretation by lawyers and academics.
Oliver’s command of sources is impressive – especially when he is addressing the Canadian story. He is at his most illuminating in discussing the conflicts that bedeviled the search for a domestic formula to amend the Canadian constitution. He shows how disagreement amongst Canadians helps explain the absence of a domestic formula from the British North America Act 1867. Hence, discord was inherent in Canada’s first national constitutional settlement. And it resurfaced in successive debates over the amending formula – in the run-up to the Balfour Declaration of 1926, before the Statute of Westminster of 1931, and episodically thereafter until the patriation of the constitution in 1982. [*66]
The Canadian story provides the spine for the book. Indeed, those with a particular interest in New Zealand may consider themselves somewhat short-changed by Oliver’s bias towards Canada, of which he has specialist knowledge. New Zealand’s story – first on the road to independence with a Charter in 1840 and a constitution in 1852, but last to complete the journey – is told more briefly. Australia’s trajectory is given fuller treatment. Oliver is particularly interesting on the popular involvement in the preparation and ratification of Australia’s 1900 constitution – and on the influence this process has had on Australian understanding of its claims to full independence from the UK.
But aside from some unevenness and a structure that occasionally leads him into repetition, his comparative methodology works well: the same questions are asked, and asked rigorously, of the three case studies. And common themes are identified and used to illuminate the story of each state.
But Oliver’s final plea to the reader exposes one of the book’s few failings. He hopes that he has demonstrated the importance of constitutional theory in the course charted by the three states. It is certainly true that all readers of this work will have a richer understanding of the development of constitutional theory in the three countries. But some will surely ask whether the book has demonstrated the unimportance of constitutional theory in the political development of each nation. Oliver abhors theoretical confusion: his is a search for theoretically satisfying explanations of the transition to independence. Yet his subject is the acquisition by three countries of the ultimate authority over their own constitutions. That was an inherently messy business. It was not driven by theory – although it was undoubtedly influenced by it. As Oliver concedes, political and social pressures were to the fore: theory may have complicated the path taken, but ultimately its role was secondary. The quest for independence was not to be denied by a theoretical conundrum.
Oliver quotes Brian Slattery’s (1983) observation that Canadian independence derived not from the Statute of Westminster of 1931, nor from the Canada Acts of 1982, nor indeed did it arise from any particular legal event. Rather, it was “at root a matter of fact.” This is an uncomfortable conclusion for Oliver, but many will feel that his own analysis has tended to confirm this simple assessment of the brute realities. Politics repeatedly intrude on his subtle narrative of ideas and theories. Consider, for example the view of the Canadian Supreme Court in 1982 that the constitutional reform package taken through by the Trudeau Government was irreversible. As Oliver notes, one might have expected the Court, which in the Patriation Reference of 1981 had demonstrated its faith in orthodox Imperial constitutional theory, to regard any parliamentary act to be reversible. But the Court was not taking a view on an abstract question of theory. It was ruling on a reform package which had just been sanctioned by the UK Parliament, the federal Canadian [*67] Parliament and by all but one of the Canadian provinces.
It would have been possible to have told this story from a quite different perspective: as a political narrative with consequences for constitutional theory. This might have helped us to understand better the intellectual developments that Oliver charts. But that is to argue for a quite different sort of book from the one Oliver has written. His contribution should be praised for what it is: scholarly, rigorous and illuminating.
Slattery, Brian. 1983. “The Independence of Canada.” 5 SUPREME COURT LAW REVIEW 391.
© Copyright 2006 by the author, Andrew McDonald.