Josev on Australian Histories in Court

An advance copy of Australian Histories and Historiography in the Courtroom, Melbourne University Law Review 43 (2020), by Tanya Josev, a Senior Lecturer and the Co-Director of the Australian Legal Histories Programme, Melbourne Law School, is now available.

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.

--Dan Ernst