Michael Kirby



          In 1980 the building of the High Court in Canberra was opened by the Queen.  Sir Garfield Barwick, Chief Justice, saw a great dream realised.  At last, the Court, the "keystone of the federal arch" had its own permanent seat in the national capital.  Moreover, it was in the constitutional triangle in a place where, in harmony with the Constitution, it would keep both the Parliament and the Executive Government of the Commonwealth in its sights.  Although Lionel Murphy disagreed profoundly in his social philosophy from Barwick, they had more things in common than either would have liked to acknowledge.  They came from families of modest means.  Each grew up in Sydney.  Each received his education in the selective high schools of the public school system.  Each was a self-made man.  Each had a gift of simple expression.  Each was a lawyer politician who came directly to the Court from the Federal Ministry.  Each supported the move of the Court to Canberra.  Each saw its symbolic importance.  Murphy, I suspect, saw more clearly than Barwick the impact which the move would have upon the Court's institutional psyche.


          But there the similarities end.  Barwick was the supreme individualist, with a profound faith in the capacity of each Australian to reach his or her full potential if only the interference of government and the State could be held at a minimum.  Murphy was a communitarian.  His was an ideal of a society in which the strong shoulder burdens with the weak.  In which minorities are protected and encouraged.  In which the shibboleths and false pride of the legal profession are kept in check.  In which the populist passion that occasionally surface in the States is kept under the control of a strong national government and Parliament.  And in which the Constitution of the wholly dependant Australian nation marches in step with the needs of the time. 


          I was there on the day of that Opening.  The Chief Judges of every Australian Court were there in full robes, accompanied by many senior judges from overseas courts who came to witness the event.  The newspapers were full of speculation as to whether Lionel Murphy, iconoclast, would carry into the ceremony his disdain for the traditional long bottomed horsehair which, on ceremonial occasions such as this, judges of his rank, like those of England before, conventionally wore.  Before the ceremony he telephoned me and talked about what he should do.  "Astonish them, Lionel.  Wear your wig.  It is, after all, a ceremony.  People will have ceremonial expectations".  He seemed most sceptical about this advice.  But when he came forth, there he was, looking decidedly uncomfortable, in full bottom wig.  The Queen, in a simple yellow dress somehow seemed the only person on the platform from the late twentieth century. 


          At the time of that ceremony, Lionel Murphy was the fifth ranking Justice of the High Court.  Just as I am now.  I now sit in the seat which he occupied twenty years ago.  Occasionally, during a dull interval in argument, I may turn the pages of the Commonwealth Law Reports to the frontispiece.  There I find our predecessors, amongst them Lionel Murphy.  There also are the speeches on great occasions such as the opening of the building in 1980.  They provide a sometimes welcome diversion from tedium that I am sure Lionel also appreciated.  If by chance the case involved a precedent in Volume 160, the opening pages are bordered in black.  Once again, I embark on the reading of the tribute of the sitting of the Full High Court on 5 November 1986, given by Chief Justice Gibbs for the life of Lionel Murphy who had died to weeks earlier.  Sometimes, rarely, those tributes are warm and personal.  Such was the case when Chief Justice Dixon paid his farewell tribute to Sir Wilfred Fullagar, who had read with him as a young barrister.  Sir Harry Gibbs, utterly different from Murphy and also from Barwick, had gone through a painful time in the years that Murphy, and thus the Court, were under siege in the latter's horrible ordeal.  But the correct things were said.  The life of remarkable achievements was recorded.  The tribute was in no way perfunctory.  It was the voice of a judge of conservative and orthodox views describing a judge of an utterly different philosophy:


"He said soon after his appointment, that his desire was to develop the law so far as possible to bring about a more democratic and equal society and his judgments reflect this wish.


It cannot be denied - and he would not have wished to deny - that he was at times the subject of controversy and that his judicial method was one which did not command universal assent.  However, the value of the contribution made by a judge to the law and the extent of his influence upon it cannot well be assessed by his contemporaries;  judgment on these questions must be left to history".


          The histories and other commentaries on the life of Lionel Murphy continue to flow.  He has attracted in the fifteen years since his death many more books of record and analysis than any of the Justices before or since.  Even Barwick has so far secured only two - one written by David Marr which the subject hated and Radical Tory which he co-authored shortly before his death.  We still await a definitive biography of the great Chief Justice Dixon.  Other important judges with interesting and varied lives, like Sir Victory Windeyer, have passed without the record they merited.  Yet Lionel Murphy continues to exert a fascination.  He calls forth books that tell of his colourful life and large achievements.  Jenny Hocking has done this with devotion.  The publication of this paperback edition of her work is surely timely.  It takes the life of a truly remarkable Australian into a new century in which, it seems to me, his spirit is probably more comfortable than the one in which he lived and died.


          What is the reason that Lionel Murphy's life has attracted books such as this whereas other judges - some of them also politicians - more conventional and honoured in the legal system are now faded memories, their spirits occasionally exorcised from the pages of the law books to be read and then quietly put to one side again.  Requisite in parche. 


          Part of the reason, undoubtedly, lies in the fact that Murphy was no conventional judge.  His was not the ordinary path - private school eduction, university college, successful practice at the Bar in trusts and corporations law, professional association, a distinguished club or two and then the Bench.  For the public, such judges, worthy and distinguished though they be, carry little human interest.  Most such judges would regard that fact as a badge of honour.  Not Lionel.


          It cannot be simply because he served in the three branches of government.  Many who had gone before him (although fewer since) had done this including Griffith, Isaacs, Latham and Barwick, Chief Justices, and Barton, O'Connor, Higgins, Evatt and McTiernan, Justices. 


          No Justice ever suffered, as he did, the public calumny of opponents and critics.  In one of the review of this book, written by Norman Abjorensen, the reviewer expressed the opinion that:


"History has shown that it takes a Lionel Murphy to flush out the particular vindictiveness lurking the outwardly calm Australian psyche;  stand on the toes of vested interests and the wrath uncoils with lethal intent.  It is doubtful whether any public figure in Australia, Evatt included, has had to endure so much calumny as Murphy - the whispering campaigns (often officially inspired), the smears, the innuendos:  it was intensified by his perceived unorthodoxy, even within the Labor Party".


          Justice Callinan and I have suffered, in different ways, from similar passions.  But Murphy's ordeal was unique.  It was prolonged.  It was public.  It was unrelenting.  It involved the unprecedented spectacle of public criminal trials of a judge of the highest court.  It submitted him to unendurable stress over a decade.  At the end of that time, he died.  No one who, even at a distance, walked that journey with him will ever accept that the cancer to which he finally succumbed was unconnected with the stress of those days. 


          Yet as this history shows, in the big picture of his life and achievements, the horrors of the final years are nothing when compared with the joys and optimism of his bustling life of achievement that came before that time.  Lionel Murphy was a big figure on the stage of public life.  He pursued with energy, imagination and determination a vision of Australian society which was not warped and gnarled and inward looking.  It was one which reached out to everyone, particularly the disadvantaged.  One can differ with particular things that he did.  One can be critical about particular legal decisions that he wrote as a judge.  One can question occasional motivations.  One can even suggest the possibility that a view was taken of the law that was sometimes wrong and can now be seen to have been wrong.  But no one can doubt that Lionel Murphy made a difference.


          For some there will never be anything in Lionel Murphy's life except his "raid" on the ASIO office in Melbourne, his advice to the Whitlam Government on the "Loans Affair" and the trials and inquiries of his last years.  The value of this book is that it explores the subject's entire life.  It puts the three events mentioned in the context of a broader survey about the life and times of a man, politician, minister and High Court judge.  Some critics have seen it as more favourable to Lionel Murphy than they think he deserves.  One, commenting on this book, suggested that its subject was still "in the dock of history".  But a fair reading of Lionel Murphy's life will, I think, convince most impartial readers that he sits in no dock as he waits history's assessment.  Of the crimes charged he was acquitted.  Legally, he stands innocent.  Yet for his critics that will never be enough.  Is it beyond our sense of balance and proportion, in measuring the achievements of such a notable, restless, creative man to reach into an objective assessment of his works, aided by a biographer whose survey spans his entire life?


          In all probability, it is still too early for a wholly objective biography of Murphy to be written.  After all, it is only fifteen years since that vivid personality lived and breathed and worked and kept on creating, literally until, on his last day, he attended the Court to deliver his last judgments.  On his death, Senator Brian Harradine, no great admirer of Murphy's politics, remarked in the Senate: 


"Standing here, I cannot logically conceive, just because his body was riddled with cancer and he has died, that his mind is no longer active, that he is no longer in existence.  After all , his mind gave searching consideration to such non-material and abstract concepts as justice".


          I agree with that assessment.  The mind of a public figure such as Lionel Murphy lives on, in a sense, in the works that the mind has created.  In his case, it lives on in his speeches in the Parliament which, from the start, revealed a man of logic and science with an optimism about his fellow citizens and their capacity to improve themselves and their society by rational government stimulating self-interest.  Lionel Murphy always saw himself as a servant of rationality.  His spirit lives on in the Senate Committee System which, sometimes to the later annoyance of the political party he led in that place in opposition, helped to create a useful check on the House of Representatives and the Executive Government which must answer to that House, whenever they threaten to become over-mighty.  His spirit lives on in the legislation which he piloted through the party and the Parliament.  Sir Harry Gibbs listed but a few:  the Family Law Act, the Trade Practices Act, the Racial Discrimination Act, the Environment Protection (Impact of Proposals) Act, the Administrative Appeals Tribunal Act, which he conceived.  In addition, it was Murphy who introduced the statutes that abolished the death penalty for federal offences, established the Australian Law Reform Commission.  Abolished appeals from the High Court to the Privy Council.  Established the Legal Aid Office.  The list is astonishing.  Few of his predecessors or successors come close to such a long list of lasting achievements.  Nor are they achievements in the areas of lawyers’ law.  Most of them deal with the areas of law that meant most to Lionel Murphy:  the law as it affects ordinary Australians.


          In the High Court, when he was sitting in the seat I now occupy, Lionel Murphy's views were commonly regarded as heterodox, even heresy.  His technique of opinion-writing was viewed as most unorthodox.  His opinions were not sprinkled with countless references to English precedents from the six centuries that preceded the reception of the English common and statute law into the Australian colonies.  Instead, Lionel Murphy, feeling himself unencumbered by this baggage, went directly to the concept or idea which was at stake.  He wrote in language which ordinary citizens could more readily understand.  I was there when he cleared out his Chambers in the old High Court building in Darlinghurst the English report series containing the cases from England in feudal times.  In their place, he proudly displayed the United States reports, recording the opinions of the most powerful Supreme Court of the English-speaking world.  His willingness to reach into those opinions, particularly in constitutional cases, and his inclination to write his reasons in a style similar to that used in the United States, marked him out as unusual.  Yet, today, the use of English precedent in Australian courts has declined enormously.  Now, it is not at all unusual for opinions of judges in North America and other countries of the common law to be cited for the assistance they give in the exposition and development of Australian law.  Murphy's role in freeing the legal mind from the blinkers of adherence to English authority will be recognised by history.  To him it was more than a matter of Australian self-respect.  It was not even just nationalism - for as his foray into the World Court demonstrated, Lionel Murphy was first and foremost an internationalist.  Instead, it was the basic matter of legal accuracy.  The Australian people having adopted their federal Constitution and accepting it for their governance, it was no business of a foreign power - even one as friendly as the United Kingdom - to be intermeddling in Australian law.  Such interference was no more palatable because it came through the judicial branch of government than it would be if it came through the legislature or the executive.  At the time this seemed to some profoundly threatening to the foundations of the Australian legal system.  Yet in Cook v Cook, two volumes after that in which Lionel Murphy's obituary appears, the official reports of the High Court of Australia contain the strong opinion of the judges:


"The precedents of other legal systems are not binding and are useful only to the degree of the persuasiveness of their reasoning".


          Lionel Murphy often told me that he left a copy of the Constitution beside his bed at night, lest sleeplessness should strike him and he should have yet another chance to look into the language of the Constitution to discover its implications.  To him, finding implications in the language and structure of a document such as the Constitution was elementary lawyering.  At the time he first expressed these views they were dismissed as "quaint".  Yet within little more than a decade other judges were peering into the Constitution, doubtless at more congenial hours, and finding implications of free speech or explicit promises of equal treatment throughout the nation and jury trial which earlier decisions of the Court had denied. 


          In an earlier review of Lionel Murphy's influence on the High Court, I expressed an opinion, which I still hold, that more than his impact on particular legal subjects (of which there is much) his ultimate judicial legacy lies in his contribution to breaking the spell of unquestioning acceptance of old rules where social circumstances and community attitudes have changed so much as to make those rules inappropriate and inapplicable.  There are many illustrations of this shift.  They include the strong principles laid down by the High Court with respect to so-called "police verbals".  The unanimous abolition of the common law doctrine that a husband could not in law rape his wife.  The acceptance of his notion that the fair trial of a person facing a serious criminal charge who cannot afford or secure legal representation is so important that the denial of such representation may invalidate such a trial and any conviction recorded in it.  Although nothing that Lionel Murphy wrote specifically addressed the issue of land rights for Australia's indigenous peoples, it is hard for me to conceive of the possibility that the second Mabo decision could have occurred if the culture of the Court had been the same as it was when Murphy arrived.  In the midst of the denials of his impact, which still represent (in all probability) the majority view amongst lawyers in Australia, I feel there is an unwillingness to recognise the subtle and interstitial ways that unorthodox concepts and approach percolate into the mainstream of the common law.  In the great canvas of legal reasoning, bold ideas simply expressed may, in the long run, have a greater influence than thousands of pages of closely reasoned text, peppered by a million footnotes.


          There are many things in this book, uncovered by Jenny Hocking, which help to settle the rumours that swirled about Lionel Murphy in his lifetime.  The false rumour of Jewish ethnicity, for example.  Not that that would have been a burden in the Federal Seat of Philip where he sought to win endorsement for the Labor Party.  The book brings out the impact on Lionel Murphy's thinking of his early training in science.  At the time this was most unusual.  It led to an open-mindedness and a willing to test old and new propositions in the law as is commonplace in science.  The book demonstrates that Murphy was no revolutionary.  On the contrary, his work in each of the branches of Government established by the Constitution demonstrated a commitment (like ultimately wearing the full bottomed wig to the ceremony marking the opening of the new building in Canberra) to working within the legal system.  But working with commitment to make sure that it delivered a fairer society to those who come in contact with it.


          Recorded in these pages are the many friendships which Lionel Murphy made across political lines.  John Gorton and Andrew Peacock were just two of many coalition politicians who embraced Murphy's friendship, whilst often criticising his goals and castigating his willingness to adopt unorthodox methods.  Most people who met Lionel Murphy in social circumstances, were charmed by his wit, his personal humility, his inquisitiveness and his gregariousness.  I never quite understood the warm personal friendship he extended to me.  Deep in our genes, we reflected the different communities of Ireland.  He was sparking, embracing, reaching out, always willing to open a bottle of champagne;  always happy to rush off to a party or a late night talk about philosophy.  I was serious, applied, reserved, methodical.  Sleep was usually more precious to me than champagne.  And yet, friends we became.  I would not be sitting in his seat in the High Court, but for that fact.  Repeatedly, on issue, we differed.  But it mattered not.  Little wonder that they named a supernova after this man.  He was big in his thinking in every way.  I am proud, now, that he counted me as a friend in the dark days of his ordeal and at the end.  Somehow, I think he might be pleased that, despite out differences of approach and technique, I have now even overtaken his record for dissenting opinions in the High Court.  For other reasons, and in different ways, my life has taught me to see the law, as he did, through the eyes of others.  To see that it is sometimes, for all the talk, an instrument of oppression.  And to see that judges and lawyers have moral and legal choices to make so that they leave the law more in harmony with justice by their temporary possession of it.


          Early this year I went to the Kensington Public School for its centenary.  I went with my father who, as a boy, had spent a few years in the 1920s in the little classroom which can still be seen.  Less than a decade after him, Lionel Murphy sat in that classroom.  Looked at the faces of the children celebrating the centenary.  They portrayed the distinctive multi-racial and multicultural features of modern Australia to which Lionel Murphy made so many contributions.  He came from the people.  He served the people.  He never forgot his origins.  He did not pretend to be different than he was.  The values of democracy, egalitarianism and kindness that were kindled in his spirit at a local public school motivated him all his days.  His was a distinctive and spirited contribution to our Commonwealth.  In the first century of federation, Lionel Murphy is one of those public figures who stands out.  Although this is the opinion of a friend, I do not doubt that it will also be the opinion of history.  He was colourful and larger than life.  As I sit in his seat I can almost hear him saying to me:  "Question that proposition.  It sounds rubbish.  What would the ordinary Australian think about that opinion?  Just try to put yourself in the shoes of those who are disadvantaged".  Fortunate is the nation that can boast of a child who rises to leading positions in the three branches of its government yet who never ceased to question, cajole and criticise in this way. 


          In the second century of our Commonwealth we must keep it thus.





Michael Kirby
























Michael Kirby