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Law, History, and the Idea of the High Court

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I want to bring a slightly different perspective to those you have heard to this point: a legal perspective, with special reference to the High Court.

Reading through the program, what really struck me was how so many of the issues of history and historiography manifest themselves in the High Court, whether through the way they shape the issues that arise for decision, or in relation to how we see the role and impact of the Court itself as one of our institutions of national government. Just think of these themes in your program: colonialism, federation, national unity, democracy, environmental history, military history, indigenous history, gender issues. I could tell you the story of the High Court (and I must say that I think of history essentially as stories) from any or all of these perspectives: how these issues assume legal form and are pronounced upon by the Court, and how the currents of history themselves sweep through the Court and affect our assessment of it as an institution.

Moreover, the High Court’s own decision-making processes raise all of the familiar questions of historiography: questions of evidence and proof, of fact selection, of interpretation of texts, and so on. Former High Court Chief Justice Sir Anthony Mason will touch on that in the next session – let me first go back a step and say a bit about the some of the differences between law and history.

This paper was presented at the Australian Government Summer School For Teachers Of Australian History Conference, Canberra, Australia, 14-23 January 2008.

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