| The Honourable Lionel Murphy QC |
|
|---|---|
| Attorney-General of Australia | |
| In office 1972–1975 |
|
| Preceded by | Gough Whitlam |
| Succeeded by | Kep Enderby |
| Constituency | Senator for New South Wales |
| Puisne Justice of the High Court of Australia | |
| In office 10 February 1975 – 21 October 1986 |
|
| Nominated by | Gough Whitlam |
| Preceded by | Sir Douglas Menzies |
| Succeeded by | John Toohey |
| Personal details | |
| Born | 30 August 1922 |
| Died | 21 October 1986 (aged 64) |
| Political party | Australian Labor Party |
| Spouse(s) | Nina Morrow Ingrid Gee (née Grzonkowski) |
Lionel Keith Murphy, QC (30 August 1922–21 October 1986) was an Australian politician and jurist who served as Attorney-General in the government of Gough Whitlam and as a Justice of the High Court of Australia from 1975 until his death.
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Murphy was the youngest son of William and Lily Murphy, and grew up in Sydney. He was educated at state schools, including Sydney Boys High School, and the University of Sydney, where he graduated in science and law, both with honours.
He was admitted to the bar in 1947, and became a QC in 1960. In July 1954, he married Nina Morrow at St John's Church in Darlinghurst, Sydney. Their daughter, Lorel Katherine, was born in 1955. In 1967, Murphy's marriage to Nina ended in divorce. In 1969, Murphy married Ingrid Gee (née Grzonkowski). They had two sons, Cameron Murphy (who, as of 2005, heads the New South Wales Council for Civil Liberties), and Blake Murphy. Ingrid died in October 2007.[1]
A member of the Australian Labor Party from an early age, he was elected to the Australian Senate in 1961, and, in 1967, he was elected Opposition Leader in the Senate.[2] In the Senate pre-selection Convention in the Sydney Trades Hall in April 1960, with backing from Ray Geitzelt (but lacking factional endorsement) and with the luck of drawing first in addressing the delegates, Murphy won support with an impassioned but well structured and infectiously optimistic seven minute speech on the Labor Party's historical commitment to civil liberties and human rights.[3] In 1969 Labor Leader Gough Whitlam appointed him Shadow Attorney-General, and when Labor won the 1972 election he became Attorney-General and Minister for Customs and Excise.[4]
One of Murphy's more dramatic actions as Attorney-General was his unannounced visit to the Melbourne headquarters of the Australian Security Intelligence Organisation (ASIO) in March 1973. This came about because ASIO officers were unable to satisfy his requests for information concerning intelligence on supposed terrorist groups operated by Croatian Australians. Murphy's concern about the matter was heightened by the impending visit to Australia of the Yugoslav Prime Minister Dzemal Bijedic. ASIO officers claimed not to be able to locate the file with which to properly brief Murphy. Murphy's belief was that though a security service was an important part of the Australian social fabric, like any other arm of executive government it must be accountable to the relevant Minister.[5] According to journalist George Negus, then Murphy's press secretary: "Lionel had asked for the files of the six most dangerous or subversive people in Australia", recalled Negus. When they arrived, Murphy found they were of several CPA unionists and people such as CPA leader and peace movement activist Mavis Robertson... When he told Whitlam they both laughed.[6]
Murphy's most important legislative achievement was the Family Law Act 1975, which completely overhauled Australia's law on divorce and other family law matters, establishing the principle of "no fault" divorce, in the face of opposition from the Roman Catholic Church and many other individuals and organisations. This act also established the Family Court of Australia.[7] As Attorney General Murphy drew up a Human Rights Bill (which lapsed with the double dissolution of 1974) giving as amongst the reasons: "in criminal law, our protections against detention for interrogation and unreasonable search and seizure, for access to counsel and to ensure the segregation of different categories of prisoners are inadequate. Australian laws on the powers of the police, the rights of an accused person and the state of the penal system generally are unsatisfactory. Our privacy laws are vague and ineffective. There are few effective constraints on the gathering of information, or its disclosure, or surveillance, against unwanted publicity by government, the media or commercial organisations".[8] Murphy also passed important legislation substantially abolishing appeals to the Privy Council, removing censorship, providing freedom of access to government information, reforming corporations and trade practices law, protecting the environment, abolishing the death penalty and outlawing racial and other discrimination. He established a systematic legal aid service for all courts, set up the Australian Law Reform Commission (and appointed Michael Kirby to be its inaugural chairman), the Australian Institute of Criminology and took the French Government to the International Court of Justice (ICJ) to protest against its nuclear tests in the Pacific.[9] The French government conducted forty one atmospheric nuclear tests at Mururoa after 1966, formally ceasing atmospheric nuclear testing in 1974 as a result of public pressure facilitated by Murphy's ICJ case.[10]
In February 1975, Whitlam appointed Murphy to a vacancy on the High Court of Australia. He was the first serving Labor politician appointed to the Court since Dr H.V. Evatt in 1931 and the appointment was bitterly criticised. He resigned from the Senate on 9 February 1975 to take up the appointment.[11] Murphy was the last High Court justice to have served as a Member of Parliament, and the last politician appointed to the High Court.
Murphy was one of only eight justices of the High Court to have served in the Parliament of Australia prior to his appointment to the Court, along with Edmund Barton, Richard O'Connor, Isaac Isaacs, H. B. Higgins, Edward McTiernan, John Latham and Garfield Barwick.
Although it did not become a constitutional requirement until 1977, it had been longstanding convention that a Senate casual vacancy be filled by a person from the same political party. However, on 27 February 1975, the Premier of New South Wales, Tom Lewis, controversially appointed Cleaver Bunton, a person with no political affiliations, to replace Murphy in the Senate, beginning the chain of events which led to the 1975 Australian constitutional crisis. These events in turn laid the groundwork for the 1977 constitutional change that now ensures such an appointment can never be repeated. Soon after his appointment to the bench Murphy visited Justice Menzies' old chambers in Taylor Square which would now be his. Staring at the volumes of British law reports on the shelves behind his desk he said "I want all of these to go". He replaced them with decisions from the US Supreme Court.[12]
Mary Gaudron (later herself a justice of the High Court) stated at Lionel Murphy's Memorial Service at Sydney Town Hall: "There are so many words-reformist, radical, humanitarian, civil libertarian, egalitarian, democrat-they are all abstractions. My words are no better, but for me, and perhaps for those of us who believe in justice based on practical equality, Lionel Murphy was-Lionel Murphy is-the electric light of the Law. He would take an ordinary old abstraction-like equal justice-he would expose it, he would illuminate the abstraction, he would make its form stark, and so he could then say as he did in McInnis' case, these words:[13] "Where the kind of trial a person receives depends on the amount of money he or she has, there is no equal justice."[14]
Goldring concluded that Murphy's approach as a High Court judge was: "marked by a number of features: a strong nationalism conceding and welcoming the existence of States as political (albeit subsidiary) entities; a stalwart belief in democracy and parliamentary rule; a firm support for civil liberties; and overall a 'constitutionalism' in the classical, liberal sense of seeing a constitution as not simply a legal document, but rather as a set of values shared by the community."[15]
Freedom of religion: "Religious freedom is a fundamental theme of our society. That freedom has been asserted by men and women throughout history by resisting the attempts of government, through its legislative, executive or judicial branches, to define or impose beliefs or practices of religion. Whenever the legislature prescribes what religion is, or permits or requires the executive or judiciary to determine what religion is, this poses a threat to religious freedom. Religious discrimination by officials or by courts is unacceptable in a free society ... In the eyes of the law, religions are equal. There is no religious club with a monopoly of State privileges for its members. The policy of the law is “one in, all in."[16] "The faith of members of various religions has inspired concern for others which has often been reflected in humanitarian and charitable works. However, the claim to be the one true faith has resulted in great intolerance and persecution. Because of this, the history of many religions includes a ghastly record of persecution and torture of non-believers. Hundreds of millions of people have been slaughtered in the name of god, love and peace. In the effort to uphold "the one true faith" courts have often been instruments for the repression of blasphemers, heretics and witches.... Most organized religions have been riddled with commercialism, this being an integral part of the drive by their leaders for social authority and power in conformity with the 'iron law of oligarchy'." [17]
Freedom of Speech: "The absence of a constitutional guarantee does not mean that Australia should accept judicial inroads upon freedom of speech which are not found necessary or desirable in other countries. At stake is not merely the freedom of one person; it is the freedom of everyone to comment rightly or wrongly on the decisions of the courts in a way that does not constitute a clear and present danger to the administration of justice." [18]
Trial by Jury: "The Constitution s.80 states: 'The trial on indictment of any offence against any law of the Commonwealth shall be by jury ...' This Court has construed this section to mean that if there be no indictment there must be a jury but there is nothing to compel procedure by indictment…In a famous dissent Dixon and Evatt JJ described this construction as a mockery of the Constitution and considered that anyone charged with any serious offence against the laws of the Commonwealth was entitled to trial by jury (Lowenstein (1938) 59 CLR 556 at 582)” [19]“The jury is a strong antidote to the eletist tendencies of the legal system. It is “the means by which the people participate in the administration of justice” (Jackson v the Queen (1976) 134 CLR 42 at 54). The greatest respect should be given by appeal courts to jury verdicts and any attempt to downgrade the jury to a mere nominal or symbolic role should be restricted." [20]
Preservation of the world's Natural heritage:"Suppose that in the next few decades, because of the continuing rapid depletion of the world’s forests and its effect on the rest of the biosphere, the survival of all living creatures becomes endangered. This is not a fanciful supposition ... Suppose the United Nations were to request all nations to do whatever they could to preserve the existing forests. Let us assume that no obligation was created (because firewood was essential for the immediate survival of people of some nations). I would have no doubt that the Australian Parliament could, under the external affairs power, comply with that request by legislating to prevent the destruction of any forest"[21] The world’s cultural and natural heritage is, of its own nature, part of Australia’s external affairs. It is the heritage of Australians, as part of humanity, as well as the heritage of those where the items happen to be.”[22]
Common heritage of humanity: "The preservation of the world’s heritage must not be looked at in isolation but as part of the co-operation between nations which is calculated to achieve intellectual and moral solidarity of mankind and so reinforce the bonds between people which promote peace and displace those of narrow nationalism and alienation which promote war ... The encouragement of people to think internationally, to regard the culture of their own country as part of world culture, to conceive a physical, spiritual and intellectual world heritage, is important in the endeavour to avoid the destruction of humanity."[23]
Australian Aboriginal History:"The history of the Aboriginal people of Australia since European settlement is that they have been the subject of unprovoked aggression, conquest, pillage, rape, brutalization, attempted genocide and systematic and unsystematic destruction of their culture…a law aimed at the preservation, or the uncovering, of evidence about their history is a special law with respect to the people of this race."[24]
Theory of Class Struggle:"Public statements that the courts are involved in the class struggle may tend to impair confidence in the courts (and amount to criminal contempt on the Dunbabin standard) but do not constitute any clear and present danger to the administration of justice. If all those who advocate that the courts are involved in the class struggle were to be imprisoned for criminal contempt there would not be enough gaols."[25]
Right to Vote: "Section 41 is one of the few guarantees of the rights of persons in the Australian Constitution. It should be given the purposive interpretation which accords with its plain words, with its context of other provisions of unlimited duration, and it contrast with transitional provisions. Constitutions are to be read broadly and not pedantically. Guarantees of personal rights should not be read narrowly. A right to vote is so precious that it should not[be] read out of the constitution by implication. Rather every reasonable presumption and interpretation should be adopted which favours the right of people to participate in the elections of those who represent them."[26]
Privilege Against Self Incrimination:"The privilege against compulsory self incrimination is part of the common law of human rights. It is based on the desire to protect personal freedom and human dignity. These social values justify the impediment the privilege presents to judicial or other investigation…it is society’s acceptance of the inviolability of the human personality ... The history and reasons for the privilege do not justify its extension to artificial persons such as corporations or political entities”[27]“Because the privilege is such an important human right, an intent to exclude or qualify the privilege will not be imputed to a legislature unless the intent is conveyed in unmistakable language." [28]
Legal Professional Privilege:" The privilege is commonly described as legal professional privilege, which is unfortunate, because it suggests that the privilege is that of the members of the legal profession, which it is not. It is the client’s privilege, so that it may be waived by the client, but not by the lawyer…Its rationale is no longer the oath and honour of the lawyer as a gentleman…It is now supported as a “necessary corollary of fundamental, constitutional or human rights."[29]
Acquisition of Property on Just Terms: "... the extinction or limitation of property rights does not amount to acquisition. The transfer of property from one person to another, not the Commonwealth, does not amount to an acquisition within par. xxxi. Unless the Commonwealth gains some property from the State or person, there is no acquisition within the paragraph."[24]
Control of Multinational Corporations: "There may be circumstances where Australia’s relationship with persons or groups who are not nation States, is part of external affairs. The existence of powerful transnational corporations, international trade unions and other groups who can affect Australia, means that Australia’s external affairs, as a matter of practicality, are not confined to relations with other nation states."[21]
In July 1985, during the term of the Hawke Labor government, Murphy was convicted on one of two charges of attempting to pervert the course of justice, over allegations made by Clarrie Briese, the Chief Magistrate of New South Wales, that Murphy had attempted to influence a court case against Sydney lawyer, Morgan Ryan, whom Murphy referred to as "my little mate". A subsequent appeal to the NSW Court of Appeals quashed Murphy's conviction on the grounds that the trial judge had misdirected the jury. A second trial was then held and on the 28th of April 1986 Murphy was found not guilty of attempting to pervert the course of justice. After his acquittal Murphy said: "Thank God for the jury system!"
Attorney-General Lionel Bowen, acting on what he said was his belief that the Justices of the High Court were minded to take some independent action to assess Justice Murphy's fitness to return to the Court, introduced legislation for a Parliamentary Commission of Inquiry, constituted by three retired judges, to examine "whether any conduct of the Honourable Lionel Keith Murphy has been such as to amount, in its opinion, to proved misbehaviour within the meaning of section 72 of the Constitution." (Section 72 specifies that a High Court judge may be removed only by the Governor-General and both houses of Parliament "on the ground of proved misbehaviour or incapacity".) The terms of this inquiry specifically excluded the issues for which Murphy had already been tried and acquitted.
The legislation establishing the Commission of Inquiry received assent in May 1986. In July, Murphy announced that he was dying of untreatable cancer. The establishing legislation was repealed.[30] That repeal legislation vested control of the Commission's documents in the Speaker of the House of Representatives and the President of the Senate. Murphy returned to the Court for one week of sittings. He died on 21 October 1986.
In addition to his work as a legislator, Murphy also took a lifelong interest in science. At Sydney University he combined his Bachelor of Laws degree (hons) with a Bachelor of Science (hons), and Justice Michael Kirby identified Murphy's later scientific reading as a positive influence on his approach to jurisprudence.[31]
The Lionel Murphy Foundation funds postgraduate scholarships for students who "intend to pursue a postgraduate degree in science, law or legal studies".[32]
The "Lionel-Murphy SNR" was a nitrogen-abundant supernova remnant (SNR) N86 in the Large Magellanic Cloud named by astronomers at the Australian National University's Mount Stromlo Observatory in acknowledgement of Murphy's interest in science and because of SNR N86's perceived resemblance to a Canberra Times cartoonist's depiction of his large nose (prior to surgery).[33] A supernova remnant (SNR) results from the gigantic explosion of a star, the resulting supernova expelling much or all of the stellar material with velocities as much as 1% the speed of light and forming a shock wave that can heat the gas up to temperatures as high as 10 million K, forming a plasma.[34] Murphy normally rejected public honours (such as a knighthood), but accepted this because of the symbolic resemblance to his own impact on human rights in Australian law and its lasting significance as a 'signpost' to space travellers.[35] Murphy asked for a large mounted photo of SNR N86 from the scientific paper and placed it in his High Court chambers in the place where the other High Court justices usually hung a portrait of the Queen.[36]
| Political offices | ||
|---|---|---|
| Preceded by Gough Whitlam |
Attorney-General of Australia 1972–1975 |
Succeeded by Kep Enderby |
| Minister for Customs and Excise 1972–1975 |
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| Party political offices | ||
| Preceded by Don Willesee |
Leader of the Australian Labor Party in the Senate 1967–1975 |
Succeeded by Ken Wriedt |
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