Mcnamara, Lawrence --- "History, Memory and Judgment: Holocaust Denial, The History Wars and Law's Problems with the Past" [2004] SydLawRw 16; (2004) 26(3) Sydney Law Review 353

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Since the election of the conservative Howard government in 1996 and the Prime Minister’s rejection soon after of the ‘black armband’ view of history, public intellectual life in Australia has seen the emergence of what have become known as the ‘History Wars’.[2] These have especially centred on the nature of the British colonial project and the place of indigenous peoples in the past and present of the nation. The protagonist historians do not shy away from the battles: the claims are not about nuances of interpretation but concern frankly stated allegations that, driven by self-interest and political agendas, academics have variously suppressed, manipulated, distorted and fabricated the historical record.

The disputes between historians raise difficult questions regarding how one goes about establishing what happened in the past, both as it pertains to colonialism and as it concerns historical scholarship more generally. These questions pervade not only the discipline and practice of history but often extend their reach into law. One of Australia’s leading genocide scholars, Professor Colin Tatz, recently argued that, in the absence of a prosecution for genocide, the best way to settle the disputes of the History Wars and to find out about the past was to use the laws of defamation.[3] This view is not shared by one key player in the History Wars — Henry Reynolds has expressed his unwillingness to proceed to court, arguing that it ‘is not the place where ideas should be fought out’.[4] Tatz, however, saw parallels and merit in the English libel action where David Irving, a Briton whose historical research on the Third Reich had been widely published and well-received for over 30 years, unsuccessfully sued American academic Deborah Lipstadt and her publishers over her claims that he was a Holocaust denier:[5]

The Irving case has been among the most recent matters to attract widespread attention, but the intersections of law and history have been dealt with in the courts in many other circumstances. They have been at the heart of prosecutions for genocidal or mass murder in numerous countries.[7] In Canada and the United States, disputes over indigenous land and treaty rights have involved extensive historical analysis.[8] Australian courts considered war crimes in the prosecution of Ivan Polyukovich and matters relating to genocide in Nulyarimma v Thompson.[9] In Cubillo v The Commonwealth the Federal Court adjudicated civil claims regarding the Stolen Generations.[10] It is, however, native title litigation that has in this jurisdiction most often seen the courts address historical evidence and the colonial past.[11] It is in the native title context that the law been most criticised for its shortcomings in dealing with history. As Christine Choo has argued, ‘It appears that the legal profession has much to learn about history as a professional discipline, and the value of the processes, method and analysis techniques of professional historians ….’[12] A key criticism has been the inability of the courts to grasp the necessarily interpretive dimension to historical scholarship, which is perhaps what prompted Reilly to emphasise the responsibility and care owed by the courts to ‘pay attention to the power and apparent conclusiveness of historical narratives’.[13] And beyond an awareness of interpretation lies the difficult terrain of the postmodern methodological challenge to both law and history that in its strongest form arguably denies the possibility of truth and objectivity in either discipline and dictates instead an anti-foundationalist relativism.[14]

While engagements between law and history may be fraught with difficulties, the often substantial consequences of litigation (if nothing else) point to the need for lawyers to develop a richer appreciation of the disciplines’ interactions. It is to this end, and with Tatz’s invocation of legal action between the Australian historians in mind, that my aim in this article is to examine the relationships at play between law and history in circumstances where historians might commence a defamation action. The History Wars, viewed against the background of the Irving case, provide an occasion for exploring what happens when historians are subjected to legal judgment. The defamation possibilities warrant inquiry not simply on their own terms, in light of Irving, but also for the ways they might inform the much-needed conversations about law and its often important dealings with the past.

The inquiry begins in Part Two by sketching the context, the content, and the stakes in the History Wars. As well as explaining the Australian disputes at issue and the material that could be the subject of a defamation action, this Part outlines the conceptual framework that will be used to explore the connections between law, history and memory. It highlights especially the significance of historical narrative for national identity and how the acceptance of a history can be embodied as memory to legitimise legal, political, economic and social relations. Part Three turns to the operation of defamation laws, first explaining the Irving case before considering how an action between the Australian historians could play out. It will be argued here that defamation mediates a unique encounter between law and history because it focuses on the plausibility of alternative historical narratives, rather than the determination of a single historical narrative that is required by native title or genocide actions. It simultaneously exhibits perhaps the most important features of those more familiar actions — the authority of a legal narrative. Parts Four and Five critically examine that authorised narrative of plausibility. They identify as key considerations the methodological differences between and within law and history; the use and misuse of postmodernism and relativism; and the role of law and legal judgment in the transmission and construction of national memory. The key contention of the paper, and the core focus of the conclusion, is that while a defamation action is not an appropriate battlefield for the History Wars, defamation laws are amenable to an evaluation of history in a unique manner. In a comparative framework, their consideration might help to provide a richer understanding of how more familiar legal actions carry consequences far beyond the rights that are the immediate subject of dispute, and how history, memory and judgment play their parts when law encounters the past.

2. The History Wars

The British claimed sovereignty over Australia under the international law doctrine of terra nullius — the land, it was said, was empty and belonged to nobody. In spite of the presence of people, it was to be treated as if there was noone there at all because the Aborigines were viewed as ‘so low in the scale of social organization that their usages and conceptions of rights and duties are not to be reconciled with the institutions or the legal ideas of civilized society.’[15] It was not conquest of a peopled land but peaceful settlement of an empty place. Until the 1970s, this legal narrative was typically reflected in historical narrative; histories of Australia generally began with the arrival of the British and indigenous people played little role in the national story, except perhaps as a doomed and dying race.Historians Henry Reynolds and Lyndall Ryan were among those who challenged this view of colonisation.[1]

[7] Reynolds, in particular, argued that ‘settlement’ involved systematic violence against and retaliation by the Aboriginal population, with a resulting death toll of 20 000 across Australia.¹⁸This picture of conquest and violent dispossession underpinned the judgment of the High Court in the 1992 Mabo case when it was held that where indigenous rights to land had not yet been extinguished, those rights must still be recognised. Justices Deane & Gaudron drew on the work of Reynolds in reaching their conclusion:

The Court’s recognition of native title and the disowning of the terra nullius doctrine was a watershed in Australian law and politics.

For much of the last eight years, however, there has been an effort to recharacterise the nation’s past and the way it should be viewed. Several months after his government took power in 1996, the Prime Minister stated to the House of Representatives that while in a personal capacity he regretted ‘the appalling way in which members of the indigenous community have been treated in the past and [believed] the truth about what occurred in our history should be taught in an unvarnished fashion’, he ‘strongly rejected notions of intergenerational guilt’.[20] The contemporary historical narrative did not itself seem to be under fire as a matter of record and would seem to be at least part of what Mr Howard had in mind when he referred to and accepted the ‘appalling’ treatment of the indigenous community in the past and the ‘black marks upon our history’.[21] However, the Prime Minister did not see that version of the past as problematic for the present:

This is the background against which the current debates should be seen, though now, some years on, the ground has shifted quite fundamentally. The core questions have for some time been about how the nation should consider the events of the past, weighing up the good against the bad, and considering whether guilt, shame, responsibility or sorrow should attach to those events. But, very recently, this has changed. In the disputes of the History Wars, it is suggested that some events have been wrongly accepted as true and, in fact, never happened at all.

A. Windschuttle: The Fabrication of Aboriginal History

These new debates have been played out in the disputes between former journalist and academic Keith Windschuttle and, especially, historians Reynolds and Ryan. In November, 2002, Windschuttle published The Fabrication of Aboriginal History, Volume 1 where he vociferously criticised what he saw as a popular version of Australian history that portrayed ‘widespread mass killings on the frontiers of the pastoral industry that not only went unpunished but had covert public support’ and constitutes genocide.²³This, he argues, is incorrect: ‘the story the historians have constructed does not have the empirical foundations they claim.’²⁴

Windschuttle does not stop at critique; he also offers a ‘counter-history’.[25]

There were no great numbers of killings in Tasmania, said Windschuttle. Ryan’s estimate of 700[27] is wrong, as are Reynolds’ claims about the inherent uncertainty in calculating the original indigenous population and the deaths from violence[28] and later writing that Windschuttle claims (arguably inappropriately) ‘implies the total was more than a thousand’.[29] Instead, there is little uncertainty and it is not a matter of estimation: there are, he claims, 118 ‘plausible killings’.[30] The indigenous population was certainly decimated but if blame is to rest anywhere, it is with the indigenous people themselves: ‘It was a tragedy the Aborigines adopted such senseless violence. Their principal victims were themselves.’[31] The aims of colonial military actions were ‘to impose law and order’ and ‘to save the Aborigines from the consequences of their own actions’.[32] Moreover, by virtue of their ‘abuse and neglect’ of their women, ‘we should see them as active agents in their own demise’.³³

But the History Wars are not about interpretation alone. They are about the strategies and motives of the protagonists. Windschuttle claims the historians have been deliberately deceptive, ‘only select[ing] evidence that supports their cause and [they] either omit, suppress or falsify the rest’; examples that do not support their theses are ‘simply airbrushed … out of history’.[34] Windschuttle also perceives a systemic element to the contemporary scholarship. He describes an ‘orthodoxy’ among a large group of authors, though that ‘is not to say that they agree on every point’ and ‘nor is it to allege a conspiracy’.[35] However, he does claim that there is an inappropriate and highly political dimension to the development and purveying of the history that has been written: ‘There is a world of difference between historians who go to the past to investigate the evidence they have about their subject and those who go to vindicate a stand they have already taken.’[36] As evidence of the latter stance and politicisation of history, he points to Reynolds’ statement in The Other Side of the Frontier that ‘the book was not conceived, researched or written in a mood of detached scholarship’ and that the issues it deals with mean that ‘it is inescapably political’.[37] Windschuttle argues that such an approach has had far-reaching effects:

This systemic element extends beyond the uniformity of the project to the motives underlying it. The reasons behind this ‘widespread corruption of Aboriginal history’ are found in the historians’ self-interest; either as the interests of ‘those academics and politicians, black and white, who have built their careers from [these] shoddy materials’, or as a religious struggle between sin and redemption, where the ‘historians have set themselves up as prophets’ and ‘will withhold their blessing until the nation recognises and confesses its mortal sin’.[39] In the end, the historians’ orthodoxy has intentionally misled the nation, building ‘mythologies designed to create an edifice of black victimhood and white guilt’.[40]

B. The Response to Windschuttle

Windschuttle’s position attracted attention when first published in the conservative journal Quadrant in 2000.[41] A forum at the National Museum of Australia in December 2001 produced a major collection of the issues and included a paper by Windschuttle.[42] After Fabrication was launched, the public profile of the debates was remarkable.[43] In the seven weeks that followed there were over 25 editorial or op-ed pieces in the three broadsheet newspapers in Sydney and Melbourne, along with countless letters to the editors, numerous interviews in the broadcast media, and several public debates around the country. Within a year, two books were published that aimed at a popular, rather than academic, audience. Macintyre and Clark’s The History Wars sought to frame the current debates in light of earlier disputes about Australian history and historians.[44] Robert Manne’s edited collection, Whitewash: On Keith Windschuttle’s Fabrication of Aboriginal History, brought together scholars from history and other disciplines with the aim of devoting enough space to the issues that there might be some resolution of the arguments in ‘a thorough, expert discussion of Windschuttle’s case’.[45]

The responses in Whitewash ranged from more general considerations of the context and significance of Windschuttle’s arguments to systematic treatment of discrete parts of his thesis and analysis. The contributions from Reynolds and Ryan were very much concerned with his attacks on them and in parts were arguably as vitriolic as the attack they were responding to, alleging to various degrees that Windschuttle himself had engaged in distortion, manipulation and fabrication in his writing.[46] The subtitle of the book — On Keith Windschuttle’s Fabrication of Aboriginal History — has no inverted commas around the last four words and, whether intentionally or otherwise, it appears, in light of the book’s content, as a cleverly worded allegation against Windschuttle. Further, among the issues that regularly arose was Windschuttle’s status as a writer on Tasmanian or Aboriginal history. He had published academic work on the media but, some of the combatants maintained, he was ‘a freelance writer’ or a journalist and not a historian.[47]

The revisionist nature of Windschuttle’s work was called into question. Was this an exercise in denialism characterised by either an unconscious psychological defence or a conscious bad faith (both more familiar to analyses of Holocaust denial), or was it a genuine exercise in historical scholarship and appropriately labelled as revisionism? Reynolds and Ryan are themselves viewed as revisionists in the literature, and a number of contributors to the debate accord Windschuttle the same status, though not necessarily the same success.[48] But the labels are not so simply applied. Dirk Moses examines carefully the ideas of revisionism and denialism, arguing that:

of the operation of a psychic defence mechanism with which denialists protect themselves from the traumatic consequences of having to incorporate uncomfortable facts into a closed and rigid ideological framework …. The denier is unaware of his or her own repression, yet the uncomfortable facts will not go away.50

Alternative analyses of denial do not rely on a repression-style analysis but argue that it is a more consciously deceptive practice.[51] Moses is reluctant at this stage to call Windschuttle a denier, though says that his approach has so many parallels with denialism that ‘the signs are not good’.[52]

C. What is at Stake

The historians’ disagreements are, most certainly, disputes about the past. But, just as much, these debates are also about the present. They directly concern legal and moral claims to political and economic justice for Aboriginal people. Implicit in Windschuttle’s position is the disconnection between past and present: because there was no wrong done in the past there can be no historical foundation for claims to justice in the present.[53] This is the inverse of the implications in the Reynolds/Ryan position. However, a historical narrative as an explanation or representation of the past will not of itself resolve such claims. The Prime

Minister’s rejection of the ‘black armband’ view of history did not necessarily require a denial of the events of the past. Rather, events were placed into a different framework which might be thought of not as an historical narrative, but as a national narrative within which the past is embodied.[54]

By ‘national narrative’, I mean the ways the nation interprets and explains its identity. It includes the stories the nation tells about its values, about its past, and about the relationships between its citizens. It is national narrative that makes sense of and legitimises our legal, political, social and economic relationships. Accordingly, it can be mobilised or appealed to in support of a particular stance regarding those relationships. For example, Macintyre and Clark discuss how history has formed a part of this narrative and how different interpretations suggest different consequences:

By framing and then rejecting the post-Mabo interpretation of the past as a ‘black armband’ view of history, the Howard Government sought first to identify negatively the national consequences of that legal watershed and then claimed it was remedying them through measures such as the amendment of the Native Title Act 1993 (Cth), winding back the recognition of indigenous claims to land and nullifying the protective effects of the Racial Discrimination Act 1975 (Cth) to do so.[56]

There is little disagreement among the warriors that the national narrative, embodying the past as it does, is also inherently tied to the History Wars in a moral sense. Windschuttle argues that ‘the debate over Aboriginal history goes far beyond its ostensible subject: it is about the character of the nation and, ultimately, the calibre of the civilization Britain brought to these shores in 1788.’[57] Ann Curthoys describes it as ‘a debate about the moral basis of Australian society.’[58] Krygier and Van Krieken restate the stakes in Windschuttle’s terms, but distinguish their argument by noting the engagement that goes with it:

This sense of moral engagement with history and its national significance has been addressed in both legal and historical literature through the concept of memory, and provides a useful bridge between the disciplines.

Collective memory was the phrase used by French sociologist Maurice Halbwachs in the 1920s when he argued that memories are constructed by social groups. Not all events move from the individual to the collective memory, but there are on occasions events that are ‘imbued with the concerns, interests, passions of a nation’ such that they become landmarks for individual and collective selfunderstanding.[60] As Osiel explains it, these affect the nation because they are events ‘of such moral magnitude’.[61] The Holocaust has been a key site for examining the concept of collective memory. There, Henry Rousso says it ‘designates the living presence of the past’ or, to use Peter Novick’s explanation, it is about ‘the ways in which present concerns determine what of the past we remember, and how we remember it.’[62] It is transmitted, argues Burke, through oral traditions, written records, images, actions (such as the ANZAC Day holiday and the dawn service), and spaces (such as the national war memorial in Canberra) which attempt ‘to impose interpretations of the past, to shape memory’.[63] In Pierre Nora’s words, these are ‘lieux de mémoire’: ‘roots’ or ‘sites’ of memory.[64] In this way, writings of history become in western societies (that rely on written rather than oral histories) a source of transmission and struggle for our collective memory.

While it is the idea of ‘nation’ rather than ‘memory’ that has been at the conceptual core of Australian writings, Hamilton points out that national formation ‘always necessitates a dual process of inclusion and exclusion and remembering the past is a central mechanism of that process.’[65] In a nation not so long ago admonished by Stanner for its ‘cult of disremembering’ and ‘forgetfulness practised on a national scale’ where indigenous issues were concerned, history — as the basis for remembering — is exceptionally important.⁶⁶The interdependent relationships between history and memory are characterised by tension and conflict.[67] Burke eloquently describes historians as ‘the guardians of awkward facts, the skeletons in the cupboard of social memory.’[68] Their task, he says, is that of the remembrancer — ‘to remind people of what they would have liked to forget.’[69] When law deals with history, it occupies an important place in this framework. A trial is an action that informs and is mediated by memory, and the judgment constitutes an authorised record of the history it examines.

The stakes in the History Wars are high. At issue is the self-understanding of the nation and its past within which indigenous and non-indigenous relations will make moral sense. And so it is that this article looks at how defamation law might serve to inform an understanding of matters that are so close to home.

3. Defamation, Truth and History

The laws of defamation provide the legal foundation for Colin Tatz’s call for an Australian action along the lines of that in Irving v Lipstadt. Defamation is relevant to the disputes between the historians because the tort protects reputation, and the allegations in the History Wars go to the reputation of the individuals involved.

For the purposes at hand, the relevant laws can be stated quite simply: to be defamatory a statement must have a tendency to lower a person in the estimation of ‘ordinary decent folk’ or ‘right-thinking persons’ in the community.[70] Allegations of wrongdoing or dishonesty which typify defamation actions clearly have the requisite tendency. Although there has been no defamation action launched by any of the historians, there is little doubt that there would be grounds for it. Windschuttle’s accusations that Reynolds and Ryan have fabricated and distorted data would, given their status as historians, be defamatory of them, as would the allegation that they have done this in order to further their personal and political agendas.[71] The responses by Reynolds and Ryan make similar allegations and would arguably provide Windschuttle with adequate grounds to commence proceedings.⁷²who wrote and published the allegations can only avoid legal responsibility if they can establish a defence. The most relevant defence here will be justification.[73] The defence of justification requires that the publisher prove that what they wrote is true.[74] This would be at the core of any defamation action involving historians and, as will become apparent, it is not a straightforward issue to resolve.[75] The Irving case helps in exploring how a defence of truth might play out, illustrating the issues to be resolved and how the relevant laws have been applied.

A. Irving v Penguin & Deborah Lipstadt

In Denying the Holocaust: The Growing Assault on Truth and Memory, Deborah Lipstadt accused David Irving of deliberately distorting, falsifying and misstating evidence in his historical research, arguing that Irving could be appropriately labelled a ‘Holocaust denier’.[76] When Irving sued for defamation, Lipstadt and her publishers had to prove the truth of what had been written. For the purposes at hand, there were two key aspects to this: there was the need to prove the allegations regarding historical scholarship and also a requirement that the intent to deceive be proved.⁷⁷

(i) Distortion of the Evidence

When trying to prove the truth of what was written about Irving’s scholarship, there was a need to distinguish between proving on the one hand the truth of the Holocaust and, on the other, proving the truth of the allegation that Irving had distorted, falsified or misrepresented the evidence. Justice Gray tried to avoid the former:

Justice Gray held that the standard by which Irving should be judged was that of the ‘objective, fair-minded historian’.[79] Thus, in examining Irving’s conclusions, the judge was not required to ask whether the events did in fact occur as Irving claimed they did, but, instead, whether Irving’s version of events was one of any number of conclusions that an objective, fair minded historian might have reached given the available evidence. Or, to put it another way, Lipstadt had to establish that no objective, fair-minded historian could have reached the conclusions Irving reached. The effect of this was that although Justice Gray was not making definitive factual conclusions about what happened during the Nazi regime, he was ascertaining a range of possible conclusions. He was effectively spelling out some of the limits of what may or may not have happened.[80]

(ii) Motivation

Were Irving’s falsifications and distortions deliberate ‘in the sense that Irving was motivated by a desire borne of his own ideological beliefs to present Hitler in a favourable light’?[81] His Honour held that a range of evidence might be relevant in making a determination about this:

On the facts, Gray J found that Irving’s motivations were improper and the distortion was intentional. He focused in particular on ‘the convergence of the historiographical misrepresentations’:

The final outcome of the case was a comprehensive finding against Irving, with Penguin and Lipstadt having proved the substantial truth of the allegations they had published about the quality of Irving’s scholarship (the distortion question) and his honesty as an historian (the motivation/intention, question). The case is not binding authority on Australian courts as precedent but it would certainly provide the legal background against which a defamation action between historians would run in Australian jurisdictions. There are substantial parallels with the issues of distortion and motivation, and there would be a strong case to adopt and apply the test of the ‘objective fair-minded historian’.[84]

B. Defamation and the History Wars

(i) The Possible Scenarios

Were a defamation action to be run on the basis of some of the published material in the Australian disputes, there could be a range of possible actions, and for each action a range of possible outcomes. Table 1 sets out the core options using the Reynolds & Ryan position and the Windschuttle position as representative of the opposing parties and points of view. It then shows the main possible finding for each action, and a brief description of what each outcome might mean. It is important to note that the table greatly simplifies things. It does not factor in matters of uncertainty relating to establishing the plaintiff’s case, defences other than justification, or the possibility of adverse comments from a judge regardless of which party prevails in the action. The discussion is based on the decision being rendered by a judge (as it was in Irving) and not a jury. A jury would consider the same questions but would not provide a reason for their findings.[85] However, the table does allude to the place of ‘substantial truth’ in the defence of justification and this requires some explanation.

The defence of justification does not require that a defendant prove the truth of everything they have written. Instead, they need only prove that the publication is substantially true; the substance of the allegations must be proved to be true in the sense that what has been proved true means that the plaintiff’s reputation has been justifiably damaged to such an extent that it makes no real difference whether the remaining allegations are true or untrue.[86] This means that although a defendant might have made some allegations they cannot prove are true, that may not prevent them proving the substance of their case. For example, a court may accept that of a dozen allegations of fabrication, perhaps only some are justified and the other allegations are unfounded. Or perhaps there may be a finding for the defendant on the grounds that the evidence has been distorted and falsified, but the defendant may not be able to establish that the plaintiff was deliberately and politically motivated to do so. This means that a decision in favour of one party may be heavily complicated by adverse findings against that party on some issues.[87]

In this light, Table 1 and the accompanying discussion should be seen as an analytical framework rather than a comprehensive picture of the possibilities. As the first two columns show, the possible actions and outcomes are fairly straightforward. The third column of the table shows that even though all the findings turn on the defence of justification, and the standard required (using Irving) would be that of the ‘objective, fair-minded historian’, the meaning of each of the four possible findings is quite different.

Action (Plaintiff v defendant)	Finding for	Nature of finding (ie, This means …)
Reynolds/Ryan v Windschuttle RR argue that KW has defamed them with his accusations in Fabrication that they have deliberately falsified and	Reynolds/Ryan	The court finds that RR have not (or at least not substantially) deliberately falsified or distorted the evidence. Their version of the past is one which an objective, fairminded historian could agree with. This finding says nothing at all about whether KW’s counterhistory is or is not a plausible version of events. It says only that RR’s version of events is plausible.
distorted the evidence. KW must prove the truth of his claims.	Windschuttle	The court finds that, as KW claimed, RR have falsified and distorted the evidence. No objective, fair-minded historian could write the history as they have done. This finding says nothing at all about whether KW’s counterhistory is or is not a plausible version of events. It does, however, suggest that RR’s version is implausible.
Windschuttle v Reynolds/Ryan KW argues that RR have defamed him in Whitewash when they allege that he is the one who distorted the evidence.	Windschuttle	The court finds that KW has not (or at least not substantially) deliberately falsified and distorted the evidence. His version of the past is one which an objective, fair-minded historian could agree with. This finding says nothing at all about whether RR’s version of history is or is not a plausible version of events. It says only that KW’s version is plausible.
RR must prove the truth of their claims.	Reynolds/Ryan^[*]	The court finds that, as RR have claimed, KW has indeed deliberately falsified and distorted the evidence. His version of the past is one which an objective, fair-minded historian could not agree with. This finding says nothing at all about whether RR’s version of history is or is not a plausible version of events. It does, however, suggest that KW’s version is implausible.

^[*] This action and outcome is the closest parallel to the Irving case, where Irving as the selfproclaimed revisionist was the plaintiff, Lipstadt the defendant, and the court found in Lipstadt’s favour.

The top half of the table shows the position if Reynolds and Ryan were to be plaintiffs in an action against Windschuttle. It would be Windschuttle’s task to prove the truth of what he had written: viz, that Reynolds and Ryan had falsified and distorted the evidence, and that they had done so deliberately. This means that, first, Windschuttle would have to establish that even though there may be a number of possible versions of the events of the past, the histories written by Reynolds and Ryan were beyond the realm of plausibility. For example, he would have to persuade the court that no objective, fair-minded historian could have concluded that there was frontier warfare in Tasmania, or that the Aboriginal death toll reached into the several hundreds or over a thousand. Second, Windschuttle would have to prove the deliberate nature of the falsification and distortion that he claims have occurred. Here, the convergence of errors that was the focus in Irving would be at the heart of Windschuttle’s arguments, just as it is a key contention in his book. This issue would be complicated by the differences of methodological opinion regarding the (im)possibility and/or (in)appropriateness of detached scholarship that fuel the disputes.

The lower half of the table shows the reverse position. If Windschuttle were to sue Reynolds and Ryan then the latter two would as defendants have to establish that Windschuttle’s version of history was not one which an objective, fair-minded historian could reach. Both the distortion and motivation questions would be in issue, and this time the convergence questions would focus on Windschuttle with regard to motivation.

(ii) The Operation of the Action

A number of significant points emerge in considering how the action works. First, a party will be in a fundamentally different position depending on whether they are a plaintiff or a defendant. In particular, it will always be the plaintiff’s work which is under the microscope; one cannot put an opponent’s thesis to the test by commencing legal action against them. For example, if Reynolds and Ryan commenced a defamation action then the court would consider whether their theses are plausible. In doing so, it will consider Windschuttle’s criticisms of their scholarship but it will not consider the merits of his counter-history. Even if they were to prevail, there is no certain opportunity for a finding that discredits Windschuttle, except perhaps to the extent that a judgment may indicate his criticisms are unwarranted and perhaps that Windschuttle’s thesis is inconsistent with the findings of fact. Thus, regardless of the outcome, there is no formal determination about the merits or otherwise of a defendant’s version of the past. The Irving trial was in this sense remarkable as it was only because Irving commenced the action that his work was subjected to scrutiny.

Second, a court’s determination will not present a statement of what happened in the past. Rather, it is only a finding of plausibility or implausibility. Consider, for instance, the position where the court finds the defendants are unable to prove their claims. This would be a finding that the plaintiff’s thesis is plausible. That is, the court thinks an objective fair-minded historian could have reached the same conclusion the plaintiff did about the events of the past. Compare this with the opposite outcome (as happened in Irving) where the finding is that an objective, fair-minded historian could not have concluded as the plaintiff did. Here, the plaintiff’s version of the past is implausible. The former finding does not exclude any versions of the past, and the latter finding will exclude only certain versions of the past, but neither conclusion presents a finding about how things were. As Part Four will discuss, this makes a defamation action quite distinct from other legal actions that look at history.

Thirdly, the court’s finding will depend on the evidence available, and that will in turn depend on the type of historical inquiry at issue. In the History Wars, a defendant’s task would seem to be more difficult than Lipstadt’s was in Irving because the events occurred in the early 19^th century. The documentary evidence associated with them — which will always be appealing to legal standards — is far less extensive than that surrounding World War II. On that basis, it might be thought that it would be more difficult to exclude some versions of the past and hence a finding that the plaintiff’s work is implausible would be more difficult for a defendant to secure. Without drawing a conclusion about the merits of the positions, it seems most likely that the empirical work in Whitewash that critiques Windschuttle’s use and interpretation of sources would provide the basis for a finding that an objective fair-minded historian could indeed reach the same conclusions that Reynolds and Ryan have and that their theses are plausible. It is difficult to tell how a court would view those same materials in determining the plausibility of Windschuttle’s position.⁸⁸

Fourthly, a combination of the nature of the evidence, the need to prove only substantial truth and the possibility of adverse judicial comment on the successful plaintiff’s scholarship mean a finding may not be comprehensively in favour of one party or the other. Consequently, a finding in favour of or against a party may not necessarily be a complete or even an accurate indicator of the court’s view of the history presented by that party.

Finally, the strategic value of commencing an action will differ for the parties. In either of the actions, there is more to be gained by the defendant because if you can prove the truth of your allegations about the plaintiff then you can obtain a finding that your opponent’s version of history is implausible. If as a defendant you do not succeed then your own position is not necessarily discredited and, strictly speaking, the worst result is that your opponent’s version of history is a plausible one. Of course, that result could indeed be damaging: for instance, if Lipstadt (the defendant) had not prevailed in the English case, then the court would have been accepting as plausible the proposition that the Holocaust did not occur. However unattractive the possibility of such an outcome may have been, it is the existence of different possible outcomes that gives such weight and authority to legal adjudication.[89] In the circumstances here, Reynolds & Ryan would perhaps have little to gain from commencing an action. A finding that their work is plausible entrenches their existing position but they cannot put Windschuttle’s thesis to the test. Moreover, even if successful, there is the possibility of adverse judicial comment on their own work and that would potentially be highly damaging, especially to the extent that they suggested the High Court’s acceptance of the historical work in Mabo was unwise. For Windschuttle, on the other hand, there is a great deal to gain by commencing an action. A favourable finding would cast a legal legitimacy to his place in the debates, regardless of any adverse judicial comment that accompanied it. Conversely, a great deal more is at risk for Windschuttle: at its most devastating, a finding that his version of the past is implausible would discredit his work so greatly that it would probably exclude him from the mainstream debate.

In the end, even looking at just the basics of a defamation action, it would be an inherently complex proceeding. It would not come to conclusive determinations about the events of the past, but would instead make determinations about the plausibility or implausibility of possible versions of history, neither of which would necessarily be clear. That should not of itself dictate a conclusion that there is no merit in Tatz’s suggestion that a defamation action is appropriate. The problems, however, increase exponentially when the findings are considered in their theoretical and political contexts. These are the subject of Parts Four and Five which look at law’s comprehension and mediation of history, and the relationships between law, history and memory. In an attempt to illuminate more clearly the complexities of these relationships in the context of defamation actions between historians, I hope to provide a point of comparison that might help make a little clearer how law and history interact in the processes and outcomes of other types of litigation.

4. History, Truth and Law

The introduction to this article noted that among the most persistent criticisms of the way law deals with history has been the former’s inability to comprehend the way the latter inquires about the past.[90] These criticisms have much to do with the different methodological frameworks of legal and historical inquiries.

A legal inquiry relies on the ascertaining of evidence so that an inference can be drawn about a particular state of affairs. It operates within an epistemic paradigm that assumes (in its stronger and more traditional positivist form) there is an objectively knowable truth ‘out there’ that can be revealed by research or (in the less strident and what might be seen as an interpretive form) that there are different versions of history which might each be appropriately seen as ‘true’ interpretations of the past but there are other versions which are definitely not true.[91] There is, however, a further shift in the literature. Like many other disciplines, history has been subjected to the influences of postmodernism and poststructuralism. Contemporary historiography is characterised by the exploration of tensions between traditional methodologies and more perspectivist, anti-foundationalist orientations.[92] Law as an academic discipline has similar conflicts, but as a matter of practice it requires at least some element of what Fay terms the ‘scientific attitude’ within which the past is knowable independently of the perspectives and interests of investigators.[93] To what extent and in what ways might defamation be any more accommodating of methodological diversity than other legal inquiries?

In actions related to native title or the prosecution of individuals for their participation in wartime atrocities, the courts are required to form a view on what happened in the past. That view will be taken from a selection of alternatives that are shaped by the strictures of legal procedure and evidence; it will be limited by the answers that must and can be given to the questions the law requires and permits to be asked. Bell claims that ‘the most profound disjuncture between the culture of historians and the culture of the courts is the different way the two pursue the search for truth,’ and the evidentiary presumptions skew that search.[94] The court’s view will be shaped by its ‘preoccupation … with the finality of determination, as opposed to the historian’s acceptance of ambiguity and conflicting interpretations’.[95]

In France, the prosecutions in the 1990s of Paul Touvier and then later Maurice Papon for crimes against humanity committed during their service in the collaborationist Vichy government has been engulfed by controversies over historical and legal narrative. Henry Rousso, a leading historian of the period, refused to give evidence as an expert on the grounds that:

Nancy Wood explains that Rousso and fellow historian Éric Conan saw a fundamental opposition between what was required by the court and what their discipline engaged in:

The sentiment is echoed in Goodall’s critique as it concerns indigenous history where she argues that law holds ‘a commitment to a simple view of the past, of the possibility of learning the “facts” and making judgments of guilt and responsibility’.[98] Recent historical scholarship, she argues, demands ‘a more sophisticated appreciation of the fragmentary nature of our evidence and understanding of the past, and so a questioning of the aspirations … to tell a single, simple “true” story.’[99]

The first problem here is, as the historians argue it, that the incommensurability of the courtroom and historical discourses means they cannot talk in court about history as history. Second and consequently, the historical narrative that emerges in court is not, it might be argued, a historical narrative at all; that is, the history that law produces isn’t really history as such. The trial of Papon provides a good example where, in judging his role in the deportation of Jews, the question arose about his knowledge of the Final Solution.

Rousso argued that the question of knowledge could not be formulated in the legal manner required. To ‘be in possession of the information and not assimilate it’ might be to say that one ‘knew’ about the Final Solution, but that may not constitute the requisite legal certainty.[100] Richard Golsan explains that Jean de Maillard, a lawyer rather than historian, argued that the trial could not capture or convey history because in order to judge Papon:

Nor could the question of Papon’s knowledge ‘grasp the inner logic of the event’ where ‘knowledge and cognition’ were disconnected:

For the historians, any legal finding about Papon’s state of mind would be inconsistent with a historical narrative because history could not be explained on the terms required by the court. Does a defamation action accommodate or narrate history any differently?

A defamation case like Irving or a possible action in the History Wars is amenable to the traditional positivist or interpretive forms of inquiry: evidence is adduced and the state of affairs to be determined is whether the plaintiff has deliberately fabricated and distorted their writing of history. Given the ‘objective, fair-minded historian’ test, the court has to effectively determine whether the version of history at issue constitutes a plausible version of events. This will require an examination of the past, but it is a fundamentally different consideration of history than that which takes place in native title cases or criminal prosecutions. It is different because to a significant extent the debate about history takes place on the historians’ terms.

The court does not need to arrive at a conclusion about what happened in the past. Rather, it need only arrive at a conclusion about what might have happened. The ‘oceans of uncertainty’ can be acknowledged because the search is for plausibility and not the certainty of a historical narrative. Although it might well be argued that the legal framework will be more comfortable with positivist interpretations in evaluating the evidence, a defamation action between historians is nevertheless significantly more accommodating of methodological diversity than the other legal inquiries.[103]

Within limits, this sort of action permits history to enter the court as history. Those limits are set down principally by the defence of justification because that requires a conclusive determination about falsification (i.e., the plaintiff either did or did not engage in fabrication and distortion). To make that determination the court must distinguish between plausible and implausible version of events. The nature and extent of the available evidence will, of course, impact upon the range of plausible possibilities, but within these limits of plausibility, the court can accept any number of versions of the past without needing to judge their persuasiveness any further. This accommodates both traditional positivist and interpretive methodologies of history. The defence of justification cannot, however, accommodate an “anything goes” methodology because it order to judge falsification it must be able to exclude as implausible some versions of events.

Defamation may be more accommodating of interpretive methodologies but to what extent and how, if at all, might the remaining limits be problematic? In particular, is it impossible for defamation law to accommodate postmodern historiography?

B. Relativism, Revisionism and Denial

The exploration of postmodern historiography occupies a curious place in the framework used here to examine the relationships between law and history. Postmodern views of historical scholarship did not arise overtly in Irving v Lipstadt because the parties were very much operating on the same methodological assumption that the past is objectively knowable. Similarly, postmodernist perspectives have not played a strong role in the History Wars.¹⁰⁴Indeed, many of the contributors to Manne’s Whitewash collection criticise Windschuttle on essentially empirical grounds, while in his earlier critique of postmodernism’s influence on history, Windschuttle himself praised Reynolds as a historian who had not succumbed and who was producing valuable historical works.[105] It would, however, be a mistake to neglect postmodern historiography in the analysis.

Postmodernism warrants attention because, first, this article aims in part to use defamation law as a point of comparison for exploring how law copes with history in other circumstances and, as such, a full examination of how the different historiographical positions can and cannot be accommodated by the law paints a more complete picture of the relationships. Second, the attacks on Reynolds and Ryan take place against the background of a critique of the implications of postmodernism for contemporary history and politics. Windschuttle has argued that the postmodern politicisation of historical scholarship has led historians to ‘indulge in the politics of their favoured minority groups’ with Reynolds and Ryan among those who have taken the view ‘that evidence can be treated in a cavalier fashion and that what matters is the “big picture” or the political ends served [which are] Aboriginal political interests, especially the justification of Aboriginal political sovereignty.’[106] Thirdly, attempts to revise history have exhibited a tension between the rejection and embrace of postmodern tenets. This has been especially noteworthy where the Holocaust is concerned and, in the search for good faith and motivation that underpins revisionist history, the operation of defamation law provides a point of contrast to other legal restrictions on speech.

(i) Postmodernism and Relativism

There is no reason why the legal need for a threshold of certainty in defamation law should be unsettled by postmodernism. On the contrary, there is much to suggest that these perspectivist insights rely upon the possibility of factual knowledge and are in this way entirely consistent with the legal framework of defamation. When one draws distinctions between postmodernism and relativism (rather than equating them), some criticisms of postmodernism appear misplaced on both theoretical and empirical grounds. The literature does not suggest that postmodernism (or poststructuralism) necessarily leads to what might be thought

of as factual relativism. That is, it seems clear that one can adopt postmodernist/ poststructuralist tenets and yet still accept the ‘facticity’ or ‘factuality’ of the events of the past.

Garton argues that critics have misunderstood and characterised the school of thought inappropriately, ‘creating a “straw poststructuralist” easily demolished’.[107] Windschuttle, for instance, argues that under postmodernism ‘the pursuit of something as objective as the truth becomes a mere pipe dream.’[108] This, he says, is:

However, those who adopt postmodern positions do not apparently see themselves putting knowledge of the facts or events of the past beyond reach. For Garton, poststructuralism ‘is not so much a denial of a usable past as a caution about the difficulties of using it.’[110] Peter Burke clarifies his position carefully:

Kellner states that to understand history as being constructed ‘is not to reject those works which make claims to realistic representation based upon the authority of documentary sources’.[112] Stanley Fish’s anti-foundationalism does not prevent him accepting ‘as a matter of fact about which I have no doubt’ that the Holocaust occurred.[113] Berkhofer points out that the admission of interpretive diversity into history ‘is not to endorse the so-called revisionist denial of the acknowledged horrible facts.’[114] Critics such as Shermer and Grobman would not appear to see this as being at all unusual, arguing that when ‘historical relativism’ is confronted with the Holocaust it just falls away: ‘Ask deconstructionists if they think that the belief the Holocaust happened is as valid as the belief that it did not happen, and the debate quickly screeches to a halt.’[115]

To categorise postmodernism under a blanket heading of relativism is inappropriate and unhelpful. It seems better to characterise postmodernist perspectives as strongly interpretive approaches that enrich history. This is consistent with the views of its advocates, and even its strongest critics see important and useful historiographical insights in postmodernism.

None of this is to say that anti-foundationalism might not lay down potentially relativist challenges for history, and thus for law. It does — but they are not factual challenges. They are primarily interpretive and ethical challenges, and both are relevant in considering the implications of postmodernist historiography for the Holocaust. Berkhofer notes that even to describe the Holocaust as “the Holocaust” is a colligatory exercise, binding and labelling events in narrative form.[117] Some dilemmas regarding the ethical challenges emerge in the debate between Weisberg and Fish. Even though postmodernism does not compel, in Weisberg’s words, ‘the avoidance of central realities’, it significantly displaces the possibility of grounding a moral judgment that informs one’s evaluation of those realities, or of using or reflecting on those realities as part of a normative framework within which events can be judged.[118] threshold level of truth, defamation is quite clearly able to accommodate postmodernist historiography.

(ii) Postmodernism and Denial

There is a second reason why postmodernism should not raise factual problems for a defamation court dealing with history. Although different versions of the past may derive from postmodernist interpretive diversity, there is no reason to see that as the source of all different narratives put before the court. It is possible that spurious versions of events may have their roots in denialism. Lipstadt argued in Denying the Holocaust, which contained her attack on Irving, that Holocaust denial was a part of the ‘attacks on history and knowledge’ that were brought about, fostered and tolerated by postmodernism. But she does not argue that Holocaust denial is characterised by postmodern sensibilities — denial, she says, is ‘a movement with no scholarly, intellectual or rational validity.’[119] Instead, Lipstadt sees the problem as being that postmodern intellectual currents allowed denial to go unchallenged and be accepted as ideas rather than be seen as the bigotry that it is.[120] Lipstadt and Irving are both apparently working on the basis that history is knowable. Irving’s work is more appropriately characterised as attempting to disguise the truth rather than reveal it, but that is a strategy of denial and certainly not a postmodern methodology.[121]

It is clear from the Irving case that a defamation framework provides an opportunity to address denialism by looking at motivation. That is, although denialism is on the one hand concerned with challenging a historical narrative, it is the unmasking of motivation that distinguishes between denialism and genuine revisionist projects of interpretation. The distinction has arisen in other circumstances. The Canadian Supreme Court considered in R v Zundel whether the defendant’s distribution of a pamphlet that denied the Holocaust occurred constituted the criminal offence of spreading false news.[122] In the face of Zundel’s argument that ‘history is all interpretation’ and ‘there is no objective historical truth’, the split between the majority and dissent helps makes visible the somewhat unique and important way that defamation law avoids the pitfalls of legitimising denial by compelling an examination of motivation and passing judgment on the plausibility or implausibility of historical narratives.[123]

The majority in Zundel adopted a line of reasoning which did not attempt to distinguish between the status of different factual claims. Rather, it treated any and every claim as potentially valid, afraid that a lack of protection might result in conviction for any statement that ‘does not accord with currently accepted “truths”, and [lend] force to the argument that the section could be used (or abused) in a circular fashion essentially to permit the prosecution of unpopular ideas.’[124] The majority were concerned that:

Particularly with regard to the historical fact — historical opinion dichotomy, we cannot be mindful enough both of the evolving concept of history and of its manipulation in the past to promote and perpetuate certain messages.[125]

The reasoning identifies the potential for manipulation of history by the state (and views free speech as a protection against that), but there is no search for any way to prevent the judgment allowing the harmful manipulation of history by non-state actors.

The dissentients were expressly critical of the majority. They acknowledged the significance of interpretation in history but did not see the interpretation argument as relevant in the circumstances.

The court did not leave room for debate about the facts of the Holocaust. It was, they found, plain and simple that Zundel had lied.[127] The deliberate distortion was a core factor in the reasoning:

Regarding the place of interpretation and relativism in history, two points might be taken from Zundel to inform a discussion of defamation. First, a defamation action does not allow for the misguided factual relativism supported by the majority. They failed to recognise the significance of this in spite of their express comparison with the need to determine the truth or falsity of a statement in defamation.

A court that hears a defamation claim cannot take this position because whether or not ‘complex social and historical facts’ are at stake, the defence of justification requires an acceptance of some factual position in the form of the plausibility or implausibility of a version of history. The defence of justification is simply not vulnerable to the manipulation of free speech arguments such as those accepted by the Zundel majority. Second, as the dissenting opinion points out, there is a need and a way to distinguish between revisionism as historical scholarship and revisionism as denialism: the latter is characterised by the bad faith of deliberate misrepresentation, manipulation and fabrication. As the Irving case makes clear, a defamation action invites speculation about motives in a way that was excluded by the majority in Zundel.[130]

In sum, different types of legal actions accommodate history and historians in different ways. The prosecution of war crimes and actions relating to indigenous land rights are exemplary instances of the incommensurability of legal and historical discourse; the legal inquiry and its resolution cannot accommodate the inherent ambiguity and interpretation of historical inquiry. Consequently, it is inappropriate to see a version of the past generated in the courtroom as a form of history. A defamation action between historians is different, being able to accommodate history on history’s terms. It does not provide a version of events as a narrative (as native title or war crimes prosecutions do). Nor does it lapse into an unnecessary and inappropriate relativist framework within which all versions of history are equally valid or into an absolutist free speech position where nothing can be prohibited. Rather, it acknowledges the possibility of a knowable past and, by operating in terms of plausibility, it excludes or includes historical narratives under challenge, working with a threshold level of historical truth, but leaving room for a range of possible versions of the past within that scope of plausibility. In the case of the more pernicious use of historical evidence to misrepresent the past, defamation enables a dual function of testing the distortion of that evidence by judging its plausibility and examining the motives of the author in order to distinguish between revisionism and denialism. The laws of defamation thus enable the judgment of both history and of historians, but the way such judgment is cast raises questions that are more appropriately considered in the framework of memory.

5. Law, Judgment and Les Lieux de Mémoire

Memory, it was argued in Part Two, is central to the nation’s historical and moral self-understanding. When law encounters history in the courts, it takes an important place in the shaping of memory. The relationship between law and memory has been examined primarily in the context of prosecutions for war crimes, especially in France. That literature provides much of the basis for an exploration of memory as it concerns legal judgment and Australia’s colonial past.

Henry Rousso expressed the link between the trial of Maurice Papon and the French national memory as being ‘a ritualized interpretation of the past that is dependent upon the expectations of the present [and its] objective is to inscribe this past in collective consciousness, with the full force of the law and the symbolism of the legal apparatus.’[131] The role of the law has become increasingly important in the incorporation of history into memory, especially with what has been described as the increasing ‘judicialisation of the past’.[132] Though it occurs most notably in prosecutions for crimes against humanity, Rousso also includes in this phenomenon trials relating to Holocaust denial.[133] A defamation action between the Australian historians could be seen in the same light.

In Mark Osiel’s discussion of law and remembrance, he articulates some of the ways that law informs memory. Though primarily concerned with prosecutions for war crimes that occurred in the course of events within living memory, the analysis seems to reflect more broadly the judicialised history to which Rousso refers. The court, argues Osiel,

This mediates the memory of the nation, judging the conflicting views of what memories should be preserved in circumstances where,

Where they are dealing with matters of significant public concern, the courts are not unaware of the way they will be viewed. Justice Gray’s disclaimer in Irving that it was not his role ‘to form, still less to express, a judgment about what happened’ indicates that, even if he does not like it, his judgment ‘will inevitably be viewed as making history’.[136] A judicial disclaimer is of little effect because the court cannot control the way that judgment shapes memory.

Lawrence Douglas presents a much stronger thesis regarding the role of the courts when he looks at a selection of trials that he argues are ‘paradigmatic of the range of efforts to solve [through the criminal law] the problems of representation and judgment posed by the Holocaust’.[137] In express contrast to Hannah Arendt’s view that the criminal trial’s sole purpose is to dispense justice to the accused, Douglas argues that such prosecutions have dual purposes of ‘principled justice’ and ‘historical tutelage’.[138] It is through the ‘didactic legality’ of the latter that criminal law can shape history and memory, and serve as ‘as a salve to traumatic history’.[139] Douglas provides compelling demonstrations of the didactic consciousness in the proceedings at Nuremberg, in the trial of Adolf Eichmann, and in the prosecutions of Klaus Barbie and John Demjanjuk (alleged but not found to be ‘Ivan the Terrible’ of Treblinka) as perpetrators and of Zundel as a denier.

One difficulty that is not necessarily raised by Douglas’ critique, but which would be at issue in a defamation action, is whether the balance between didactics and justice should be the same in civil and criminal trials. The parties to a defamation action find themselves, ostensibly, in court over a dispute about an individual’s reputation. Tatz, however, seems to propose that the action be commenced for what appears to be neither a dual nor even an ancillary didactic purpose, but for an entirely didactic purpose. I am not suggesting that a defamation action aimed at salvaging a reputation would be illegitimate or inappropriate. Nor am I suggesting that such an action could not be done in good faith. But there is perhaps good reason to pause before using the trial process for solely didactic ends.[140]

Douglas openly acknowledges that justice and pedagogy are not always comfortably balanced and that there is a strongly critical argument that suggests the responsibility to the accused must be paramount and should not be distorted by other aims. But, regardless of those matters, Douglas’ illustration of the pedagogical element remains of special interest.[141] In particular, one does not have to accept the thesis that the didactic element is deliberate or conscious in order to accept the less strident position that trial and judgment serve a didactic function for history and memory where any legal adjudication of history is concerned.

The French prosecutions — which as a legal function were an exercise in meting out justice to the individuals on trial — saw a mass of debate about the role and significance of the trials and the verdicts. There were differences of opinion over whether these were essential or appropriate ways of judging not just individuals but France as a nation (both past and present), the Vichy regime, and the genocidal complicity and activity of both nation and state.[142] Tzvetan Todorov questioned the pedagogic value of a trial and wondered instead whether the prosecution and conviction allowed the nation to falsely reconstitute itself, allowing the contemporaneous mistreatment of immigrants to continue while forming a ‘retrospective heroism [that] simply exempted us from combating [present injustices]’.[143] Rousso saw its only purpose as being to ‘liberate a voice, organise it, put it into circulation, and thus to see to it that the suffering and responsibilities for this event are more widely shared within the community.’[144] Alain Finkielkraut saw in Papon’s trial an event with the power to disturb individual consciousness such that it would become ‘a little less easy for us, whatever we are — civil servants, but also photographers, technicians, researchers, executives or businessmen — to run from moral responsibility for our acts in the carrying out of our tasks’.[145] However disparate and conflicting these views are, Osiel’s general comment seems to apply equally to all: the stories of the past in the trials served to ‘aid our remembrance not only of the events themselves, but also of the moral judgments we ultimately reached about them’.[146] In Australia, this process is most clearly apparent in the different attempts by governments of the day to incorporate the High Court’s decisions on native title into the collective memory and the national narrative.

In 1997, the Liberal-National coalition government set about undertaking legislative reform with a ‘Ten Point Plan’ to limit and negate the legal rights delivered under Mabo, Labor’s Native Title Act 1993 (Cth) that had entrenched common law native title, and the extensions of the Wik decision which were said to seriously threaten the rights of farmers and, consequently, threaten the nation.[149] In a televised address to the nation, Prime Minister Howard set about presenting Australia with a vision of itself within which ‘the bush’ and its population of farmers held a defining place and where the proposed legal changes were sensible and legitimate:

Howard expressed his belief that ‘we need to move forward’ and ‘take action as a nation’ and that the government’s Ten Point Plan would deliver an outcome ‘that [would] be seen by the entire Australian community as a fair and just solution to a very, very difficult national problem.’¹⁵¹

The Australian experience here is consistent with the analyses of Osiel and others with regard to criminal trials. Although they treated the judgments very differently, both Prime Ministers sought to use the decisions to explain to the nation how it should understand itself and its future. For Keating, the past as a story of dispossession had to become a part of the nation’s very being. Recognition was the basis for moving forward. For Howard, the past as a story of dispossession could not become a part of the nation’s being: such recognition would destroy the nation and needed to be ‘put behind us’ because it would be an obstacle to moving forward.[152]

If the French experience and our own recent cases dealing with the colonial past are any guide, the courts’ encounters with history — and, very importantly, the public perception and discussion of those encounters — suggest that Nancy Wood is quite correct in her view that the courts themselves have become lieux de mémoire.[153] What, then, might be the place of judgment in defamation litigation between Australian historians?

It was suggested earlier that one of the distinguishing features of a defamation action is that, unlike native title determinations or criminal prosecutions, it does not always rely on a particular version of history to support its conclusions. On some occasions, as in Irving, there will be a finding of implausibility and particular versions of the past will be excluded. On every occasion, including Irving, but especially when there is a finding of plausibility, the decision acknowledges a range of different plausible versions of the past. However, not all the possibilities are invested with equal status, for there is a connection between law and memory within which defamation law tends to validate some versions in favour of others. That connection relies not upon judging the plausibility of history, but upon judging the reputation of the historian. In the discussion of national pasts, Nora highlights ‘the practice of history’ as having become ‘the repository of the secrets of the present’ and argues that the historian plays a central role in how society understands itself historically. The historian, he argues, takes ‘something lifeless and meaningless and invest[s] it with life and meaning …. [H]e has become, in his very being, a lieu de memoire.’[154] And so it is by judging the historian that a court impacts upon this very intimate link between on the one hand, the historian’s writing of history and, on the other, the collective memory, or what we think of as our history. In this way, the casting of judgment upon a historian’s reputation glides almost effortlessly into the depiction of a judgment cast upon history.

Judgment in any circumstances is vulnerable to manipulation and misinterpretation in public discussion. Here, the inherent complexity of the action is belied (or perhaps compounded) by the apparent simplicity of the finding in favour of the plaintiff or the defendant. As Osiel has noted, the fact of judgment is often ‘mistakenly read as an authoritative endorsement’ of the stories the successful parties have offered to the court.[155] These problems are magnified in debates about Aboriginal history which occur in a political and communicative context that is charged with race, especially as they move beyond the courts or the academy and into public life. The ‘judicialisation of the past’ in such circumstances renders collective memory — and the nation itself — dangerously vulnerable to the distortion of both law and history.

6. Conclusion: History, Memory and Judgment

Whatever the circumstance, the strands of history, memory and judgment are intertwined when law engages with the past. Different types of legal actions exhibit varied and interdependent relationships between the three. Defamation law should not be used as an avenue to resolve disputes between historians; there is much to be wary of in every respect.

There is no doubt that David Irving suffered a resounding loss in his libel action. The findings demolished the validity of his arguments and delivered a very public blow to his credibility. Tatz described Irving’s loss as,

Perhaps this puts it too strongly, especially as Holocaust denial and bigotry will not of themselves be defeated by rational argument, but undoubtedly the loss is significant.[157] However, the outcome of the Irving case is not an appropriate basis for advocating the use of defamation law to resolve historical disputes.

The ability of defamation law to accommodate the interpretive dimensions of historical scholarship means it provides a better legal framework for encounters between law and history than do most other actions because history can enter the court as history. But what makes a defamation judgment so troubling is this very same accommodation that necessarily allows for a plurality of legally valid historical possibilities. The Irving trial presents a façade of simplicity and certainty because there were such remarkably strong empirical grounds for finding Irving’s version of history to be implausible, and because the court’s finding was one of implausibility (rather than plausibility). Where the History Wars are concerned, there is far less documentary material that would empirically support a degree of factual certainty about the occurrence of particular events given the period under dispute is the early 19^thcentury. This makes a finding of implausibility on either side far less likely and, consequently, the distortive impact of a judgment far more likely.

Despite these limits, defamation law might still inform the analysis of historical scholarship where allegations of denialism are in issue. The defence of truth demands an examination of historians’ motives to the extent that it does not accommodate the inappropriate, open-ended relativism that underpinned the majority reasoning in Zundel. At the least, it illustrates how one might prevent the misrepresentation and abuse of epistemological theory to defend deliberate fabrication whilst still acknowledging the inherently interpretive nature of historical scholarship. It demonstrates, if only to a limited extent, the possibility of the courts’ judging historians without directly authorising one particular historical narrative.

The rejection of Tatz’s suggestion is not an endorsement of Reynolds’ position that courts are ‘not the place where ideas should be fought out’.[158] It is not just in a defamation action that ideas would come before the courts. Rather, ideas are inevitably fought out in any legal encounter with the past. As both lawyers and historians have noted, it is vital for both disciplines to understand how this occurs. Of equal importance, the courts have indeed become lieux de memoire; judgments of either history or historians are in every instance enmeshed with the transmission of and struggle for the nation’s collective memory and the consequent legitimation of legal, political, economic and social relations.

The discussion in this article has been primarily directed at understanding the relationships between history, memory and law. But understanding is not enough. The prospect of litigation obliges us also to tread with care because those who would have us remember them are not represented in the proceedings. In native title actions the dead must, amongst the myriad of procedural and conceptual limitations, rely on indigenous descendants to put before the court a case that does justice not only to the resolution of the present dispute but also to the recording of the past. In trials for crimes against humanity, the dead must rely on the state as a benevolent participant, determining who, if anybody, might be held responsible and for what.[159] And care is worth taking, for the legal process can be valuable for the production of and reflection on history and memory. Douglas uses the Eichmann prosecution to point out eloquently the role of the trial as a process to do justice and as a forum in which to bear witness and ‘give tortured memory the force of legal evidence’:

A defamation action between the Australian historians is profoundly worrying with regard to its participants and their motivation for litigation. Argument is made and judgment is cast on a past that deeply concerns people — both living and dead

— who are the object of inquiry but have no opportunity to present in the proceedings their version of how things were. There are no marginalised living, there is no prosecuting state, and there are no damaged survivors to lay claim to how the past should be remembered.

The issues at hand are concerns not only of the present, but also of the future. There will be other occasions in this country where law and history will meet in crisis. Those occasions will not be limited to the sins of 19^th — or 20^th — century colonialism. When acts or omissions of injustice that go to the nation’s sense of itself acquire the requisite moral magnitude that prompts their re-examination, we will have to find answers to questions we will ask about ourselves. Those questions might be, in Osiel’s words, ‘what sort of place is this that such things could happen?’[161] Or, to paraphrase the question Habermas asked in the German historians’ debate, can one continue the tradition of national culture without taking over the historical liability for the way of life in which terrible wrongs were possible?[162] When these times come, it is to be hoped that the discipline and the profession of law will adequately comprehend and take their places in providing some answers.

If history, memory and judgment are as interconnected as I have suggested, then Graeme Davison’s observations about his discipline might with ease (and some unease) prompt reflections on law’s problems with the past:

As law mediates and regulates claims to justice in the present, its grasp of how to deal with the past must be a central concern. There is too much at stake for things to be otherwise.

* Division of Law, Macquarie University <lawrence.mcnamara@mq.edu.au>. This article has benefited greatly from the comments and criticisms of several people who kindly read drafts: David Fraser, Ann Genovese, Laksiri Jayasuriya, Andrew Lynch, Roger Magnusson, Alex Reilly and the anonymous referees for this journal. Similarly, participants at the Killing the Other conference (Université Paris 7 & ENS de Cachan, January 2004), the Generations conference of the Australia & New Zealand Legal History Association (Murdoch University, July 2004) and Faculty workshops at the law schools of the University of Maryland, University of Illinois & the City University of New York took the time to consider and comment on various of the arguments. I am grateful to Ian Crawford for research assistance and the Centre for Media & Communications Law at the University of Melbourne where I undertook some of the work for this piece. Finally, my thanks to the students who took my Language, Violence and Justice: The Legal Regulation of Hatred unit at Macquarie during 2003 and enhanced the exploration of these ideas in their early stages. The errors and flaws are, of course, my sole responsibility.

[1] Peter Burke, ‘History as Social Memory’ in Thomas Butler (ed), Memory: History, Culture and the Mind (1989) 97 at 98.

[2] See generally, Stuart Macintyre & Anna Clark, The History Wars (2003). Dirk Moses uses the term ‘culture wars’: ‘Revisionism and Denial’ in Robert Manne (ed), Whitewash: On Keith Windschuttle’s Fabrication of Aboriginal History (2003) at 337.

[3] Colin Tatz, With Intent to Destroy: Reflecting on Genocide (2003) at 136; see also Tatz’s letter to the editor, Sydney Morning Herald (27 November 2002) at page 14. A relentless advocate for the recognition and redress of historical injustice, Tatz appears to take the position that a court would find the latest historical attacks to be without foundation.

[4] Quoted in Bernard Lane, ‘History Breakers’ The Weekend Australian (28 December 2002) at 11.

[5] Irving v Penguin Books Ltd & Deborah Lipstadt [2000] EWHC QB 115 (hereinafter Irving or Irving v Lipstadt). For a comprehensive and very readable discussion of the case, see DD Guttenplan, The Holocaust on Trial: History, Justice and the David Irving Libel Case (2001). Lipstadt recounts and reflects on her experiences in Deborah Lipstadt, ‘Perspectives from a British Courtroom: My Struggle with Deception, Lies and David Irving’ in John K Roth & Elisabeth Maxwell (eds), Remembering for the Future: The Holocaust in an Age of Genocide, Vol 1 (2001) 769; Deborah Lipstadt, ‘Irving v Penguin UK and Deborah Lipstadt: Building a Defense Strategy’ (2002) 27 Nova Law Review 243. Two of the five expert witnesses for the defence have written books in English, though these predominantly go to their refutation of Irving’s position: Richard Evans, Telling Lies About Hitler: The Holocaust, History and the David Irving Trial (2002); Robert Jan van Pelt, The Case for Auschwitz: Evidence from the Irving Trial (2002). The decision was upheld on appeal: Irving v Penguin Books Ltd & Deborah Lipstadt [2001] EWCA Civ 1197.

[7] See generally, Mark Osiel, Mass Atrocity, Collective Memory, and the Law (1997); this is a revised version of Osiel’s, ‘Ever Again: Legal Remembrance of Administrative Massacre’ (1995) 144 University of Pennsylvania Law Review 463.

[8] For example, Delgamuukw v The Queen [1997] 3 SCR 1010; Mille Lacs Band of Chippewa Indians v Minnesota 861 F Supp 784 (1994). Jonathon D Martin provides a short review of the range of matters where historians have appeared as expert witnesses in the United States: ‘Historians at the Gate: Accommodating Expert Historical Testimony in Federal Courts’ (2003) 78 New York University Law Review 1518 at 1519–20.

[9] Nulyarimma v Thompson [1999] FCA 1192; (1999) 96 FCR 153; Re Thompson; Ex parte Nulyarimma [1998] ACTSC 136; (1998) 148 FLR 285. R v Polyukovich (SA Supreme Court, Cox J, 18 May 1993) is chronicled by David Bevan, A Case to Answer: The Story of Australia’s First European War Crimes Prosecution (1994). The High Court’s decision in Polyukovich v The Commonwealth [1991] HCA 32; (1991) 172 CLR 501 dismissed a challenge to the validity of the war crimes legislation.

[10] This article will not address the Cubillo cases or the Stolen Generations more generally, primarily because they are concerned with a later period than the 19^th century colonialism that is the subject of the History Wars. I would, however, think that the arguments advanced in this article would be consistent with the inquiry, litigation and debates related to the Stolen Generations. If pursuing that thesis, useful starting points would include: Human Rights and Equal Opportunity Commission, Bringing Them Home : Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families (1997); the decisions in the action by Lorna Cubillo and Peter Gunner: Cubillo v Commonwealth [1999] FCA 518; (1999) 89 FCR 528; Cubillo v Commonwealth (No 2) [2000] FCA 1084; (2000) 103 FCR 1; Cubillo v Commonwealth [2001] FCA 1213; (2001) 112 FCR 455; Peter Read, ‘The Stolen Generations, the Historian and the Court Room’ (2002) 26 Aboriginal History 51; Anna Haebich, ‘ “Between Knowing and Not Knowing”: Public Knowledge of the Stolen Generations’ (2001) 25 Aboriginal History 70; and Roseanne Kennedy, ‘Stolen Generations Testimony: Trauma, Historiography and the Question of “Truth”’ (2001) 25 Aboriginal History 116.

[12] Christine Choo, ‘Historians and Native Title: The Question of Evidence’ in Diane Kirkby & Catharine Coleborne (eds), Law, History, Colonialism: The Reach of Empire (2001) 261 at 272. For a critique of the use of evidence in particular cases see, for example, Alexander Reilly, ‘The Ghost of Truganini: Use of Historical Evidence as Proof of Native Title’ (2000) 28 Federal Law Review 453; Simon Young, ‘The Trouble with “Tradition”: Native Title and the Yorta Yorta Decision’ [2001] UWALawRw 2; (2001) 30 University of Western Australia Law Review 28; Roderic Pitty, ‘A Poverty of Evidence: Abusing Law and History in Yorta Yorta v Victoria’ (1999) 5 Australian Journal of Legal History 41; Jonathon Fulcher, ‘Sui Generis History? The Use of History in Wik’ in Graham Hiley (ed), The Wik Case: Issues and Implications (1997) 51.

[13] Reilly, above n12 at 474. The interpretive issue has been the focus of much attention and criticisms have also been made regarding the courts’ use of history in Canadian litigation: Patricia Wallace, ‘Grave-Digging: The Misuse of History in Aboriginal Rights Litigation’ (1999) 30 University of Miami Inter-American Law Review 489; John G Reid, William C Wicken, Stephen E Patterson & DG Bell ‘History, Native Issues and the Courts: A Forum’ (1998) 28 Acadiensis 3; GM Dickinson & RD Gidney, ‘History and Advocacy: Some Reflections on the Historian’s Role in Litigation’ (1987) 68 Canadian Historical Review 576; Donald Bourgeois, ‘The Role of the Historian in the Litigation Process’ (1986) 67 Canadian Historical Review 202; Robin Fisher, ‘Judging History: Reflections on the reasons for judgment in Delgamuukw v BC’ (1992) 95 BC Studies 43. Heather Goodall provides the inverse to the criticism of lawyers’ poor grasp of history, arguing that historians need to better understand the nature of legal proceedings and the limitations they place on historians’ representations of the past: ‘“The Whole Truth and Nothing But …”: Some Intersections of Western Laws, Aboriginal History and Community Memory’ in Bain Attwood & John Arnold (eds), Power, Knowledge and Aborigines (1992) 104. Richard Evans (in the context of war crimes trials) also makes a case for historians to better understand the law: ‘History, Memory, and the Law: The Historian as Expert Witness’ (2002) 41 History and Theory 326. On the role of historians in native title cases, see generally Ann Curthoys, ‘The Proof of Continuity of Native Title: An Historian’s Perspective’ in Anne Pyle (ed), Land, Rights, Laws: Issues of Native Title, Issues Paper No 18 (1997); David Ritter, ‘Whither the Historians? The Case of Historians in the Native Title Process’ (1998/1999) 4(17) Indigenous Law Bulletin 4. On interpretation as an essential aspect of history, see, for example, Edward H Carr, What is History? (1961) especially chapter one.

[14] For a brief review of the issues in the context of law and history relationships, see Daniel Farber, ‘Advocacy and Expertise: The Role of the Expert Witness – Adjudication of Things Past: Reflections on History as Evidence’ (1998) 49 Hastings Law Journal 1009 at 1019–1027. The question of whether postmodernism is as strongly relativist as its critics would suggest is dealt with below: see Part 4(B)(i).

[16] WEH Stanner, After the Dreaming (1969) at 22–24; Richard Broome, ‘Historians, Aborigines and Australia: Writing the National Past’ in Bain Attwood (ed), In the Age of Mabo: History, Aborigines and Australia (1996) 54.

[17] See especially Henry Reynolds, The Other Side of the Frontier (first published 1981; republished 1982); Fate of a Free People (1995); Lyndall Ryan, The Aboriginal Tasmanians (first published 1981; 2^nd ed, 1996). I will use Reynolds and Ryan throughout as representative of a number of historians.

[18] Reynolds, Other Side of the Frontier, above n17 at 122: ‘For the continent as a whole it is reasonable to suppose that at least 20 000 Aborigines were killed as a direct result of conflict with the settlers.’ See also Richard Broome, Aboriginal Australians: Black Response to White Dominance 1788–1980 (1982) at 51 where he makes the same estimate relying in part upon some of Reynolds’ earlier work.

[20] Commonwealth, House of Representatives, Parliamentary Debates (Hansard), 30 October 1996 at 6158.

[22] Ibid. Labor’s Gareth Evans, MHR, responded critically to the ‘Black Armband’ argument: at 6166. Howard drew the ‘balance sheet’ idea from Geoffrey Blainey: Macintyre & Clark, above n2 at 128–132. See also Howard’s comments on the ABC’s Four Corners program in 1996 that ‘he would “like to see [Australians] comfortable and relaxed about their history”, and insisted that it was “very important” that Australians did not “spend [their] lives apologising for the past”’: quoted in Bain Attwood & SG Foster, ‘Introduction’ in Bain Attwood & SG Foster (eds), Frontier Conflict: The Australian Experience (2003) 1 at 13.

[23] Keith Windschuttle, The Fabrication of Aboriginal History, Volume 1 (2002) at 2. This work expanded substantially the arguments he had run in separate pieces in the conservative journal Quadrant: Keith Windschuttle, ‘The Myths of Frontier Massacres in Australian History: Part 1

– The Invention of Massacre Stories’ (2000) 44(10) Quadrant 8; ‘The Myths of Frontier Massacres in Australian History: Part 2 – The Fabrication of the Aboriginal Death Toll’ (2000) 44(10) Quadrant 17; ‘The Myths of Frontier Massacres in Australian History: Part 3 – Massacre Stories and the Policy of Separatism’ (2000) 44(10) Quadrant 6. The tone of the criticism was described by Attwood as ‘irrationally bellicose’, while Bolton said that Windschuttle ‘writes with the belligerence of one who believes himself in combat with a monstrous orthodoxy that is stifling debate’: Bain Attwood, ‘Behind the Historian’s Sigh’ The Australian Financial Review (22 February 2002) at page 6 of Weekend Review; Geoffrey Bolton, ‘Black Lives Lost … And Found’ Sydney Morning Herald (14 December 2002) at page 10 of Spectrum. Windschuttle is not alone in criticising popular historians; Reynolds, Fate of a Free People, above n17 at 77, is also critical of the misuse of academic historians’ work.

[30] Id at 397; see 387–397 for his table of the analysis. In response to some criticisms of his work he has revised the table slightly. At 1 March 2003 he placed the figure at 120: <http:// www.sydneyline.com/Table%20Ten%20revised.htm> (13 April 2004).

[37] Reynolds, Other Side of the Frontier, above n17 at 1; see also Windschuttle, Fabrication, above n23 at 5–7.

[43] For a discussion of why the book received the attention it did, see Manne’s introduction to Whitewash, above n2 at 10–11, where he argues that The Australian newspaper was especially responsible (or culpable).

[46] See for example Henry Reynolds, ‘Terra Nullius Reborn’ in Manne (ed), Whitewash, above n2 at 109, 113, 122, and arguably 127 and 133; Lyndall Ryan, ‘Who is the Fabricator?’ in Manne (ed), Whitewash, above n2 at 230, 233.

[47] On Windschuttle’s historian status, see Macintyre & Clark, above n2 at 15–16. Macintrye rejects the status criticism as an unpersuasive and inappropriate way to respond to Windschuttle’s critique: ‘On “Fabricating” History: History, Politics and the Philosophy of History’, Paper presented to Blackheath Philosophy Forum: History, Politics and the Philosophy of History (1 March 2003) <http://evatt.labor.net/au/publications/papers/92.html> (20 June 2004). On Windschuttle being described as a journalist, see generally Attwood & Foster, above n22 at 18, or for examples, see Bain Attwood, ‘Historiography on the Australian Frontier’ in Attwood & Foster (eds), Frontier Conflict, above n22, 169 at 175; Dirk Moses, ‘Rendering the Past Less Unpalatable’, The Australian (13 January 2003) at page 9. Lyndall Ryan describes him as a journalist in ‘Waterloo Creek, Northern New South Wales, 1838’ in Attwood & Foster (eds), Frontier Conflict, above n22, 33 at 34, but as a historian in her later piece in Whitewash, above n46 at 234. Windschuttle’s supporters among the opinion columnists tend (unsurprisingly) to describe him as a historian — for instance: Paul Sheehan, ‘Our History, Not Rewritten but Put Right’, Sydney Morning Herald (25 November 2002) at page 11; Miranda Devine, ‘The Book Launch, Bluster and Backdowns’, Sydney Morning Herald (19 December 2002) at page 17; and, not quite as supportive, Gerard Henderson, ‘Where Are the True Blue Conservatives in this Country?’, Sydney Morning Herald (24 December 2002) at page 9. Of the historians, Geoffrey Bolton, ‘Black Lives Lost … and Found’, Sydney Morning Herald (14 December 2002) at page 10 of Spectrum, refers to him by implication as a historian, as does Shayne Breen, somewhat deprecatingly, in ‘Reinventing Social Evolution’ in Manne (ed), Whitewash, above n2 at 155: ‘as every historian except Windschuttle knows …’. Windschuttle has responded to these criticisms, stating that he was a postgraduate history student at Sydney University for six years: ‘Letter to the Editor’, The Australian (15 January 2003) at page 10. The issue of status is paralleled in Irving v Lipstadt where Richard Evans’ argued in his expert witness report that Irving did not deserve to be called a historian: Irving v Lipstadt at [5.8].

[48] On Reynolds and Ryan as revisionists, see Attwood & Foster, ‘Introduction’ to Frontier Conflict, above n22 at 4; Bain Attwood, ‘Historiography on the Australian Frontier’, above n47 at 172. On Windschuttle as a revisionist, see Alan Atkinson, ‘Historians and Moral Disgust’ in Attwood & Foster (eds), Frontier Conflict, above n22, 113 at 113; Robert Manne, ‘Blind to Truth, and Blind to History’ Sydney Morning Herald (16 December 2002) at page 13; Mark Finnane, ‘Counting the Cost of the “Nun’s Picnic”’ in Manne (ed), Whitewash, above n2, 299 at 308; Martin Krygier & Robert Van Krieken, ‘The Character of the Nation’ in Manne (ed), Whitewash, above n2 at 83.

[49] Moses, above n2 at 342. The terms ‘denial’ and ‘denialism’ are used in this paper, though the terms ‘negation’ and ‘negationism’ are also used in the literature to consider these phenomena and strategies: see, for example, Alain Finkielkraut, The Future of a Negation: Reflections on the Question of Genocide (1998) [Trans: Mary Byrd Kelley; Introduction by Richard Golsan; First published as: L’avenir d’une négation: Réflexion sur la question du génocide (1982)]; Lawrence Douglas, The Memory of Judgment: Making Law and History in the Trials of the Holocaust (2001) uses both denial and negation.

[51] Deborah Lipstadt, Denying the Holocaust: The Growing Assault on Truth and Memory (1993) at 2: ‘They aim to confuse the matter by making it appear as if they are engaged in a genuine scholarly effort when, of course, they are not.’ Pierre Vidal-Naquet, Assassins of Memory: Essays on the Denial of the Holocaust (1992) constantly characterises denial with the terms mendacity, lies and dishonesty. David Fraser argues that deniers have a conscious strategy and a clear awareness of what they are doing: ‘Memory, Murder and Justice: Holocaust Denial and the “Scholarship” of Hate’ in Chris Cunneen, David Fraser & Stephen Tomsen, Faces of Hate: Hate Crime in Australia (1997) 162. Lawrence Douglas, above n49, refers to denial as, for example, ‘hateful lies’ (at 3) and ‘hateful distortion’ (at 256). See further, below, at Part 4(B)(ii).

[52] Moses, above n2 at 363. See also Tatz, With Intent to Destroy, above n3 at 122–141. For Windschuttle’s comment on Whitewash, see Keith Windschuttle, ‘Whitewash confirms the Fabrication of Aboriginal History’ (2003) 47(10) Quadrant 8.

[53] This point is widely acknowledged: see, for example, Henry Reynolds, ‘Historians at War (Book Review)’, The Weekend Australian, 14 December 2002; James Boyce, ‘Fantasy Island’ in Manne (ed), Whitewash, above n2 at 64. This aspect of the dispute needs more and careful attention. Even if Windschuttle’s version of history was agreed to be the correct one, this does not necessarily mean that there are no indigenous grounds for grievance: by some means or other, dispossession occurred. Indigenous people had sovereignty over and exclusive possession and use of the land. And then they did not. Were Windschuttle’s version of events to prevail, it should not carry the consequence that there is no claim to justice in the present. For an eloquent articulation of this kind of position, see the comments made by Tim Rowse at the National Museum forum, quoted in Attwood & Foster, ‘Introduction’, above n22 at 22–23. More generally, the relationship between past injustice and present claims for reparations is explored in John Torpey (ed), Politics and the Past: On Repairing Historical Injustices (2003).

[54] Bain Attwood (ed), In the Age of Mabo, above n16, explores the themes of history and nation as they relate to the place of indigenous peoples in Australia.

[58] Ann Curthoys, ‘Constructing National Histories’ in Attwood & Foster (eds), Frontier Conflict, above n22 at 185–186.

care that discussions of Aboriginal history under settler-colonisation have evoked the attention, not to mention the passions, sometimes hatreds, often pain, which they have in this country.[59]

[60] Maurice Halbwachs, The Collective Memory (1980) [Trans: Francis J Ditter Jr and Vida Yazdi Ditter; first published as La Mémoire Collective (1950)] at 58, 77.

[61] Osiel, above n7 at 76. Osiel’s identification of the moral element in the process seems quite right; even though Halbwachs, above n60 at 77, describes the events as ‘temporal landmarks’, it seems clear that he is also concerned with a moral sense of understanding. Similarly, Henry Rousso, The Haunting Past: History, Memory and Justice in Contemporary France (2001) [Trans: Ralph Schoolcraft; first published as La Hantise du Passé (1998)] at 3 highlights the ‘system of moral references’ that characterises memory. However, in saying that events have a moral magnitude and thus fire the nation’s concern, Osiel’s reading of Halbwachs should not be seen as suggesting some kind of causal precision. It may be better to see the relationship between memory and morality as a more interdependent one, which would be consistent with Osiel’s own discussion of the complexities of the concept (see his n 28 at 18–19). That is, it may be that events occur but are not seen in a moral light (or a particular moral light) until much later, once the nation has a dominant moral framework to apply to them that supplants the views that prevailed at the time of the events. For example, indigenous dispossession was not necessarily widely seen in the Australian colonies at the time as a moral problem. There was most definitely an identifiable moral concern, evident for example from the 1837 Select Committee Report to the House of Commons that criticised the treatment of Aborigines, quoted in Mabo at 40 (Brennan J), or Blackstone’s qualms about the acquisition of occupied lands, quoted in Mabo at 33 (Brennan J): ‘But how far the seising on countries already peopled, and driving out or massacring the innocent and defenceless natives, merely because they differed from their invaders in language, in religion, in customs, in government, or in colour; how far such a conduct was consonant to nature, to reason, or to Christianity, deserved well to be considered by those, who have rendered their names immortal by thus civilizing mankind.’ But it was perhaps not until at least post-World War II that an ethic of racial equality became ascendant with judicial and legislative recognition of civil rights in the United States. This occurred later still in Australia with the amendment to the Constitution’s s51(xxvi) race power in 1967 and the enactment of the Racial Discrimination Act (Cth) in 1975. Stanner, above n16 at 17, argued that until at least in 1945 one could live in Australia with a 19^th century sense of racial structure, see it as natural and unalterable, and be quite comfortable as it went largely unchallenged. Hence, even though events may have been of moral note or moral debate at the time, the colonialist project is only recently one that could be characterised as having a socially dominant apprehension ‘of moral magnitude’. If one is looking for an event that brought this about, the decision in Mabo perhaps serves as the relevant moral and temporal landmark: see, for example, Bain Attwood, ‘Mabo, Australia and the End of History’ in Bain Attwood (ed), In the Age of Mabo, above n16 at 100, where he discusses ‘the sense of national crisis’ brought on by the decision.

[62] Rousso, The Haunting Past, above n61 at 6; Peter Novick, The Holocaust in American Life (1999) at 3. In Germany, the history and memory of the Holocaust were confronted in an extended academic debate conducted in the media that was referred to as the Historikerstreit: see generally Dominick La Capra, ‘Revisiting the Historians’ Debate’ (1997) 9 History & Memory 80.

[63] Peter Burke, above n1 at 100; see also Paula Hamilton, ‘The Knife Edge: Debates about Memory and History’ in Kate Darian-Smith & Paula Hamilton (eds), Memory and History in Twentieth-Century Australia (1994) 9 at 17. These are similar to the sorts of processes through which Robert Bellah et al suggest that a community is constituted; as a ‘community of memory’, the group ‘is involved in retelling its story, its constitutive narrative’ and its ‘practices of commitment’ sustain the community by ‘defin[ing] the patterns of loyalty and obligation that keep the community alive’: Robert Bellah, Richard Madsen, William M Sullivan, Ann Swidler & Steven M Tipton, Habits of the Heart: Individualism and Commitment in American Life (Revd Ed 1996) at 153–154. For a critical discussion of Bellah’s notion of communities of memory and the nation, see Daniel Bell, Communitarianism and its Critics (1993) at 129–155. For a critique of the place of ‘objective history’ within the framework of Bellah’s ‘community of memory’, see Bruce Frohnen, ‘Does Robert Bellah Care About History?’ in Peter Augustine Lawler & Dale McConkey (eds), Community and Political Thought Today (1998) 71.

[64] Pierre Nora, Realms of Memory: Rethinking the French Past, Vols 1–3 (1996) [Trans: Arthur Goldhammer; First published as Les Lieux de Mémoire (1992)] at xvi.

[65] Hamilton, ‘The Knife Edge’, above n63 at 23; Halbwachs, above n60 at 51, 76–77. As Halbwachs explains it (at 86), memory ‘provides the group a self-portrait that unfolds through time … and allows the group to recognise itself. For the landmark study of memory in constituting the nation, see Nora, above n64. Ann Curthoys has observed that ‘the nation’ has tended to be the predominant conceptual tool for analysis in the last two decades: ‘Cultural History and the Nation’ in Hsu-Ming Teo & Richard White (eds), Cultural History in Australia (2003) 22. Perhaps the absence of memory as a focus in Australian scholarship work is due to the long-pervasive presence of terra nullius in the legal and historical consciousness and the relatively recent portrayal of the past as being one that might trouble the national memory. Memory has, however, recently begun to play a more substantial role in the literature in so far as events within living memory are concerned: Paula Hamilton, ‘Memory Studies and Cultural History’ in Hsu-Ming Teo & Richard White (eds), Cultural History in Australia (2003) 81.

[69] Ibid. For a discussion of how history writing might inform memory and the ways the past is viewed, see Alan Cairns, ‘Coming to Terms with the Past’ in Torpey (ed), above n53 at 63.

[70] Gardiner v John Fairfax & Sons Pty Ltd (1942) SR(NSW) 171 at 172; Boyd v Mirror Newspapers [1980] 2 NSWLR 449 at 452; Sim v Stretch [1936] 2 All ER 1237 at 1240. The ‘lowering the estimation’ test is the principal criteria for defamation. The two alternative tests for what is defamatory – ‘hatred, ridicule and contempt’ and ‘shun and avoid’ – are not relevant here.

[71] There may be a lesser position in some of Windschuttle’s writing that is more appropriately characterised as comment on accurately stated facts, and comment is a defence to a defamation action. For example, it might be argued that, having identified apparently inaccurate footnotes by Reynolds and Ryan, it is comment to say that, ‘Most of the story is myth piled upon myth, including some of the most hair-raising breaches of historical practice ever recorded’: Keith Windschuttle, ‘History as a Travesty of Truth’ The Australian (9 December 2002). However, it is plain enough from the book that the accusations of intentional fabrication convey a statement about what Reynolds and Ryan have done, rather than simply being comment upon their work.

Once a plaintiff has established their case — that is, that they have been defamed — then the person

[72] This position may be more difficult to establish, especially as the responsive nature of their comments may afford them some defence. However, if their statements are characterised as going beyond response then they would lose any such protection. See Milmo & Rogers, Gatley on Libel & Slander (9^th ed, 1998) at [14.49], [16.10]; Des Butler & Sharon Rodrick, Australian Media Law (1999) at [2.565].

[73] It might also be possible to argue that qualified privilege would offer a defence so that the publisher would not be liable even though what they had written was untrue. This would require a finding that the nation at large has a legally recognisable interest in knowing about its history and about those who write it. That would seem difficult to establish in the traditional common law form because the concept of interest is unsuited to mass communication and, moreover, the reciprocal duty of the publisher is not clearly apparent: Adam v Ward [1917] AC 309. The expanded qualified privilege of Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 or the statutory qualified privilege under section 22 of the Defamation Act 1974 (NSW) have a more malleable notion of interest and do not require the reciprocal duty. However, it would still be a hard task to apply the defences here; they have rarely succeeded even in the circumstances of media publications for which they were designed. Finally, the defence would be defeated by malice and an evaluation of that in the History Wars may not be a simple exercise. The History Wars may provide an interesting context for the examination of the law of qualified privilege but that is not the purpose at hand and the avenue will be not be pursued here.

[74] At common law, truth alone is a defence. In some jurisdictions there is a requirement that the publication was also in the public interest (eg, Defamation Act 1974 (NSW) s15(2)(b)), or for the public benefit (eg, Defamation Act 1889 (Qld) s15). The history disputes will clearly satisfy this qualification and truth is the key issue at play.

[75] It should be noted that the action would not be able to run in the United States where the law protects to a far greater extent the discussion of public figures. For a discussion of how Irving would have been placed in the US, see Dennise Mulvihill, ‘Irving v Penguin: Historians on Trial and the Determination of Truth Under English Libel Law’ (2000) 11 Fordham Intellectual Property, Media and Entertainment Law Journal 217 at 244–253. However, the ‘objective, fairminded historian’ standard it utilises may still be of interest in the US: Wendie Ellen Schneider, ‘Past Imperfect: Irving v Penguin Books Ltd’ [2001] YaleLawJl 35; (2001) 110 Yale Law Journal 1531.

[77] In addition to these matters, there also stood separately the somewhat distinct allegation that Irving was a ‘Holocaust denier’. This was defined in a particular way in the case, primarily focusing on the content of what he said, such as denying the existence of gas chambers at Auschwitz: see Irving v Lipstadt at [8.1]–[8.5], [13.92]–[13.99]. Denialism as an approach to the past is discussed in more detail below in Part 4(B)(ii).

[80] Of some concern here is the justiciability of historical scholarship and the way that may impact on freedom of speech and academic debate. However, the use of defamation law to resolve an attack on reputation leaves the courts with no alternative but to evaluate the parameters of historical possibility (though the US position limits that justiciability: see above n75). On the different question of motivation and free speech arguments, see below nn 122–130 and accompanying text.

[T]he nature and extent of the misrepresentations of the evidence together with Irving’s explanation or excuses for them …. Irving’s conduct and attitudes outwith (sic) the immediate context of his work as a professional historian, including the evidence of his political or ideological beliefs as derived from his speeches, his diaries and his associates.⁸²

[84] This would arguably be consistent with the statement of Dixon J in the High Court that courts may use the works of ‘serious historians’: Australian Communist Party v Commonwealth [1951] HCA 5; (1951) 83 CLR 1 at 196.

[85] Lipstadt, ‘Building a Defense Strategy’, above n5 at 257, saw the judicial role and the written opinion as central to the victory in Irving.

[87] The issue arose to a minor degree in Irving v Lipstadt. In spite of some allegations not being established, the finding was still in favour of the defendant: at [13.166]–[13.167].

[88] In Irving, close to 2000 pages of expert witness reports were considered and one of those experts was prompted to express a concern that it was likely even very senior historians’ work ‘would not stand up … to this kind of examination.’ See Irving v Lipstadt at [4.17]; Professor Donald (Cameron) Watt was the expert, quoted from the transcripts by another of the experts, Richard Evans, Telling Lies About Hitler, above n5 at 252.

[89] Lawrence Douglas considers this in terms of criminal trials and quotes Kirchheimer’s view that the ‘“irreducible risk” [is] the sine qua non of the just trial’: above n49 at 5 and see also 210.

[91] Almost all perspectives on history now accept that there is an important interpretive dimension. Stephen Garton, ‘On The Defensive: Poststructuralism and Australian Cultural History’ in Teo & White (eds), above n65, 52 at 61, identifies RG Collingwood’s work of the 1940s as the turning point for the general consideration ‘of the relationship between the historian and the past as one of interpretation and imaginative reconstruction’. See generally RG Collingwood, The Idea of History (1946); Carr, above n13.

[92] Such tensions were at the heart of Windschuttle’s earlier work where he heavily criticised antifoundational positions: Keith Windschuttle, The Killing of History (1994). For less polemical critiques, see Joyce Appleby, Lynn Hunt & Margaret Jacob, Telling the Truth About History (1994) or Richard Evans, In Defence of History (1997; 2^nd ed 2000). Postmodern perspectives are advocated by Keith Jenkins, Re-thinking History (1991). The possibility of balancing the tensions is addressed in an extended analysis by Robert F Berkhofer Jr, Beyond the Great Story: History as Text and Discourse (1995). For a shorter discussion, see Brian Fay, ‘The Linguistic Turn and Beyond in Contemporary Theory of History’ in Brian Fay, Philip Pomper & Richard Vann (eds), History and Theory: Contemporary Readings (1998) 1. In the High Court of Australia there has been at least one judicial comment that demonstrates confusion regarding the place of interpretation in more traditional historiography and in the postmodern critique – Callinan J seems to simplistically conflate interpretation and postmodernism: ‘[R]esort by me to the very recent and very short history of postmodernism would, if I were uncritically to accept its tenets, lead me to hold that there is no such thing as true history: history itself is not more than a series of subjective interpretations by different historians’: Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9; (2002) 208 CLR 460 at 511.

[96] Henry Rousso, ‘Letter from Henry Rousso to the Presiding Chief Justice, Bordeaux’ in Rousso, The Haunting Past, above n61 at 85–86. He discusses his views more expansively in his interviews with journalist Philippe Petite: The Haunting Past at 56–74 especially. See also Henry Rousso, ‘Justice, History and Memory in France: Reflections on the Papon Trial’ in Torpey (ed), above n53 at 277.

[97] Nancy Wood, ‘Memory on Trial in Contemporary France: The Case of Maurice Papon’ (1999) 11 History & Memory 41 at 54, discussing and quoting Éric Conan & Henry Rousso, ‘Touvier: Le dernier procès de l’épuration?’ in Conan & Rousso, Vichy, un passé qui ne passe pas (1994), 109, 159.

[99] Ibid. These difficulties seem to underpin the frustration of an expert historian who was limited by the judge in the evidence he was allowed present to the jury in the Australian war crimes trial of Polyukovich: Bevan, above n9 at 223–226.

[100] Wood, ‘The Case of Maurice Papon’, above n97 at 54, quoting Rousso from an interview in Le Monde, 7 April 1998. Haebich, above n10, has raised this distinction with regard to the Stolen Generations.

[101] Richard Golsan, ‘Maurice Papon and Crimes Against Humanity in France’ in Richard Golsan (ed), The Papon Affair: Memory and Justice on Trial (2000) 1 at 28, explaining the position of Jean de Maillard, ‘À quoi sert le procès Papon?’ [‘What Purpose Does the Trial Serve?’] (1998) Le Debat 101.

[102] Wood, ‘The Case of Maurice Papon’, above n97 at 55 (her quotes are from Claude Lanzmann, interviewed by Le Monde, 1 April 1998).

[103] It is important to keep in mind that the discussion is concerned with a defamation action between historians about the nature of their work and their motivations. Most defamation actions against historians involve plaintiffs – typically political or military figures – who contest the allegations a historian has made in a publication: see Anton de Baets’ review of European cases in ‘Defamation Actions Against Historians’ (2002) 41 History and Theory 346. Those actions are much like any ordinary defamation action against the press where a news outlet has broadcast a defamatory allegation. The cases would exhibit the same features as native title or criminal actions as the historian would be required to prove the truth of what they have written. That would require the court to evaluate, for instance, whether or not the plaintiff had committed some crime against humanity.

[104] See Attwood & Foster, ‘Introduction’ to Frontier Conflict, above n22 at 20–22, for a brief discussion of how postmodernism has influenced Australian history debates, but they note (at 20) that the historians ‘have bypassed the concerns that have preoccupied the anxious critics of postmodernism’. In the responses to Windschuttle there have been at least two opinion pieces which have arguably tended to take a somewhat more relativist position: Katherine Biber, ‘Many Shades of Grey in White Argument on Black Deaths’ Sydney Morning Herald (23 December 2002); Lyndall Ryan, ‘No Historian Enjoys a Monopoly Over the Truth’ The Australian (17 December 2002).

[105] Manne (ed), Whitewash, above n2, see mainly the chapters in the third part of the book headed ‘In Particular’, 187–333; Windschuttle, The Killing of History, above n92 at 95 at 117–118.

[106] Keith Windschuttle, ‘Social History, Aboriginal History and the Pursuit of Truth’, Paper presented to Blackheath Philosophy Forum: History, Politics and the Philosophy of History (1 March 2003): <http://www.sydneyline.com/Blackheath%20philosophy%20forum.htm> (20 June 2004).

[107] Garton, above n91 at 57. Appleby, Hunt & Jacob, above n92 at 246–247, make the reverse of this criticism: ‘When postmodernists mock the idea that … historians write the past as it actually happened, they are knocking over the straw men of heroic science and its history clone’.

[112] Hans Kellner, ‘Language and Historical Representation’ in Keith Jenkins (ed), The Postmodern History Reader (1997) 127 at 137. For a critique of Kellner, see Beryl Lang, ‘Is it Possible to Misrepresent the Holocaust?’ in Fay, Pomper & Vann (eds), above n92 at 245.

[115] Michael Shermer & Alex Grobman, Denying History: Who Says the Holocaust Never Happened and Why Do They Say It? (2000) at 29.

[118] Fish, above n113; Richard H Weisberg responds to and critiques Fish in: ‘Fish Takes the Bait: Holocaust Denial and Post-modernist Theory’ (2000) 14 Law and Literature 131 at 134. See also Kellner and Lang, above n112. Douglas, above n49 at 208–209, discusses a different process of relativising that occurred during the prosecution of Klaus Barbie in France in 1987. There, Barbie’s lawyer ‘globalized’ Nazi crimes in his argument that they were neither unique nor extraordinary, pointing particularly to atrocities committed by the French against Algerians. Although this is not so much an example of the post-modern tendency to ethical displacement as ‘strategy [that] was designed to unmask hypocrisy’, Douglas argues that it occupies a significant bridge to the distortive relativising of history that was to be more generally relied upon by Holocaust deniers.

Where does this leave an inquiry about defamation law? In so far as it requires the court to accept a

[122] R v Zundel [1992] 2 SCR 731. Under s181 of the Canadian Criminal Code it is an offence if one ‘wilfully publishes a statement, tale or news that he knows is false and that causes or is likely to cause injury or mischief to a public interest’. Only the Supreme Court decision is discussed here. For a comprehensive analysis of the trial, see Douglas, above n49 at 212–253.

[124] Id at 769. 125 Ibid. 126 Id at 836. 127 Id at 836–838. 128 Id at 836–837. 129 Id at 757.

[130] The Australian legislation on racial vilification is different from that which was used in Zundel. The 1995 amendments to the Racial Discrimination Act 1975 (Cth) prohibit under s18C racist acts or speech that are likely to offend, insult, humiliate or intimidate a person. In establishing a defence based on public debate and the like, it is for the respondent to prove that they acted in good faith (s 18D). The truth or falsity of speech is not relevant to liability. On Holocaust denial under this Act, see Jones v Toben [2002] FCA 1150; (2002) 71 ALD 629. The respondent’s appeal was dismissed in Toben v Jones [2003] FCAFC 137; (2003) 199 ALR 1.

[132] Id at 50. See also Evans, ‘History, Memory and the Law’, above n13 at 344.

[135] Id at 41. In this context, ‘truth commissions’ are of special interest, providing a point of comparison from which to explore alternatives to trials as a legal means for engaging history and memory, especially in the context of national reconstruction, transitional justice and reconciliation following state terror. The South African experience of the post-apartheid Truth and Reconciliation Commission has generated a wealth of literature: see generally Alex Boraine, A Country Unmasked (2000); Kenneth Christie, The South African Truth Commission (2000); Wilmot James & Linda van de Vijver (eds), After the TRC: Reflections on Truth and Reconciliation in South Africa (2001); Martin Meredith, Coming to Terms: South Africa’s Search for Truth (1999); Charles Villa-Vilencio & Wilhelm Verwoerd (eds), Looking Back, Reaching Forward: Reflections on the Truth and Reconciliation Commission of South Africa (2000). Truth commissions have also been a feature of the national landscapes in Central and South America, among other places: for a broad study, see Priscilla B Hayner, Unspeakable Truths: Confronting State Terror and Atrocity (2001). For a discussion of the different ways that history and memory are understood and constructed by courts, truth commissions and historians, see Charles S Maier, ‘Overcoming the Past? Narrative and Negotiation, Remembering and Reparation: Issues at the Interface of History and the Law’ in Torpey (ed), above n53, 295.

[136] Irving v Lipstadt at [1.3]; see also above n78 and accompanying text; Osiel, above n7 at 82 (emphasis in original). Justice Gray’s sentiment had parallels in, for example, Eichmann’s trial in Israel and Osiel (at 80–81) quotes the opening parts of that judgment at some length where the court states that it does not see its purpose as being to provide ‘a comprehensive and exhaustive historical account of the events’ and not to cast judgments on ‘questions of principle which are outside the realm of law’.

[138] Id at 2. Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (1963).

[140] If undertaken for a solely didactic end, this raises questions about the suitability of law to resolve the matter at all: see generally Lon Fuller, ‘The Forms and Limits of Adjudication’ (1978) 92 Harvard Law Review 353.

[141] Douglas, above n49 at 3–4. Douglas deals with those critical elements and argues that they do not necessarily present a problem for accepting didactic legality as a part of the legal process. Indeed, he suggests that in some respects it strengthens the pedagogical power of a prosecution.

[142] The prosecutions of Barbie, Touvier, Bousquet (who was charged but murdered in 1993 shortly before his trial) and Papon raised many issues during the 15 year period over which they occurred. Each defendant played a different part in the Holocaust and each trial was set in the context of those which had preceded it. The nation was also faced with the contradiction of its own actions with regard to French atrocities against Algerians (see above n118). See generally Vidal-Naquet, above n51; Nancy Wood, ‘Crimes or Misdemeanours? Memory on Trial in Contemporary France’ (1994) 5 French Cultural Studies 1; Leila Wexler, ‘Reflections on the Trial of Vichy Collaborator Paul Touvier for Crimes Against Humanity in France’ (1995) 20 Law & Social Inquiry 191; Wood, ‘The Case of Maurice Papon’, above n97; Golsan (ed), The Papon Affair, above n101; Nancy Wood, Vectors of Memory: Legacies of Trauma in Post-war Europe (1999); Douglas, above n49, especially at 185-211.

[143] Tzvetan Todorov, ‘Letter from Paris: The Papon Trial’ in Golsan (ed), above n101, 217 at 222 [Trans: John Anzalone; first published: (1999) 121–122 Salmagundi 3].

[145] Alain Finkielkraut, ‘Papon: Too Late’ in Golsan (ed), above n101, 190 at 192 [Trans: Lucy Golsan; first published as ‘Papon, Trop Tard’ (1996) Le Monde]

[146] Osiel, above n7 at 73. There are also clear parallels between the matters discussed here and the Israeli courts’ consideration of the relationships between law, history and moral judgment when examining the roles of Jews who were accused of complicity in the Holocaust: see generally Asher Maoz, ‘Historical Adjudication: Courts of Law, Commissions of Inquiry, and “Historical Truth”’ (2000) 18 Law & History Review 559, especially at 600–606; Douglas, above n49 at 154–156.

[147] The perception of the decision as having overturned terra nullius is itself an example of how a complex judgment was reduced to a simplistic narrative. David Ritter provides a useful discussion of how the court dealt with the doctrine: ‘The “Rejection of Terra Nullius” in Mabo: A Critical Analysis’ [1996] SydLawRw 1; (1996) 18 Sydney Law Review 5. For a critique of the High Court’s legal steps to incorporate the historical re-reading in Mabo and Wik see Lee Godden, ‘Wik: Legal Memory and History’ [1997] GriffLawRw 5; (1997) 6 Griffith Law Review 122.

[148] Paul Keating, ‘Australian Launch of the International Year of the World’s Indigenous People’ (often referred to as his ‘Redfern Park Speech’), 10 December 1992, reproduced as an appendix to Native Title and Aboriginal and Torres Strait Islander Land Fund Senate Committee, Sixteenth Report: Consistency of the Native Title Amendment Act 1998 with Australia's International Obligations under the Convention on the Elimination of all Forms of Racial Discrimination (CERD), 28 June 2000, 270 at 270–274. [Original was in speech format of one sentence per paragraph; extracts set in paragraphs here by the author.] It is notable that Keating’s speechwriter, Don Watson, was a historian; his reflections are recorded in Don Watson, Recollections of a Bleeding Heart: A Portrait of Paul Keating PM (2002).

[149] Wik, above n11. The threat to farmers was portrayed in spite of the High Court’s express statement (at 189–190) that where there was any inconsistency between the rights of pastoralists and the rights of native title holders, the rights of pastoralists would prevail. Howard said the operation of the Act was characterised by ‘ridiculous’ and ‘bogus claims’, and that the right to negotiate over land use was a ‘stupid property right’ that with the proposed reforms would be ‘completely abolished and removed for all time in relation to the activities of pastoralists’. John Howard, ‘Address to Participants at the Longreach Community Meeting to Discuss the Wik Ten Point Plan, Longreach, Queensland’ 17 May 1997, reproduced as an appendix to Native Title and Aboriginal and Torres Strait Islander Land Fund Senate Committee, Sixteenth Report: Consistency of the Native Title Amendment Act 1998 with Australia's International Obligations under the Convention on the Elimination of all Forms of Racial Discrimination (CERD), 28 June 2000, 276 at 276–279 (hereinafter ‘Longreach Speech’).

[150] John Howard, ‘Wik Statement – Address to the Nation, ABC Television’, 30 November 1997, <www.pm.gov.au/news/speeches/1997/wikadd.htm> (1 February 2004) (hereinafter ‘Wik Statement’). For a critical review of Howard’s position on the nation, race and history prior to his becoming Prime Minister, see Andrew Markus, Race: John Howard and the Remaking of Australia (2001) at 85–98.

[152] On the phrase ‘get the issues behind us’ see Howard, ‘Wik Statement, above n150, and, for example: Howard, ‘Longreach Speech’, above n149 at 279; Howard’s speeches and media interviews on 7 Nov 1997; 30 Nov 1997; 6 Dec 1997; 8 Dec 1997; 8 Feb 1998; 25 Feb 1998; 4 April 1998; 9 July 1998; 10 July 1998: all available at <www.pm.gov.au/news/interviews/ index.cfm> and <www.pm.gov.au/news/media_releases/index.cfm> (1 February 2004).

[155] Osiel, above n7 at 106. The observation was made in the criminal context but there seems little doubt it applies similarly to civil

[157] Evans, Telling Lies About Hitler, above n5 at 271, is perhaps closer to the mark when he notes that the decision ‘utterly destroyed Irving’s reputation as a genuine historian of these events.’ Lipstadt, ‘Building a Defense Strategy’, above n5 at 243, quotes the New York Times’ assessment that the trial ‘put an end to the pretense that Mr Irving is anything but a selfpromoting apologist for Hitler’. Yehuda Bauer argues that since the trial denial is no longer acceptable ‘in polite society, in other words, where there [is] democracy’: Yehuda Bauer, ‘Holocaust Denial: After the David Irving Trial’ (2003) 15 Sydney Papers 154 at 160–161.

[159] See Golsan, ‘Maurice Papon and Crimes Against Humanity in France’, above n101 at 25, discussing Conan’s criticism of the Papon trial in Éric Conan Le Procès Papon: Un Journal d’audience (1998) 313.

[160] Douglas, above n49 at 173, and generally at 161–173. Douglas’ comments give pause here for the ways that Australia’s more recent past might be considered, especially with regard to the Stolen Generations and the different forums that heard testimony regarding the Stolen Generations: see, for example, above n10, the Cubillo cases and the Bringing Them Home report by the Human Rights and Equal Opportunities Commission. The role of truth commissions in this regard may also provide an interesting point of comparison: see above n135 and, in the Australian context, Richard Lyster, ‘Why a Truth and Reconciliation Commission? Some Comments on the South African Model and Possible Lessons for Australia’ (2000) 12 Current Issues in Criminal Justice 114.

[162] Jürgen Habermas, ‘On the Public Use of History’ in James Knowlton & Truett Cates, Forever in the Shadow of Hitler? (1993) 167, quoted in La Capra, above n62 at 98. For at least the last two years there has been much disquiet and objection to mandatory detention in Australia. The continuing bi-partisan political support it has in the parliament suggests that it has not yet captured the national imagination as it might but there are always signs that it will. See, for example, Marc Purcell, ‘Damaging Children, In Our Name’ The Age (Melbourne) 17 February 2004; Julian Burnside QC, ‘Speech to Melbourne Rotary Club in Debate with Senator Amanda Vanstone (Minister for Immigration and Multicultural and Indigenous Affairs)’ 16 February 2004, <http://www.users.bigpond.com/burnside/rotary.htm> (19 February 2004).

Sydney Law Review

Mcnamara, Lawrence --- "History, Memory and Judgment: Holocaust Denial, The History Wars and Law's Problems with the Past" [2004] SydLawRw 16; (2004) 26(3) Sydney Law Review 353

History, Memory and Judgment: Holocaust Denial, The History Wars and Law’s Problems with the Past

Abstract

1. Introduction

2. The History Wars

A. Windschuttle: The Fabrication of Aboriginal History

B. The Response to Windschuttle

C. What is at Stake

3. Defamation, Truth and History

A. Irving v Penguin & Deborah Lipstadt

(i) Distortion of the Evidence

(ii) Motivation

B. Defamation and the History Wars

(i) The Possible Scenarios

(ii) The Operation of the Action

4. History, Truth and Law

B. Relativism, Revisionism and Denial

(i) Postmodernism and Relativism

(ii) Postmodernism and Denial

5. Law, Judgment and Les Lieux de Mémoire

6. Conclusion: History, Memory and Judgment