Lionel Murphy
Encyclopedia
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.
, 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.
from an early age, he was elected to the Australian Senate
in 1961, and, in 1967, he was elected Opposition Leader in the Senate. 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. 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
.
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. 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.
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
. 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". 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. 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.
. 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. 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.
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: "Where the kind of trial a person receives depends on the amount of money he or she has, there is no equal justice."
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."
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."
"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'."
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."
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)” “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."
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" 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.”
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
."
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."
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."
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."
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”“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."
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."
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."
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."
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. 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.
The Lionel Murphy Foundation funds postgraduate scholarships for students who "intend to pursue a postgraduate degree in science, law or legal studies".
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). 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. 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. 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.
Queen's Counsel
Queen's Counsel , known as King's Counsel during the reign of a male sovereign, are lawyers appointed by letters patent to be one of Her [or His] Majesty's Counsel learned in the law...
(30 August 1922–21 October 1986) was an Australian politician and jurist
Jurist
A jurist or jurisconsult is a professional who studies, develops, applies, or otherwise deals with the law. The term is widely used in American English, but in the United Kingdom and many Commonwealth countries it has only historical and specialist usage...
who served as Attorney-General
Attorney-General of Australia
The Attorney-General of Australia is the first law officer of the Crown, chief law officer of the Commonwealth of Australia and a minister of the Crown. The Attorney-General is usually a member of the Federal Cabinet, but there is no constitutional requirement that this be the case since the...
in the government of Gough Whitlam
Gough Whitlam
Edward Gough Whitlam, AC, QC , known as Gough Whitlam , served as the 21st Prime Minister of Australia. Whitlam led the Australian Labor Party to power at the 1972 election and retained government at the 1974 election, before being dismissed by Governor-General Sir John Kerr at the climax of the...
and as a Justice of the High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
from 1975 until his death.
Personal life
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 SchoolSydney Boys High School
Sydney Boys High School is an academically selective public secondary school for boys, located in the City of Sydney, Sydney, New South Wales, Australia, with 1,180 students, from years 7 to 12...
, and the University of Sydney
University of Sydney
The University of Sydney is a public university located in Sydney, New South Wales. The main campus spreads across the suburbs of Camperdown and Darlington on the southwestern outskirts of the Sydney CBD. Founded in 1850, it is the oldest university in Australia and Oceania...
, where he graduated in science and law, both with honours.
He was admitted to the bar in 1947, and became a QC
Queen's Counsel
Queen's Counsel , known as King's Counsel during the reign of a male sovereign, are lawyers appointed by letters patent to be one of Her [or His] Majesty's Counsel learned in the law...
in 1960. In July 1954, he married Nina Morrow at St John's Church in Darlinghurst
Darlinghurst, New South Wales
Darlinghurst is an inner-city, eastern suburb of Sydney, in the state of New South Wales, Australia. Darlinghurst is located immediately east of the Sydney central business district and Hyde Park, within the local government area of the City of Sydney...
, 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.
Parliamentary career
A member of the Australian Labor PartyAustralian Labor Party
The Australian Labor Party is an Australian political party. It has been the governing party of the Commonwealth of Australia since the 2007 federal election. Julia Gillard is the party's federal parliamentary leader and Prime Minister of Australia...
from an early age, he was elected to the Australian Senate
Australian Senate
The Senate is the upper house of the bicameral Parliament of Australia, the lower house being the House of Representatives. Senators are popularly elected under a system of proportional representation. Senators are elected for a term that is usually six years; after a double dissolution, however,...
in 1961, and, in 1967, he was elected Opposition Leader in the Senate. 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. In 1969 Labor Leader Gough Whitlam
Gough Whitlam
Edward Gough Whitlam, AC, QC , known as Gough Whitlam , served as the 21st Prime Minister of Australia. Whitlam led the Australian Labor Party to power at the 1972 election and retained government at the 1974 election, before being dismissed by Governor-General Sir John Kerr at the climax of the...
appointed him Shadow Attorney-General, and when Labor won the 1972 election he became Attorney-General
Attorney-General of Australia
The Attorney-General of Australia is the first law officer of the Crown, chief law officer of the Commonwealth of Australia and a minister of the Crown. The Attorney-General is usually a member of the Federal Cabinet, but there is no constitutional requirement that this be the case since the...
and Minister for Customs and Excise
Minister for Home Affairs (Australia)
The Australian Minister for Home Affairs has been Brendan O'Connor since 6 June 2009. The Home Affairs portfolio brings together agencies such as the Australian Customs Service , the Australian Federal Police and the Australian Security Intelligence Organisation, which were previously the...
.
Australian Security Intelligence Organisation
The Australian Security Intelligence Organisation is Australia's national security service, which is responsible for the protection of the country and its citizens from espionage, sabotage, acts of foreign interference, politically-motivated violence, attacks on the Australian defence system, and...
(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
Džemal Bijedic
Džemal Bijedić was a Bosniak Communist politician from Bosnia and Herzegovina, and the prime minister of Yugoslavia from 1971 until his death.- Early life :...
. 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. 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
Communist Party of Australia
The Communist Party of Australia was founded in 1920 and dissolved in 1991; it was succeeded by the Socialist Party of Australia, which then renamed itself, becoming the current Communist Party of Australia. The CPA achieved its greatest political strength in the 1940s and faced an attempted...
unionists and people such as CPA leader and peace movement activist Mavis Robertson... When he told Whitlam they both laughed.
Murphy's most important legislative achievement was the Family Law Act 1975
Family Law Act 1975
The Australian Family Law Act 1975, sometimes referred to as the FLA by legal practitioners, is an Act of the Australian Parliament. It is one of four separate Acts that provide the framework for family law in Australia...
, which completely overhauled Australia's law on divorce and other family law
Family law
Family law is an area of the law that deals with family-related issues and domestic relations including:*the nature of marriage, civil unions, and domestic partnerships;...
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
Family Court of Australia
The Family Court of Australia is a superior Australian federal court of record which deals with family law matters. Together with the Federal Magistrates Court, it covers family law matters in all states and territories of Australia except Western Australia...
. 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". Murphy also passed important legislation substantially abolishing appeals to the Privy Council
Privy council
A privy council is a body that advises the head of state of a nation, typically, but not always, in the context of a monarchic government. The word "privy" means "private" or "secret"; thus, a privy council was originally a committee of the monarch's closest advisors to give confidential advice on...
, removing censorship
Censorship
thumb|[[Book burning]] following the [[1973 Chilean coup d'état|1973 coup]] that installed the [[Military government of Chile |Pinochet regime]] in Chile...
, 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
Discrimination
Discrimination is the prejudicial treatment of an individual based on their membership in a certain group or category. It involves the actual behaviors towards groups such as excluding or restricting members of one group from opportunities that are available to another group. The term began to be...
. He established a systematic legal aid
Legal aid
Legal aid is the provision of assistance to people otherwise unable to afford legal representation and access to the court system. Legal aid is regarded as central in providing access to justice by ensuring equality before the law, the right to counsel and the right to a fair trial.A number of...
service for all courts, set up the Australian Law Reform Commission
Australian Law Reform Commission
The Australian Law Reform Commission is an Australian independent statutory body established to conduct reviews into the law of Australia and advocate options for law reform...
(and appointed Michael Kirby
Michael Kirby
Michael Donald Kirby AC, CMG, is an Australian retired judge, jurist, and academic who is a former Justice of the High Court of Australia, serving from 1996 to 2009.-Biography:Michael Kirby attended Fort Street High School in Sydney...
to be its inaugural chairman), the Australian Institute of Criminology
Australian Institute of Criminology
The Australian Institute of Criminology is Australia's national research and knowledge centre on crime and justice. The Institute seeks to promote justice and reduce crime by undertaking and communicating evidence-based research to inform policy and practice.The functions of the AIC include...
and took the French Government to the International Court of Justice
International Court of Justice
The International Court of Justice is the primary judicial organ of the United Nations. It is based in the Peace Palace in The Hague, Netherlands...
(ICJ) to protest against its nuclear tests in the Pacific. 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.
Judicial career
In February 1975, Whitlam appointed Murphy to a vacancy on the High Court of AustraliaHigh Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
. 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. 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
Parliament of Australia
The Parliament of Australia, also known as the Commonwealth Parliament or Federal Parliament, is the legislative branch of the government of Australia. It is bicameral, largely modelled in the Westminster tradition, but with some influences from the United States Congress...
prior to his appointment to the Court, along with Edmund Barton
Edmund Barton
Sir Edmund Barton, GCMG, KC , Australian politician and judge, was the first Prime Minister of Australia and a founding justice of the High Court of Australia....
, Richard O'Connor, Isaac Isaacs
Isaac Isaacs
Sir Isaac Alfred Isaacs GCB GCMG KC was an Australian judge and politician, was the third Chief Justice of Australia, ninth Governor-General of Australia and the first born in Australia to occupy that post. He is the only person ever to have held both positions of Chief Justice of Australia and...
, H. B. Higgins
H. B. Higgins
Henry Bournes Higgins , Australian politician and judge, always known in his lifetime as H. B. Higgins, was a highly influential figure in Australian politics and law.-Career:...
, Edward McTiernan
Edward McTiernan
Sir Edward Aloysius McTiernan, KBE , was an Australian jurist, lawyer and politician. He served as an Australian Labor Party member of both the New South Wales Legislative Assembly and federal House of Representatives before being appointed to the High Court of Australia in 1930...
, John Latham and Garfield Barwick
Garfield Barwick
Sir Garfield Edward John Barwick, was the Attorney-General of Australia , Minister for External Affairs and the seventh and longest serving Chief Justice of Australia...
.
Although it did not become a constitutional requirement until 1977, it had been longstanding convention that a Senate casual vacancy
Casual vacancy
In the Parliament of Australia, a casual vacancy is caused when a member of either house :* dies* resigns mid-term * is expelled from Parliament and their seat is declared vacant, or...
be filled by a person from the same political party. However, on 27 February 1975, the Premier of New South Wales, Tom Lewis
Tom Lewis (Australian politician)
Thomas Lancelot Lewis AO is a former New South Wales politician, Premier of New South Wales and Minister of the Crown in the cabinets of Sir Robert Askin and Sir Eric Willis. He was made the Premier of New South Wales following Askin's retirement from politics and held it until he was replaced by...
, controversially appointed Cleaver Bunton
Cleaver Bunton
Cleaver Ernest Bunton AO OBE was a long serving Mayor of Albury, New South Wales, Australia, who came to national prominence in 1975 when he was controversially appointed to the Senate.-Early life:...
, 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.
Mary Gaudron
Mary Gaudron
Mary Genevieve Gaudron, AC, QC , Australian lawyer and judge, was the first female Justice of the High Court of Australia.-Youth:...
(later herself a justice of the High Court) stated at Lionel Murphy's Memorial Service at Sydney Town Hall
Sydney Town Hall
The Sydney Town Hall is a landmark sandstone building located in the heart of Sydney. It stands opposite the Queen Victoria Building and alongside St Andrew's Cathedral...
: "There are so many words-reformist, radical
Political radicalism
The term political radicalism denotes political principles focused on altering social structures through revolutionary means and changing value systems in fundamental ways...
, humanitarian, civil libertarian, egalitarian, democrat
Democracy
Democracy is generally defined as a form of government in which all adult citizens have an equal say in the decisions that affect their lives. Ideally, this includes equal participation in the proposal, development and passage of legislation into law...
-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: "Where the kind of trial a person receives depends on the amount of money he or she has, there is no equal justice."
Goldring concluded that Murphy's approach as a High Court judge was: "marked by a number of features: a strong nationalism
Nationalism
Nationalism is a political ideology that involves a strong identification of a group of individuals with a political entity defined in national terms, i.e. a nation. In the 'modernist' image of the nation, it is nationalism that creates national identity. There are various definitions for what...
conceding and welcoming the existence of States as political (albeit subsidiary) entities; a stalwart belief in democracy
Democracy
Democracy is generally defined as a form of government in which all adult citizens have an equal say in the decisions that affect their lives. Ideally, this includes equal participation in the proposal, development and passage of legislation into law...
and parliamentary rule; a firm support for civil liberties
Civil liberties
Civil liberties are rights and freedoms that provide an individual specific rights such as the freedom from slavery and forced labour, freedom from torture and death, the right to liberty and security, right to a fair trial, the right to defend one's self, the right to own and bear arms, the right...
; and overall a 'constitutionalism
Constitutionalism
Constitutionalism has a variety of meanings. Most generally, it is "a complex of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law"....
' 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."
Key judicial quotes
Free society
In a theoretical free society, all individuals act voluntarily. Individuals in a free society find it safe to be unpopular. This can be elaborated in terms of freedom of speech - if people have a right to express their views without fear of arrest, imprisonment, or physical harm.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."
"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
Commercialism
Commercialism, in its original meaning, is the practices, methods, aims, and spirit of commerce or business. Today, however, it primarily refers to the tendency within open-market capitalism to turn everything into objects, images, and services sold for the purpose of generating profit...
, this being an integral part of the drive by their leaders for social authority and power in conformity with the 'iron law of oligarchy'."
Freedom of Speech: "The absence of a constitutional guarantee does not mean that Australia should accept judicial inroads upon freedom of speech
Freedom of speech
Freedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...
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."
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
Trial by Jury
Trial by Jury is a comic opera in one act, with music by Arthur Sullivan and libretto by W. S. Gilbert. It was first produced on 25 March 1875, at London's Royalty Theatre, where it initially ran for 131 performances and was considered a hit, receiving critical praise and outrunning its...
(Lowenstein (1938) 59 CLR 556 at 582)” “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."
Natural heritage
Natural heritage is the legacy of natural objects and intangible attributes encompassing the countryside and natural environment, including flora and fauna, scientifically known as biodiversity, and geology and landforms ....
:"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
Biosphere
The biosphere is the global sum of all ecosystems. It can also be called the zone of life on Earth, a closed and self-regulating system...
, 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" 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.”
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
World population
The world population is the total number of living humans on the planet Earth. As of today, it is estimated to be billion by the United States Census Bureau...
."
Australian Aboriginal History:"The history of the Aboriginal
Indigenous Australians
Indigenous Australians are the original inhabitants of the Australian continent and nearby islands. The Aboriginal Indigenous Australians migrated from the Indian continent around 75,000 to 100,000 years ago....
people of Australia since European settlement is that they have been the subject of unprovoked aggression, conquest, pillage, rape, brutalization, attempted genocide
Genocide
Genocide is defined as "the deliberate and systematic destruction, in whole or in part, of an ethnic, racial, religious, or national group", though what constitutes enough of a "part" to qualify as genocide has been subject to much debate by legal scholars...
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."
Theory of Class Struggle:"Public statements that the courts are involved in the class struggle
Class struggle
Class struggle is the active expression of a class conflict looked at from any kind of socialist perspective. Karl Marx and Friedrich Engels wrote "The [written] history of all hitherto existing society is the history of class struggle"....
may tend to impair confidence in the courts (and amount to criminal contempt
Contempt
Contempt is an intensely negative emotion regarding a person or group of people as inferior, base, or worthless—it is similar to scorn. It is also used when people are being sarcastic. Contempt is also defined as the state of being despised or dishonored; disgrace, and an open disrespect or willful...
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."
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."
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”“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."
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."
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."
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."
Court cases and controversy
In July 1985, during the term of the HawkeBob Hawke
Robert James Lee "Bob" Hawke AC GCL was the 23rd Prime Minister of Australia from March 1983 to December 1991 and therefore longest serving Australian Labor Party Prime Minister....
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
New South Wales
New South Wales is a state of :Australia, located in the east of the country. It is bordered by Queensland, Victoria and South Australia to the north, south and west respectively. To the east, the state is bordered by the Tasman Sea, which forms part of the Pacific Ocean. 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
Lionel Bowen
Lionel Frost Bowen AC , Australian politician, was a senior Labor Party figure, serving in the ministries of Gough Whitlam and Bob Hawke...
, 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
Constitution of Australia
The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...
." (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. 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.
Other interests and contributions
The Lionel Murphy Foundation funds postgraduate scholarships for students who "intend to pursue a postgraduate degree in science, law or legal studies".
The "Lionel-Murphy SNR" was a nitrogen
Nitrogen
Nitrogen is a chemical element that has the symbol N, atomic number of 7 and atomic mass 14.00674 u. Elemental nitrogen is a colorless, odorless, tasteless, and mostly inert diatomic gas at standard conditions, constituting 78.08% by volume of Earth's atmosphere...
-abundant supernova remnant
Supernova remnant
A supernova remnant is the structure resulting from the explosion of a star in a supernova. The supernova remnant is bounded by an expanding shock wave, and consists of ejected material expanding from the explosion, and the interstellar material it sweeps up and shocks along the way.There are two...
(SNR) N86 in the Large Magellanic Cloud
Large Magellanic Cloud
The Large Magellanic Cloud is a nearby irregular galaxy, and is a satellite of the Milky Way. At a distance of slightly less than 50 kiloparsecs , the LMC is the third closest galaxy to the Milky Way, with the Sagittarius Dwarf Spheroidal and Canis Major Dwarf Galaxy lying closer to the center...
named by astronomers at the Australian National University
Australian National University
The Australian National University is a teaching and research university located in the Australian capital, Canberra.As of 2009, the ANU employs 3,945 administrative staff who teach approximately 10,000 undergraduates, and 7,500 postgraduate students...
's Mount Stromlo Observatory
Mount Stromlo Observatory
Mount Stromlo Observatory located just outside of Canberra, Australia, is part of the Research School of Astronomy and Astrophysics at the Australian National University .-History:...
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). A supernova remnant (SNR) results from the gigantic explosion of a star, the resulting supernova
Supernova
A supernova is a stellar explosion that is more energetic than a nova. It is pronounced with the plural supernovae or supernovas. Supernovae are extremely luminous and cause a burst of radiation that often briefly outshines an entire galaxy, before fading from view over several weeks or months...
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. 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. 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.
External links
- Lionel Murphy Foundation
- Mr Neal is Entitled to be an Agitator 58 min documentary film about the life of Lionel Murphy. Dir: Daryl Dellora. Australian Human Rights Award.