AUSTRALIAN HISTORIANS AND HISTORIOGRAPHY IN THE COURTROOM.

• Date: 01 April 2020
• Author: Josev, Tanya

CONTENTS I Introduction II The Historian as Expert Witness and the 'Facts of History' A Disciplinary Tensions B McGrath in Cubillo C Recent Cases: A Downturn in the Use of History? Judicial Hubris? History Wars? III Judges 'Doing History' and the 'Accepted Writings of Serious Historians' A Doctrinal Historiography versus General Historiography B General Historiography and Judges 'Doing' History C The History Wars IV Conclusion I INTRODUCTION

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. (1) 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'. (2) 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. (3) That view appeared to be not uncommon amongst some Australian judges sitting on native title cases in that period. (4)

Of course, using history in the courtroom is not new or novel in the 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 ('Communist Party Case') (5) 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'. (6) 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 ('Cole') (7) in 1988, and in native title disputes since Mabo v Queensland [No 2] ('Mabo') (8) 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 Dixons 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] ('Cubillo') (9) 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.

II THE HISTORIAN AS EXPERT WITNESS AND THE 'FACTS OF HISTORY'

A Disciplinary Tensions

The aforementioned scepticism shared by historians and judges revolves around the tension between the expert witness historian as a provider of 'historical fact' to the court, and the trial judge as the ultimate fact finder. At a basal level, trial judges and historians undertake a comparable task in creating a narrative of events. In gathering the relevant data to undertake this task, and interpreting that data, however, the disciplinary practices of both historian and judge diverge. Judges' work in fact-finding is shaped by the laws of admissibility and assessing evidence according to the relevant standard of proof. At a more practical level, their work is also circumscribed by time constraints and by limited access to wider resources (judges, or their tipstaves, are not able to visit archives or undertake a wider search for evidence; the Australian adversarial system obviously requires the judge to rely on evidence presented to the court by the parties). Further, in the absence of living witnesses or a lack of physical data' as is often the case when a historical question arises for the court, a judge primarily relies on documentary evidence to find facts. This includes not only primary sources, but secondary sources. Quick and Garran would be the most obvious example of an oftused, and rarely questioned, secondary source. (10) Finally, a judge's task is to answer a legal question in light of the evidence. Lacunae or uncertainties in evidence must be resolved and interpreted one way or the other to answer that question. An historian, on the other hand, would be regarded critically by their peers if their research was concluded by reference to a preponderance of secondary sources, while affording limited weight to non-documentary material (oral histories passed through the generations, for instance) or contemporaneous accounts in similar, but not identical, circumstances. Further, to view that evidence through a normative lens--to assemble evidence to buttress a decision being made in the present--is dimly regarded. Attwood has described it as 'juridical history'; (11) but it is most often damningly described by historians as 'law-office history'. (12)

Many have argued that the task of historian and judge are epistemologically incompatible. (13) But it is not just the obvious disjuncture between disciplinary practices that is problematic in the courtroom; just as problematic is the demarcation dispute between judge and historian in circumstances where the historian is offering an interpretation of the (already circumscribed) documentary sources that are admitted into evidence. Opinion or interpretive evidence is generally inadmissible unless the witness offers a specialised knowledge in the relevant area. (14) Attempts by historians to synthesise and summarise voluminous data might be seen as an acceptable exercise of their expertise, but actual interpretation of the written word, or singular pieces of documentary evidence, is another matter entirely. As Lindgren J remarked in Harrington-Smith v Western Australia ('Harrington-Smith'), (15) '[t]here is ... a question as to how much [of historians' expert evidence] is admissible as evidence of expert opinion as distinct from submission as to the interpretation I should place on historical data. (16) In other words: does the historian have a particular expertise that renders their skills of interpretation so specialised that they offer something 'above' what a judge might do? As Irving has observed, history is not a closed field: 'There are ... shared disciplinary parameters and common ways of practicing [sic] the craft [between historians], but there are no accreditation tests'. (17)

It is true that anyone can do history, but this is not to say that anyone can do rigorous history, or be regarded as having expertise in history. One does not qualify as an expert historian after following defined professional steps, as a lawyer or judge might--but this is not to say that historical professional expertise remains undefined. Regardless of whether an historian is a professional consultant, independent historian, or academic, their expertise is gained much in the same way as other social scientists: by devoting a career to historical research; by making complex choices as to methodology and being able to justify those choices; by working in the archive (18) and developing breadth of knowledge about the relevant period; by disseminating their research through a variety of 'outputs'; and by their work being received, evaluated and critiqued by clients, and public or academic audiences. There is much that an expert historian can offer in the way of interpretive skill where the historian is familiar with the type of evidence put before the court. This is especially so when the historian has already reviewed every other piece that accompanies the relevant evidence in the archive (often a painstaking task). An informed historian will also be able to identify the lacunae in the web of evidence. Whose accounts are missing, for instance? How might the expression used in documentary evidence be typical of a style widely used at...