LIONEL KEITH MURPHY
A Biographical Note
The Hon Justice M D Kirby AC CMG*
Lionel Murphy was an extraordinary Australian. He served at
the highest level in the three branches of national government in Australia. He
was a leading barrister, parliamentarian and judge. He initiated major reforms
of the law. But to the friends who remember him, he was a warm, gregarious,
engaging personality. His mind was brimming over with ideas – many of them
derived from sources far distant from his principal discipline of the law. It is
said of the law that it narrows the mind by sharpening its focus. If this is
generally true, it did not happen in Lionel Murphy’s case.
Lionel Murphy was born on 30 August 1922 in Sydney. He was
educated at the Sydney High School and at the University of Sydney. At the
University, he took the then very unusual combination of the Bachelor of Science
degree as well as the Bachelor of Laws. He had a lifelong interest in science,
which he cultivated by wide reading. This took his mind into many otherwise
unvisited areas of activity. It freed it from being captured by well-worn legal
After graduation, Lionel Murphy was admitted to the New South
Wales Bar in 1947. He was an instant success. His practice was wide-ranging, but
the work in which he attained acknowledged leadership included many leading
cases before the Industrial Courts and Tribunals, Federal and State. His
distinction in the practice of the law was acknowledged in 1958 by his
appointment as Queen’s Counsel.
Lionel Murphy had a life-long commitment to human rights. He
was a member of the Executive of the Australian Section of the International
Commission of Jurists from 1963. He also played an active part in the work of
the New South Wales Council for Civil Liberties, appearing in court for the CCL
in several worthy cases.
In 1962, Lionel Murphy was elected a senator for New South
Wales in the interests of the Australian Labor Party. In the Senate, he rose to
be Leader of the Opposition (1967-72). Upon the election of the Whitlam
Government in 1972, he was elected Leader of the government in the Senate. He
was appointed Attorney-General and Minister for Customs and Excise. He held
these positions until 1975 when he resigned upon his appointment as a Justice of
the High Court of Australia.
During Lionel Murphy’s parliamentary years, he also served
as a member of the Federal Executive and Federal Conference of the Australian
Labor Party (1967-75). He took part in the Australian delegation to the United
Nations Conference on Human Rights in Teheran in 1968. In 1973-74, he led the
Australian legal team representing Australia’s interests before the
International Court of Justice in the successful challenge to the French nuclear
tests in the Pacific.
Whilst in Parliament, and particularly as Attorney-General, Lionel Murphy initiated numerous reforms of federal law. He was the Minister responsible for the introduction and passage of the Family Law Act, the Trade Practices Act and many other reforming statutes. He took a leading part in the establishment of federal legal aid. On his initiative, the Australian Parliament established the Australian Law Reform Commission in which he continued, to the end, to take a keen interest.
In the High Court of Australia, to which he was appointed in February 1975, Lionel Murphy rose eventually to be one of the most senior judges. For a time, he served as Acting Chief Justice of Australia. But he never allowed his high judicial office to deflect him from his original and questioning approach to the law, its assumptions, doctrine and institutions. He refused to accept any civil honour. During his eleven years on the High Court, he wrote 632 decisions. In 137 of these, he was in dissent. This represents an average of nearly 22% dissenting opinions, much higher than any previous High Court Justice before, or since. Such a figure put him in the league of dissenting judges in the United States of America. Although at the time, many of his dissenting opinions were regarded by the legal profession as heresy, with the passage of time, they have commanded more attention. Many of the ideas which Lionel Murphy expressed, in dissent, or with the majority, as a Justice of the High Court, have come to influence, or to be reflected in, later High Court opinions. These include his vision of an independent Australian common law, freed from unquestioning captivity to English common law precedent, his notion of implied constitutional rights, inherent in the very democratic structure of the Australian Constitution, his defence of agitators, undefended prisoners and others in special need of protection of their civil liberties, and his insistence that the common law could be a proper vehicle for reform and legitimate change.
Lionel Murphy’s last years were full of stress. He was charged with and convicted of an offence under the Crimes Act 1914 (Cth). However, the conviction was set aside by the New South Wales Court of Appeal. Upon the retrial, he was acquitted by the jury. He returned to his duties on the High Court. But he was to face a battle with cancer which he could not win. He returned to the Court to deliver his last judgments (including dissents) on the day before he died. His death occurred on 21 October 1986. His powerful intellect and major impact on Australia’s institutions continue to influence our national life.
Beyond these public things, Lionel Murphy’s memory is kept alive by his children, Cameron and Blake, and the legion of his admirers in Australia and overseas. They know that the world is a better place for Lionel Murphy’s life and many achievements. The scholars assisted by the Lionel Murphy Foundation will, by their lives and contributions, give continuing testimony to the enduring legacy of this remarkable man.
*High Court Justice, and former President of the New South Wales Court of Appeal; former President of the International Commission of Jurists.