Lionel Murphy

Lionel Keith Murphy, QC (30 August 1922 in Kensington, New South Wales – 21 October 1986 in Canberra, Australian Capital Territory) 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.

Murphy was the youngest of five sons, and sixth of seven children of William (b. Tipperary, Ireland) and Lily Murphy (née Murphy). He was born and grew up in Sydney. Though the Murphy household was Irish Catholic, albeit estranged from the Church, Murphy became a humanist and rationalist.

He was educated at government schools in Sydney's south-eastern suburbs, including Kensington Public School in Kensington, where he was dux after repeating his final year in 1935, and Sydney Boys High School from 1936–40 in the nearby Surry Hills, graduating with A levels in English, Mathematics, and Chemistry and B levels in Physics and French. After completing his secondary education, in 1941, Murphy matriculated to the University of Sydney, though he had not been successful in gaining a university scholarship awarded to the top 100 in the state. In 1945, after initially ordinary scholastic performance and a brief period of consideration of transferring to study a Bachelor of Arts to major in psychology in the Faculty of Arts, Murphy excelled in his final year, graduating from the School of Chemistry, Faculty of Science with a Bachelor of Science with Honours in Organic Chemistry. In 1943, he had commenced working in the chemistry industry, thereby coming under the authority of the wartime Manpower Directorate.

In 1945, Murphy commenced studying law at the Sydney Law School of the University of Sydney and, in 1949, graduated with a Bachelor of Laws with Honours. While at the University of Sydney, during both his science and law degrees, Murphy was politically and socially active and was involved in the Students' Chemistry Society, the Junior Science Association, and the Science Association. In 1944, in his third year of his science degree, Murphy was elected to the Students' Representative Council but was dismissed two hours after his election victory, on a "constitutional technicality". This event is said to have cemented his interest in politics and law, and he commenced participating in the university's debating society and its monthly debates the following year.

Unusually, two years prior to his graduating with and possessing a law degree, Murphy passed the Barristers' Admission Board examination and was admitted to the New South Wales Bar Association in 1947. After graduating from the University of Sydney Faculty of Law, Murphy took up residence in University Chambers, Phillip Street and then moved to the fourth floor of Wentworth Chambers and rapidly established himself as a labour/industrial lawyer, representing left-wing unionists.

In 1960, he took silk.

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. In the Senate pre-selection convention in the Sydney Trades Hall in April 1960, with backing from Ray Gietzelt (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.

Attorney-Generalship

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 Džemal Bijedić. 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". When they arrived, Murphy found they were of several Communist Party unionists and people such as CPA leader and peace movement activist Mavis Robertson… When he told Whitlam they both laughed.

Murphy was highly involved in the behind-the-scenes machinations and parliamentary debates around the appointment of DLP Senator Vince Gair as Ambassador to Ireland in 1974 (see Gair Affair), which preceded Whitlam's calling of a double dissolution election for May 1974.

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.

Murphy used an existing provision of the Marriage Act 1961 (Section 39C) to establish the Civil Marriage Celebrant program. Using this provision he appointed about a hundred Civil Celebrants and urged them to provide marriage ceremonies of dignity, meaning and substance for non-church people. It was an initiative opposed by the Australian Labor Party, the public servants of his department and his personal staff. It was an extremely radical move at the time. The Civil Marriage Celebrant program, however, proved to be an outstanding success, such that in 2016 75% of marrying couples in Australia chose a civil marriage celebrant to officiate at their wedding. The program broadened into the challenge of secular funerals of substance, namings and other ceremonies which celebrated the landmarks in human existence. Murphy took an enthusiastic interest in this program - sending telegrams of congratulation to the first several hundred couples married by civil celebrants and would often unexpectedly turn up uninvited to weddings performed by celebrants to delight in his achievement.

Atmospheric nuclear explosion in the Pacific. Murphy took the French Government to the International Court of Justice over nuclear tests at Mururoa.

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 introduced 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.

Furthermore, Murphy 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 41 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.

High Court of Australia. Murphy served as a High Court justice from 1975 to 1986.

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. Murphy was the last High Court justice to have served as a Member of Parliament, and the last politician appointed to the High Court. Additionally, 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 long-standing 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 Supreme Court of the United States.

Key judicial quotes

• Australian Aboriginal history:

• Freedom of religion:

• Freedom of speech:

• Trial by jury:

Gordon Dam in South West Tasmania World Heritage Area.

Preservation of the world's natural heritage:

• Constitutional prohibition of slavery:

• Constitutional prohibition on civil conscription for medical or dental services:

• Common heritage of humanity:

• Theory of class struggle:

• Right to vote:

• Privilege against self-incrimination:

• Legal professional privilege:

• Acquisition of property on just terms:

• Control of multinational corporations:

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 28 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 terminal cancer, and 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.

Murphy had a distinctive profile and a large nose that was broken in a 1950 car accident in England and left largely untreated.

In July 1954, he married Russian-born Nina Morrow (née Vishegorodsky; known as Svidersky), a comptometrist, 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), a model and television quiz-show compère who had been born in German-occupied Poland. They had two sons, Cameron and Blake. Cameron was President of the New South Wales Council for Civil Liberties from 1999 to 2013. Ingrid died in October 2007.

Large Magellanic Cloud, containing SNR N86.

In addition to his work as a legislator, Murphy also took a lifelong interest in science. Having first studied science, then law, at the University of Sydney, Justice Michael Kirby identified Murphy's later scientific reading as "a positive influence on his approach to jurisprudence".

"Lionel Murphy SNR"

N86 is a nitrogen-abundant supernova remnant (SNR) N86 in the Large Magellanic Cloud. It was dubbed the "Lionel-Murphy SNR" 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), and a picture was hung in his office.

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.

Lionel Murphy Foundation

The Lionel Murphy Foundation was co-founded by Gough Whitlam, Neville Wran, and Ray Gietzelt in 1986. It funds postgraduate scholarships for students who "intend to pursue a postgraduate degree in science, law or legal studies, or other appropriate discipline" with a commitment to social justice.

Judicial philosophy and legacy

Mary Gaudron, who herself would become 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".

Legal academic Jack 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".