‘Australian Historians and Historiography in the Courtroom’ by Tanya Josev in (2020) 43(3)
Melbourne University Law Review comments
This article examines the fascinating, yet often controversial, use of historians’ work and research in the courtroom. In recent times, there has been what might be described as a healthy scepticism from some Australian lawyers and historians as to the respective efficacy and value of their counterparts’ disciplinary practices in fact-finding. This article examines some of the similarities and differences in those disciplinary practices in the context of the courts’ engagement with both historians (as expert witnesses) and historiography (as works capable of citation in support of historical facts). The article begins by examining, on a statistical basis, the recent judicial treatment of historians as expert witnesses in the federal courts. It then moves to an examination of the High Court’s treatment of general works of Australian history in aid of the Court making observations about the past. The article argues that the judicial citation of historical works has taken on heightened significance in the post-Mabo and ‘history wars’ eras. It concludes that lasting changes to public and political discourse in Australia in the last 30 years — namely, the effect of the political stratagems that form the ‘culture wars’ — have arguably led to the citation of generalist Australian historiography being stymied in the apex court.
Josev states
The role of ‘history’ in the courtroom, and the role of historians in the process of tendering evidence to the court of that history, is an area of study well-trodden by academic lawyers and historians. It is probably safe to say that there is a healthy scepticism from some lawyers and historians as to the respective efficacy and value of their counterparts’ disciplinary practices in fact-finding. ‘To enter the courtroom is to do many things, but it is not to do history’, observed medical historian David Rothman. ‘The essential attributes that [historians] treasure most about historical inquiry have to be left outside the door. The scope of analysis is narrowed’. Meanwhile, on the bench, it appears that some judges take the view that, outside of the tendering of archival (and preferably documentary) primary evidence, there is little an historian can do in the courtroom that judges could not do for themselves: ‘I’m not entirely sure what the professional skills of historians bring to [the fact-finding] process, that a lawyer or judge himself or herself wouldn’t be able to bring’, an Australian Federal Court judge remarked under the cloak of anonymity in 2008. That view appeared to be not uncommon amongst some Australian jurisdiction. The (then puisne) High Court Justice Sir Owen Dixon himself saw the need for recourse to historical expertise in certain questions of fact, remarking in Australian Communist Party v Commonwealth that courts ‘may use the general facts of history as ascertained or ascertainable from the accepted writings of serious historians’ and ‘for verification refer to standard works of literature and the like’. Despite this directive, explicit reference to general historical works, or to the expert evidence of historians, has only taken on a greater prominence in constitutional litigation since the decision in Cole v Whitfield in 1988, and in native title disputes since Mabo v Queensland [No 2] in 1992. This, of course, should be contrasted against the use of what I loosely call doctrinal historiography, which has enjoyed a long and perhaps almost uncritical adoption in the Australian courtroom — this will be briefly dealt with later in this article. The modest expansion in the use of ‘history’ in the Australian courtroom has brought with it some difficulties for both judge and historian — most particularly, how to treat the testimony of an historian as a fact-finder and interpreter of evidence, when those very tasks will inevitably be revisited by the judge as the ultimate fact-finder? If so, what special expertise does an historian offer?
This article does not concern itself with the specific debates in constitutional democracies (including Australia) about the ‘dead hand’ of the law versus a ‘living tree’ perspective and the attendant questions about how history might be applied in both approaches. Instead, it focuses on the broader issue of how history at large is being used or cited in the Australian federal courts at present. It first examines the manner in which the federal judiciary treats the evidence of historians as expert witnesses (that is, experts that offer to the court, in Dixon’s terms, the ‘facts of history’), particularly in light of the flurry of critical attention given to judicial practices following the Cubillo v Commonwealth [No 2] decision in 2000. The article then moves to evaluate how the High Court in particular treats general Australian historiography. In recent times, there has been increased public scrutiny of generalist Australian works of history, particularly in light of the ‘history wars’, a set of partisan stratagems that have been employed and re-employed regularly in public discourse since the late 1990s. I conclude here that lasting changes to public and political discourse in Australia in the last 30 years have taken their toll on the public perception of the courts and the practice of history, and that, as a result, early (but incomplete) evidence shows that the High Court displays great caution in citing general works of Australian history.
