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
* 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.
[6] Tatz, above n3.
[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 19th 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.
[11] See most notably Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 (hereinafter Mabo); Wik Peoples v Queensland; Thayorre People v Queensland (1996) 187 CLR 1 (hereinafter Wik); the different proceedings in Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 194 ALR 538; (2001) 110 FCR 244; [1998] FCA 1606.
[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).
[15] In re Southern Rhodesia [1919] AC 211 at 233–234, cited in Mabo [1992] HCA 23; (1992) 175 CLR 1 at 39 (Brennan J).
[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; 2nd 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.
[19] Mabo, above n11 at 104, 106, 109.
[20] Commonwealth, House of Representatives, Parliamentary Debates (Hansard), 30 October 1996 at 6158.
[21] Ibid.
[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.
[24] Windschuttle, Fabrication, above n23 at 3.
[25] Id at 3.
[26] Id at 4.
[27] Ryan, above n17 at 174.
[28] Reynolds, Fate of a Free People, above n17 at 75–76.
[29] Windschuttle, Fabrication, above n23 at 351–353, 358–359.
[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).
[31] Windschuttle, Fabrication, above n23 at 130.
[32] Id at 195.
[33] Id at 386.
[34] Id at 403, 114; see also 178, 367.
[35] Id at 26–28.
[36] Id at 402.
[37] Reynolds, Other Side of the Frontier, above n17 at 1; see also Windschuttle, Fabrication, above n23 at 5–7.
[38] Windschuttle, Fabrication, above n23 at 28.
[39] Id at 403, 404, 414–415.
[40] Id at 10.
[41] Windschuttle, Quadrant articles, above n23.
[42] Attwood & Foster (eds), Frontier Conflict, above n22.
[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).
[44] Macintyre & Clark, above n2.
[45] Manne, above n2 at 11.
[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.
[50] Moses, above n2 at 340.
[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.
[55] Macintyre & Clark, above n2 at 14–15.
[56] Native Title Amendment Act 1998 (Cth).
[57] Windschuttle, Fabrication, above n23 at 3.
[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]
[59] Krygier & Van Krieken, above n48 at 82 (emphasis in original).
[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 19th 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.
[66] Stanner, above n16 at 25.
[67] Hamilton, ‘The Knife Edge’, above n63 at 12.
[68] Burke, above n1 at 110.
[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 (9th 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.
[76] For the imputations, see Irving v Lipstadt at [2.15]
[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).
[78] Irving v Lipstadt at [1.3]; see also his reiteration of this: at [13.3].
[79] Id at [13.91].
[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.
[81] Irving v Lipstadt at [13.138].
[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
[82] Id at [13.139].
[83] Id at [13.141]–[13.144].
[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.
[86] For example, Defamation Act 1974 (NSW) s15(2)(a); Defamation Act 1952 (UK) s5; Irving v Lipstadt at [4.7]–[4.8].
[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.
[90] See nn 12–14 and accompanying text.
[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; 2nd 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.
[93] Fay, above n92.
[94] Reid et al, above n13 at 25.
[95] Id at 5, referring to Dickinson & Gidney, above n13.
[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.
[98] Goodall, above n13 at 109
[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’.
[108] Windschuttle, above n106.
[109] Ibid.
[110] Garton, above n91 at 57.
[111] Burke, above n1 at 99. The first elipsis in the quote is Burke’s.
[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.
[113] Stanley Fish, ‘Holocaust Denial and Academic Freedom’ (2001) 35 Valparaiso University Law Review 499 at 500.
[114] Berkhofer, above n 92 at 49.
[115] Michael Shermer & Alex Grobman, Denying History: Who Says the Holocaust Never Happened and Why Do They Say It? (2000) at 29.
[116] Appleby, Hunt & Jacob, above n92 at 207, 230.
[117] Berkhofer, above n92 at 49.
[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
[119] Lipstadt, above n51 at 18.
[120] Id at 17–19.
[121] See Fraser, above n51 at 171–172.
[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.
[123] R v Zundel [1992] 2 SCR 731 at 835.
[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.
[131] Rousso, The Haunting Past, above n61 at 57.
[132] Id at 50. See also Evans, ‘History, Memory and the Law’, above n13 at 344.
[133] Rousso, The Haunting Past, above n61 at 49.
[134] Osiel, above n7 at 39–40.
[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’.
[137] Douglas, above n49 at 6.
[138] Id at 2. Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (1963).
[139] Id at 2, 260.
[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].
[144] Rousso, The Haunting Past, above n61 at 20.
[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.
[151] Howard, ‘Longreach Speech’, above n149 at 276–279.
[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).
[153] Wood, ‘The Case of Maurice Papon’, above n97 at 44.
[154] Nora, above n64 at 13–14.
[155] Osiel, above n7 at 106. The observation was made in the criminal context but there seems little doubt it applies similarly to civil
outcomes.
[156] Tatz, above n3 at 139.
[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.
[158] See above n4 and accompanying text.
[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.
[161] Osiel, above n7 at 36 (emphasis in original).
[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).
[163] Graeme Davison, The Use and Abuse of Australian History (2000) at 14.