Old Dead Trees and Young Trees Green: The Cambridge Legal History of Australia

Being asked to write a review essay focused on a newly published and massive multi-authored legal history of Australia was rather daunting for this fellow-traveller from the other side of the Tasman, albeit one who has at least co-taught legal history in Australia (at the University of Adelaide) and who is blessed with a number of Australian colleagues and friends, a number of them contributors to the volume. Those experiences had, if nothing else, taught this reviewer that Australia is a large and complicated country, superficially like New Zealand, but in many ways deeply unlike it; and also that comparison between the two Southwest Pacific Dominions can easily fall into superficiality and faked profundity. Now a welcome review copy of The Cambridge Legal History of Australia has turned up at my Faculty in Wellington – and who does not like to have free copies of new Cambridge histories arriving in the mail?¹ The book is now here, no doubt at some expense, and the task must start. Where then, to begin?

We are told never to judge books by their covers, although habitués of bookstores (one of the greatest tragedies of the travel restrictions of the pandemic for this author has been severance from Abbey’s bookstore in Sydney) typically do precisely that. Publishers lavish careful attention on covers for good reason. One may as well begin, then, with the cover of The Cambridge Legal History of Australia and with the book as an object (or work of art, rather).

This is a very handsome book indeed. Its cover design conforms to an older style of Cambridge History, familiar to those who possess volumes of the Cambridge Ancient History, or the Cambridge History of Law in America. But what stands out here is the colour of the dust jacket: a stunning orange-vermilion that echoes, surely by design, the colours of the Australian outback and of much Australian Aboriginal painting. The effect is enhanced by the lettering in black and white, which might be by design too (though perhaps that may be pushing analysis of book design rather too far). The design and external appearance of this book announce, to anyone browsing the shelves at Abbey’s, that this is a book about Australia, a big, important country (as it does) that deserves a Cambridge history about its law all to itself (which it is). The book as object is self-evidently new: properly Cambridge History, and so internationally recognisable, but new, Australian, not fuddy-duddy. A big exciting book that promises weighty scholarship: a promise that it delivers.

In a departure from most Cambridge Histories, the book has coloured plates and coloured maps, positioned at what might be called its beating red heart. One plate is a reproduction of a painting, Atmengkerre – Two Laws Together, acknowledging Chips Mackinolty and the Aboriginal Artists Agency Ltd, which combines a contemporary Australian Aboriginal painting with a forested landscape, and with an Indigenous Australian man at the centre of the plate. The other plate is a reproduction of a painting by Augustus Earle (circa 1826) depicting an Aboriginal Australian family sitting down on an English settlers’ farm property. (Augustus Earle, who also painted Māori people in Aotearoa, is a familiar name on my side of the Tasman.) The painting is in muted tones, and a little sad. The family – parents and child, with a couple of dogs – occupy the foreground and some way off is the farm house, all horizontal lines and neat rectangles, with the settler couple standing on the veranda, the wife somewhat further off in the background. The plate symbolises an old reality: in which a humbled and marginalised Indigenous society was juxtaposed to a linear colonial world with its new and straight boundary lines. Today, the reality the painting conveys can itself only be seen as history: the inclusion of the plate is a nod to an old and once-familiar Australia that has become a historical curiosity.

One of the two maps shows the homelands of the Australian Aboriginal peoples referred to from time to time in the text, an adaptation of the AIATSIS map of Aboriginal Australia, which many Australians will have seen. The map shows state boundaries and the locations of Australia’s great cities, but it is dominated by the bold pink-orange representations of Indigenous Australian lands and the names of its peoples. The colonial presence is faint. The map seems to represent the overlay of a hesitant colonial upon Indigenous clarity and solidity. Off in the lower right corner is a portion of ‘Aotearoa/New Zealand’, another indigenous world far away. The other map, even more striking, and even more beautiful, depicts Indigenous estates as at 1 January 2021. Here too is Indigenous Australia but in a new guise, the sheer extent of the lands now under formal Australian Aboriginal sovereignty being simply breathtaking. Something continuous, but also new, contemporary, indicative of growth and promise for the future. The paintings and the maps epitomise the book as a whole, whether accidentally or deliberately.

The Cambridge Legal History of Australia is heartening in many ways. Obviously it reflects a post-Mabo Australia. How could it not have? An Australian legal history textbook that failed to do that, surely, would have been unthinkable. This book does not fail. One of the editors, Dr Mark McMillan, is himself an Indigenous Australian (Wiradjuri, New South Wales), as are a number of the contributors, Eddie Cubillo, Paul Gray, Shino Konishi, Daryle Rigney, Denis Rose, Nicole Watson; and yet other contributors have close links with Indigenous Australian communities and have spent their careers immersed in the study of Indigenous Australia. Some chapters are indeed, wholly or partly, histories of Indigenous laws. An example is the long chapter on Indigenous governance, co-authored by Tim Rowse, Jennifer Green, Daryle Rigney, Denis Rose, Alison Vivian, Miriam Jorgensen, Steven Hemming and Shaun Berg. The Cambridge Legal History of Australia breathes a new spirit, not only into Australian historiography, but into the whole domain of legal history internationally. It is far more conceptually and methodologically interesting than two recently-published Oxford Handbooks of Legal History, which, for all their virtues, remain with some exceptions overwhelmingly Euro- and Anglocentric both in terms of their authorship and content.² This volume is not like that. And although the Cambridge Legal History of Australia is modelled to some extent on The Cambridge History of Law in America, it is far more indigenous in spirit and content than the latter. The Cambridge History of Law in America was as Anglocentric as could be. It adhered strictly to the standard England-Colonial-American revolution-US Constitution narrative, neglecting entirely indigenous, Spanish and Mexican legal histories of the USA. The Cambridge Legal History of Australia is much more innovative, much more modern, than its putative model.

In this book, the legal history of the encounter between governments and the Indigenous peoples of Australia is not merely an important story. Rather, it is the main story. My guess is that this will be welcomed by many Australians, whether interested in legal history or not, but doubtless there will be dissenters. Some will complain that in this respect, The Cambridge Legal History of Australia has overdone it. Let them complain. Not only is the Indigenous–state encounter the main story, it is the most interesting story, especially for readers outside of Australia. Readers from Canada, New Zealand and the United States will be expecting a post-Mabo legal history and would have been surprised and disappointed had it not been there.

I do not propose here to review and comment on all the chapters of this intellectual and cultural feast. Each will find its way into existing historiographical debates amongst specialists in the legal history of Australian family law, environmental law, constitutional law, and so forth. I hope only to capture the mood, tone, and significance of this outstanding collection.

Where does The Cambridge Legal History sit in the culture of national legal histories? And in the national histories of comparable countries? American historiography has traditionally been dominated by the debate between the Hartzians and the Turnerians: was the United States a product of its originating culture, seventeenth-century Protestant England, or did the United States’ institutions develop rather from the frontier and the abundance of cheap land? (A related debate over the respective influences of the frontier and the British legacy developed in New Zealand, no doubt under the stimulus of American historiography, between W.H. Oliver and Keith Sinclair.³) In the United States a complex historiography is now developing as historians bypass the earlier ‘frontier’ historiography associated with Frederick Jackson Turner and his followers and disciples, a historiographical model increasingly supplanted by the ‘New Western History’ exemplified by Patricia Nelson Limerick and Richard White.⁴ But Turner is not being bypassed in favour of a return to a vision of America as a projection of the British Isles.

The Cambridge Legal History of Australia is Turnerian in that it sees Australian law as made, above all, in Australia. Older legal histories of Australia tend to begin not with the First Fleet but with the Battle of Hastings, or the Witenagemot. There are, however, no chapters here on the English law background, or anything similar. The contribution that comes closest to that is David Lieberman’s chapter on English legal culture in the eighteenth century.⁵ The chapter is very brief. It is about what it says it is about: English legal culture. The chapter is no paean to the Immortal Wisdom of the Common Law, but emphasises the diversity and plurality of English legal culture, and has as much to say about statute as it does about the Common Law. It is a survey of the legal thinking that was inside the colonists’ heads at the time of the founding of Australia and goes no further. People from the British Isles landed in Australia with certain legal ideas, the chapter seems to say. Other people were already there with their legal ideas. Now, the real story begins. To learn about Magna Carta, the Glorious Revolution, and the Court of Chancery, gentle reader, look elsewhere. After all, the legal history of the Common Law is not exactly an under-researched field, and potted summaries of the histories of contract law or the British Constitution are typically tedious both to write and to read. Those interested have the weighty tomes of the Oxford History of the Laws of England at their disposal.

Whether Australian law students will be expected to buy copies of this book and whether the whole text will be used as a teaching tool I do not know. Cambridge Histories are usually beyond the purse of university students anywhere, but doubtless bits and pieces of The Cambridge Legal History of Australia will be showing up in course materials across Australia – and elsewhere. It will be a standard reference, and is guaranteed to be widely read and utilised, even if not everyone will be able to read it right through, vermilion cover to vermilion cover.

To say that this is a post-Mabo legal history of Australia is, in a way, true, but in many ways inadequate. Mabo was itself but one component of an intellectual revolution in Australia, brought about by the realisation that Australian Aboriginal settlement was almost mind-numbingly ancient, but also by the long-delayed realisation that Australian Aboriginal people are our contemporaries. Not so long ago, books were still being written based on the premise that Aboriginal peoples were in fact ‘stone age’ people.⁶ According to the pioneering ethnographers B. Spencer and F.J. Gillen, joint authors of a classic account of the ‘stone age’ Arunta (Arrernte) people of central Australia, the objective of their book was to give a ‘complete account’ of the

social organization, customs, beliefs and general culture of a people that affords as much insight as we are now ever likely to gain into the manner of life of men and women who have long since disappeared in other parts of the world and are now known to us only through their stone implements.⁷

It was also once thought that Aboriginal rock painting was a kind of doorway to understanding the famous prehistoric cave paintings at Lascaux, Altamira and other sites in Europe. This is, needless to say, an approach which has long been abandoned by scientific interpreters of Australian Aboriginal artistic traditions.⁸ Australian Aboriginal people are our own contemporaries, not relics of earlier phases of human history. But that is not to say that such cultures are ‘timeless’, static, or lack a history of their own. There is no reason to imagine that Australian Aboriginal peoples have always been the same in the past as they are today, that the ecology of central Australia has been unchanging, that Australia does not have an ancient and complex cultural, artistic, cultural, linguistic and, come to that, legal history, or that ancient Australia was at all times cut off from the rest of the globe once it had been settled.⁹

One important context for this book has been a twofold revolution in the understanding of Australian, Southeast Asian, and Pacific prehistory. The first major shift has been the proof of the antiquity of human settlement in the Australian continent, something like 40,000 years. The second is the Lapita revolution in Austronesian archaeology, named after a particular ceramic style found in much of Southeast Asia, Near Oceania, and western Polynesia. This discovery, combined with new research in linguistics and genetics, has shown that around 1000 BCE, Austronesian-speaking navigators migrated southwards from Taiwan via the Philippines to island Southeast Asia, to what used to be called ‘Melanesia’, and from there to Tonga, Samoa and Fiji. Lapita ceramics have been found in the Torres Strait Islands and some believe that it is only a matter of time before they turn up somewhere in northern Australia. The Austronesian newcomers mingled with the much older Pleistocene populations of New Guinea and Near Oceania, and the descendants of this mixing carried on sailing eastwards to Tonga, Samoa and Fiji: from where, two millennia later, they colonised the rest of the uninhabited Pacific. What has this to do with Australia? Quite a bit. The peoples of Torres Strait belong to a vast Austronesian world, a world which, it is reasonable to assume, was in contact with the Australian continent at least since 1000 BCE. People who can sail from New Britain to Fiji are not going to have any problems getting from Mer to Cape York. Australia has always been part of a wider world, especially so if we think of the Torres Strait Islands as ‘Australia’, and surely there is no reason not to. After all, Mabo began its journey to the High Court of Australia from Torres Strait.

More has been going on, in other words, than Mabo. Mabo reflected a cultural and historiographical revolution that was already in place, driven in part by new discoveries and new thinking in the human sciences. Australia, we now can readily see, has a very long and ancient history. It is an old place, an ancient place, not a new place. The most enduring reality is the ancient and Indigenous reality, but the realisation of that is new. Today, the ‘old dead tree’ is the habit of seeing Australia as new, colonial, a British offshoot, tyrannised by distance. The ‘young tree green’, the new way of seeing, is to see Australia’s antiquity and its links with the globe. That is the reality expressed by this outstanding book, a new legal history for a renewed ancient Australia.

One of the clearest expressions of this new reality is Coel Kirby’s brilliant chapter on ‘Australia and the World’.¹⁰ Conditioned by previous works, this reader began this chapter expecting a swift procession through 1788, Federation, ANZAC, World War II in the Pacific, SEATO, and Vietnam. Goodbye to all that. Dr Kirby paints a very different picture of Australia ‘in the World’, one that is mindful, as he puts it, of the insistence of Indigenous scholars ‘that First Nations’ legal orders governed international relations for millennia’ before the ‘hegemonic imposition’ of the expansion and domination of European empires in the Pacific.¹¹ Australia was there as ‘a place’ for millennia before French and British colonial expansion. Even within the more restricted timeframes of Austronesian settlement in Southeast Asia and the Pacific, there was an extensive history of globalism and contact with the peoples of Australia long before the arrival of Cook. In a book full of important chapters, this is one of the most important.

There are some new takes on older controversies. Other historians have emphasised the complexities of the Australian penal colonies and have argued for the persistence of English legal norms and traditions of self-government within the overall penal-colonial framework. Some recent historiography has downplayed the abnormality of early colonial Australia to stress, instead, the ways that it was ‘normal’ and typically British.¹²

In this volume, the emphasis is on colonial variety. By any measure, it is New South Wales, the first of the Australian penal colonies, that stands out as highly militarised and authoritarian. Bruce Kercher believes that the legal system of New South Wales was both autocratic and largely amateurish. The militarised and authoritarian tendencies are apparent in colonial New South Wales at many levels. According to Kercher:

The new colony’s legal structure was autocratic, with the governor at its centre. There was no colonial council, legislature, or court of original jurisdiction until 1824. In the meantime, the governors alone made local laws, called orders or proclamations. In the absence of an Executive Council the governors were also in complete control of colonial administration, and they controlled the courts.¹³

That New South Wales was run by an authoritarian and coercive regime was noted by other Australian historians long before Kercher’s elegant summation of the legal evolution of New South Wales from ‘colonial settlement’ to ‘colony’ in this volume. But Kercher breaks new ground in stressing the unprofessional aspects of the legal system as it operated in early New South Wales. An important characteristic of law in early New South Wales, Kercher writes, was its ‘amateurism’, itself a characteristic of the judicial systems of the entire British empire at the time.

The first judges had no legal training, and there were no official lawyers to advise the governors. This was common across the Empire in the early nineteenth century. Even the appeals committee of the Privy Council included some members without legal qualifications; so, there should be no surprise that Sydney saw the brief appearance of only one legally qualified judge before 1809.¹⁴

This, it seems, repositions the debate on the ‘normality’ and ‘Britishness’ of the Australian penal colonies. In fact early New South Wales was quite normal, but not in a good way: it was ‘normal’ in its very authoritarianism and amateurism. This seems to open up fertile lines for comparative studies: was New South Wales basically a variant on a model exemplified by Jamaica, Belize, Trinidad, or Sierra Leone?¹⁵ In New Zealand the institutions of the colonial state in the 1840s were even more fragmentary; in the entire South Island the ‘government’ comprised one voluntary magistrate. The arrival of the Common Law in Australia was hesitant and fragmentary. It took a long time to strike deep roots, and has by no means swept all before it. Australia’s former certainty as a bastion of the Common Law first and foremost, is no truer of Australia than it is of India, Pakistan, Nigeria, Sierra Leone – or New Zealand, come to that.

Because of the particular orientation of this book, the standard categorisations of legal history – obligations, constitutional law, crime, punishment, commercial law, etc. – have not proved sufficient to convey the legal history of Australia in ways that the editorial team and the authors see as necessary. Amanda Nettelbeck’s chapter on ‘Protection Regimes’ is a good example; indeed the chapter practically creates a new subject for legal-historical analysis virtually from scratch.¹⁶ Yet the field that Professor Nettelbeck explores in this fascinating and timely chapter is a vital part of Australian legal history. Protection regimes are those legal devices, of necessity created by statute, established to manage and ‘protect’ (the scare quotes are very necessary) the Indigenous peoples of Australia. This new legal-historical categorisation allows Nettelbeck to assemble a long legal history that begins with the Protectors of Aborigines first established by the Colonial Office, and takes the reader on a journey through Governor Gipps’ reports to the Colonial Office, Victoria’s Aborigines Protection Act of 1869, Western Australia’s equivalent legislation of 1886, Queensland’s Aboriginal Protection and Restriction of Sale of Opium Act 1897, and the protection and welfare boards of the 1970s, finishing up with the class action relating to stolen wages brought against the government of Queensland in 2019. In fact, the story is not even over: ‘the issue of Indigenous stolen wages remains in many ways “unfinished business” in Australia today’.¹⁷

The colonial and state ‘protection’ statutes ranged from something like welfare systems to regimes that could be highly coercive and – in the Western Australian case at least – little more than labour control devices that served the interests of employers. Nettelbeck’s chapter also illustrates some other themes. In a continental-sized nation with an abundance of legislatures, and where statute law quickly came to be the dominant form of law-making, inevitably states journeyed down varying pathways. Thus Aboriginal protection laws ended up working rather differently in Victoria than they did in Western Australia. Australian readers, well aware of the different political and legal cultures of the states, will not find any of this surprising, but non-Australian readers will swiftly come to grasp that generalisations about ‘Australian’ law are difficult where they are not suspect.

The attention that Nettelbeck pays to the differences between the statutory regimes in the separate colonies and the states helps to undermine any legal history of Australia that might be couched in terms of the beneficent spread of the Common Law across a continent. Rather, Australian law was fractured, dominated by statute at the state and Commonwealth level, and for that reason ‘the law’ has always been a political product and governed by political pressures which differed across the states. The legal and political cultures of South Australia and New South Wales, for example, were markedly different. The discovery by the critical legal studies school that ‘law is political’ is not much of an insight when it comes to Australia – or New Zealand – where much of the law that really counts is by definition the product of politicised legislatures. That can only mean that the traditional categorisations of legal historical writing are never going to work very well in Australia, and new categories may be needed. Where might ‘protection regimes’ fit into the standard classifications of legal history, after all? They were criminal law, labour law, social welfare law, family law, and more (and less).

The traditional categorisations are nonetheless well-served in this volume. There are three chapters on criminal law, which can sometimes be neglected in single-volume legal histories. David A. Roberts’ chapter is concerned with criminal law in the early penal colony days in New South Wales and Van Diemen’s Land. The general picture presented is one of a more or less uncomplicated transfer of the eighteenth-century English-Irish system made familiar to legal historians by J.H. Langbein, Douglas Hay, J.M. Beattie et al., albeit that there were ‘tensions and confusions’ (603).¹⁸ Another chapter deals with ‘Criminal Justice after the Convicts’, a really excellent discussion of what seems to be rather neglected terrain. (The history of criminal justice in the ‘long twentieth century’ in New Zealand, Richard Hill’s books about policing aside, is certainly embarrassingly neglected and this chapter offers a very helpful model of how it might be written about.¹⁹) Mark Finnane’s chapter on ‘Indigenous Peoples and Settler Criminal Law’ begins with an opening sentence which punches the reader right in the face: ‘Indigenous peoples in Australia are among the world’s most incarcerated populations’.²⁰ Finnane’s chapter is one of the most deeply-researched and scholarly chapters of the entire book and a major contribution to its rather fraught subject. The chapter concludes on an uncompromising note: ‘as the blunt instrument of administration of Aboriginal lives, the criminal law too often was an occasion for compounding injustice, expressed today in the reality of mass incarceration’.²¹ This is not a celebratory history. When it comes to criminal law and indigenous peoples, I might add, New Zealanders have no right to feel complacent.

While making my way through the individual chapters, try as I might, I found myself unable to avoid making mental comparisons between Australian and New Zealand legal history. Sometimes the two kindred trans-Tasman jurisdictions have marched in lockstep, at other times not. In the case of labour law, which we used to call ‘industrial’ law, the subject of an admirable chapter by Diane Kirkby, the story is pretty much identical – but not quite.²² Kirkby begins with master and servant law, an English inheritance, which lingered on in Australia but which was never of any significance in New Zealand. The rest of the story is the same: that is to say, the rise and fall of the award system and compulsory conciliation and arbitration. Both countries had powerful arbitration courts. Both supplemented the tort system with workmen’s compensation statutes. And both countries suddenly jettisoned the whole edifice, at around the same time in fact. Kirkby concludes:

Despite widespread public support for its continuance, the election of neoliberal governments … in the 1990s brought the dismantling of arbitration. A new system was instituted – of enterprise bargaining and individual workplace agreements – which restored the power of employers that was more akin to the era of master and servant.²³

Yes, indeed: and in New Zealand, ditto. This reviewer would have liked to know more about Professor Kirkby’s thinking about neoliberalism, labour law, and why the former triumphed on both sides of the Tasman at the same time, but doubtless these topics will be pursued by this distinguished contributor elsewhere, or maybe have been already.

Mark Lunney’s chapter on civil wrongs was also most interesting, and showed, in a classic piece of caselaw exegesis, how the Australian courts have been able to orient the Australian law of obligations to take account of local circumstances. The study seems to reveal a careful pragmatism: the Australian courts do not seem to have ventured on a new project of creating an Australian common law in this area, probably because the common law of contracts and torts has on the whole served Australia tolerably well, with a bit of tweaking here and there. Here it is New Zealand which has made the conceptual leap, with its abolition of the common law forms of action in the field of personal injury by accident and replacing them with a statutory system of accident compensation financed by compulsory employer contributions to what is essentially a kind of national insurance. Large parts of torts courses in New Zealand end up being devoted to ‘ACC’, as we know and love it, leaving the study of negligence largely confined to defective inspections of new houses by council inspectors, cases which are somewhat less dramatic than workers in steel mills being splashed in the face by molten metal. So here is a big difference between the two systems. Why, one wonders? The Whitlam government gave no-fault accident compensation a go, but it went nowhere. It was killed off, so I understand, by the dismissal and the unsurprising hostility of the insurance industry, which selflessly argued that no-fault accident compensation would generate a dependency mentality, which doubtless has occurred in benighted New Zealand. Perhaps some room could have been found in Professor Lunney’s exemplary chapter for a bit of information on Australia’s efforts to establish no-fault accident compensation, why it failed to happen and the chances of its resuscitation in contemporary Australia.

In terms of the coverage of the book as a whole, what’s missing? Nothing much that I can see, and anyway reviewers are not asked to propose alternative chapter designs for books of essays. Maybe the marxisant would have liked to see more on the legal transplantation of the institutions of British capitalism: insolvency statutes, the legislation relating to joint-stock companies, special contracts and so forth. Australia, like New Zealand, was, after all, a place where capitalism, aided by the Common Law and statutes that were mere carbon copies of English precursors, soon took root. Writing about the legal history of company and bankruptcy law can still be critical, as it often is in the USA. Writing of the American colonies in the eighteenth century, Bruce H. Mann has drawn attention to the centrality of credit in colonial life. In early America, ‘credit was the wheel of commerce, both foreign and domestic’, and was the ‘engine of internal development’.²⁴ This is no less true of colonial Australia and New Zealand. There might have been a bit more, here and there, in the chapters engaging with transportation of convicts, about the first phase of convict transportation to America before Botany Bay, where the basic legal frameworks were first set in place, and also about New Caledonia as France’s penal colony counterpart to New South Wales and Van Diemen’s Land.²⁵ All minor quibbles. No doubt there will be some (there always are) who feel that their particular interests have not been granted adequate space and attention. No need to worry about them.

The editors’ introduction (1–13) is outstanding, and very interesting. For non-Australian readers, though, it is, if anything, rather too good: too brief, and too much to the point. A few more paragraphs about trends in Australian legal historiography to date might have helped us New Zealanders, Canadians, and Americans place the chapters in their local historiographical context. But the crispness of the introduction doesn’t matter too much, and those needing to get acquainted with Australian historiography will find plenty of pointers in the footnotes of this book. In a way, Professor Konishi’s very comprehensive chapter, ‘Reckoning with the Past’, is a kind of introduction as well as a retrospect, and readers might be advised to read her chapter before tackling most of the others in order to place the book as a whole in its context of recent Australian legal and cultural history.²⁶ This chapter makes a vital point about the pluralism of Indigenous law in Australia, ‘each system grounded in the Dreamings and oral traditions of a particular nation’ (742). No doubt, and it would be fascinating to learn more. Is there an ethnography or anthropology of comparative Indigenous law in Australia, I wonder?

The Cambridge Legal History of Australia is very much a reflexive work in that it contains plenty of material pondering the cultural and legal shifts in Australia of which it is itself an example. This reviewer very much liked Nicole Watson’s chapter on indigenous legal traditions and Australian legal education.²⁷ Her chapter is at the same deeply scholarly, highly comparative – with a fascinating discussion of the teaching of indigenous law in Canada – and also highly personal. She tells us that her own experience of law school in the 1990s ‘was characterised by confusion and discomfort’ (728). I bet it was, and many Māori and Pasifika lawyers in New Zealand could say as much (and do). The chapter is very relevant in Aotearoa, as our law schools anxiously engage with a new requirement to introduce courses on tikanga, that is Māori law/philosophy/jurisprudence/custom – it’s a complex concept – into all LLB courses. Watson’s key point is that courses about the impact of Australian law on Indigenous Australians are not the same thing as courses about indigenous jurisprudence. It’s easy enough to put Mabo v. Queensland into courses on property and public law, but actually teaching indigenous law, as such, is much harder. New Zealand has not found the going any easier. What should tikanga courses be about, who should teach them, how should they be taught, what do we ask the students to read? They’re going to have to read something. Here, perhaps, legal history itself as sub-field has a contribution of its own to make. Whose history is legal history?²⁸ How to avoid the trap of the ethnographic present in the field of indigenous law? Given there is such a thing as indigenous law, it isn’t simply there, it must have a history too. How can its history be recovered and taught? In the case of Polynesia, that history is recoverable, but how about the vast stretches of time that are in play in Australia?

These thoughts can be pursued a bit further by considering one of the most interesting chapters in the book, Kathy Bowrey’s contribution on Australian copyright law.²⁹ Sadly, this reviewer has to admit that while he was certainly aware of Albert Namatjira, he had never encountered May Gibbs or Snugglepot and Cuddlepie. My loss, and my children’s and grandchildren’s – and fortunately it is not too late for all of the latter. The stories of May Gibbs’ and Albert Namatjira’s encounters with copyright law are well-told and fascinating and throw an interesting light on the legal history of copyright law in Australia, and the chapter is certainly very successful. But what is missing is a sense of the antiquity of intellectual property law in Australia. Pacific societies, including the Māori people of New Zealand and also many societies in Near Oceania (‘Melanesia’), had very elaborate concepts of intellectual property. It would be surprising if Australian Aboriginal and Torres Strait Island cultures did not have the same. That is, intellectual property law in Australia probably also has a long history. There may be a bit of a tendency – not of the authors, but generally in academia – to assume that Indigenous law relates principally to land and sea tenures, family relationships, and ecological management. But it extends to commercial, personal property, and intellectual property law too. The works of the functionalist anthropologists who have worked in the Pacific, Malinowski and Sir Raymond Firth amongst them, both of whom were very interested in law, make this very clear. The famous Kula trading cycle of the Trobriands that Malinowski described in his famous Argonauts of the Western Pacific could not have operated without concepts of exchange, payment, contracts, and personal property rights.³⁰ I suppose that what I am really saying is that legal historians working in Australia and those who concentrate on Oceania might well find that they could significantly enrich one another’s work.

Perhaps, before too long, we might see a Cambridge Legal History of Oceania, a companion volume, the dust jacket toned in Pacific hues of the turquoise blue of the lagoons and the deep green of the plantations and forests. Whether that happens or not, The Cambridge Legal History of Australia is a milestone both in Australian historiography and in the wider field of global legal history.

Notes

1 Peter Cane, Lisa Ford and Mark McMillan, eds, The Cambridge Legal History of Australia (Cambridge: Cambridge University Press, 2022).

2 Markus D. Dubber and Christopher Tomlins, eds, The Oxford Handbook of Legal History (Oxford: Oxford University Press, 2018); Heikki Pihlajamäki, Markus D. Dubber and Mark Godfery, eds, The Oxford Handbook of European Legal History (Oxford: Oxford University Press, 2018).

3 See Keith Pickens, ‘The Writing of New Zealand History: A Kuhnian Perspective’, Historical Studies 17, no. 68 (1977): 384. Keith Sinclair, A History of New Zealand (Harmondsworth: Penguin, 1959) is essentially Turnerian (stressing the frontier and the local creation of culture and identity); W.H. Oliver, The Story of New Zealand (London: Faber and Faber, 1960) is essentially Hartzian.

4 Patricia Nelson Limerick, The Legacy of Conquest: The Unbroken Past of the American West (New York: Norton & Company, 1988). Nevertheless the frontier thesis remains alive and well, and numerous distinguished books by prominent American and Canadian historians have been published recently which continue to utilise the concept of the frontier.

5 David Lieberman, ‘English Legal Culture in the Late Eighteenth Century: Institutions and Values’, in The Cambridge Legal History of Australia, 40–60.

6 See, for example, Ion Idriess, Our Living Stone Age (Melbourne: Angus and Robertson, 1963).

7 B. Spencer and F.J. Gillen, The Arunta: A Study of Stone Age People (London: Macmillan, 1927), vii. This book correlates with the evolutionist phase in the history of cultural anthropology, which has long been supplanted by the functionalist school of Malinowski and others as well as by the style of anthropology pioneered by Franz Boas in the USA. See generally G.W. Stocking, After Tylor: British Social Anthropology 1888–1951 (Madison: University of Wisconsin Press, 1995).

8 See Mike Smith, The Archaeology of Australia’s Deserts (Cambridge: Cambridge University Press, 2013), 212–67. The modern emphasis is to understand Aboriginal rock art as a product of complex cultural traditions unique to Australia and to discard synchronic and diachronic comparisons.

9 Ibid.

10 Coel Kirby, ‘Australia and the World’, in The Cambridge Legal History of Australia, 281–302.

11 Ibid., 282.

12 See e.g. John Hirst, Freedom on the Fatal Shore: Australia’s First Colony (Melbourne: Black Inc., 2008). This book is a consolidation of the same author’s Convict Society and Its Enemies (1983) and The Strange Birth of Colonial Democracy (1988).

13 Bruce Kercher, ‘Colonial Settlement to Colony’, in The Cambridge Legal History of Australia, 87–107.

14 Ibid., 88.

15 See Catherine Hall, Civilising Subjects: Metropole and Colony in the British Imagination (Cambridge: Polity, 2002).

16 Amanda Nettelbeck, ‘Protection Regimes’, in The Cambridge Legal History of Australia, 482–501.

17 Ibid., 499.

18 See John H. Langbein, The Origins of Adversary Criminal Trial (Oxford: Oxford University Press, 2003).

19 See Richard Hill, The Colonial Frontier Tamed: New Zealand Policing 1867–1886 (Wellington: Historical Branch, Department of Internal Affairs and GP Books, 1989).

20 Mark Finnane, ‘Indigenous Peoples and Settler Criminal Law’, in The Cambridge Legal History of Australia, 629–50, 629.

21 Ibid., 650.

22 Diane Kirkby, ‘Labour Law’, in The Cambridge Legal History of Australia, 671–92.

23 Ibid., 688–9.

24 Bruce H. Mann, ‘The Transformation of Law and Economy in Early America’, in The Cambridge History of Law in America, vol. I, Early America (1850–1815), eds Michael Grossberg and Christopher Tomlins (Cambridge: Cambridge University Press, 2008), 365–99, 377.

25 On the American phase of British transportation, see A. Roger Ekirch, Bound for America: Transportation of British Convicts to the Colonies, 1718–1775 (Oxford: Clarendon Press, 1987). On the various forms of free and unfree migration to, and of labour in, colonial British North America, see Christopher Tomlins, Freedom Bound: Law, Labour and Civic Identity in Colonizing English America, 1580–1865 (Cambridge: Cambridge University Press, 2010). Tomlins argues, in an extended discussion, that the boundaries between ‘free’ and ‘unfree’ labour in colonial British North America were highly permeable; I can see no reason why the same could not be said of colonial Australia, which received not only convicts but also enslaved Pacific islanders, sent there by means of what is euphemistically referred to as the Pacific ‘labour trade’. I may have missed it, but I couldn’t find anything about the latter in The Cambridge Legal History of Australia; on New Caledonia as France’s penal colony, see Louis-José Barbançon, L’Archipel des Forçats (Paris: Presses Universitaires de Septentrion, Paris, 2003), 15.

26 Shino Konishi, ‘Reckoning with the Past’, in The Cambridge Legal History of Australia, 740–64.

27 Nicole Watson, ‘Indigenous Legal Traditions and Australian Legal Education’, in The Cambridge Legal History of Australia, 721–39.

28 See further, Ron Harris, ‘Is It Time for a Non Euro-American Legal History?’, The American Journal of Legal History 56, no. 1 (2016): 60.

29 Kathy Bowrey, ‘Place and Race in Australian Copyright Law: May Gibbs’s and Albert Namatjira's Copyright’, in The Cambridge Legal History of Australia, 693–718.

30 Bronislaw Malinowski, Argonauts of the Western Pacific (New York: E.P. Dutton & Co, 1961; originally published 1922).