Lionel Murphy: an innocent man

Remembering Lionel Keith Murphy

30.08.1922 – 21.10.1986

 

Lionel Keith Murphy,

of William an Irish immigrant

and Lily born Murphy,

Sydney 1922.

 

Outstanding student, budding larrikin

– early scholastic achievements

encouraged his questioning,

sharpened his tools

for the liberation of the spirit.

 

An oddity? an early resister?

a Jew-lover? Or simply a man

destined to think otherwise.

 

Honours graduate in science, Sydney 1945.

Foreshadowing: “The road to civil liberties

and public affairs is through the law.”

In 1947 at the Bar.

First class honours in law, Sydney 1949.

 

Lionel – the blarney, the charm,

the generosity of heart,

father of Lorel.

 

Fifteen years of practice,

always loyal to his origins

and his commitment.

On a speech on civil liberties

chosen among forty four for the Senate.

 

In times of unfriendly fascism,

always the activist,

he transformed that stolid chamber

by the kindly optimism of his nature

the charming strength of his logic

the conquering seduction of his advocacy.

 

Murphy the civil libertarian –

defender of OZ in obscenity trials.

The public man – Leader of the Senate Opposition.

 

Lionel the charmer –

husband of Ingrid,

who gave him Blake and Cameron.

 

Against aggression on Vietnam,

early in 1969

amidst racist, rampant sycophancy

a warning: the war is lost.

At home: “Let there be a war on crime,

but not a war on citizens’ rights.”

 

Dreamer of justice and liberty

– from the State of the rum corps

the cat-o’-nine-tails in the closet

and “the Catholic Tammany mob

running the Labor Party.”

Agitator against the malefactors of great wealth,

confidently preparing for government.

 

Attorney-General in the Whitlam Government

– his very first act

was to release seven youths

who had preferred gaol

to the national gamble

in one more, meretricious war.

 

Victorious at The Hague Court

against nuclear France,

committed in Canberra

to restore dignity

to the majority of Australians:

the Family Law Act.

 

Against Mammon’s priests

and the keepers of “security intelligence”

– the respectable society would not forget.

The hit-man for capitalism, counsel to them all,

will long remember.

 

Murphy the social dreamer –

marriage as a civil compact,

legal aid as a fundamental right,

law reform as an instrument

for the advancement of society

– not of the few, powerful and moneyed.

 

“Let the seller beware”,

disclosure to combat lawlessness,

the Government duty to account

– his cornerstone Acts remain,

many alas disfigured, defiled.

 

A National Companies Bill

and a Bill of Rights,

seized upon by the vandals

after the royal ambush of 1975,

left to the inept care

of moral and civic pygmies

who in time of testing

would pass the buck on Lionel.

 

Murphy the revelation –

out of the rarefied air of the Sydney Bar

the coming of a New England libertarian,

in the Senate

the blossoming of the Antipodean Brandeis,

on the High Court

the arrival of an Australian common weal defender

in the mould of William O. Douglas.

 

Justice Murphy,

the scourge of philistines,

trail-blazing by dissent.

 

“Australia’s independence: 1901” Bistricic v Rokov (1976)

“The Privy Council: the judicial arm

of British imperialism …

an eminent relic of colonialism …

by the House of Lords or the courts below it

in the English system.” Viro v The Queen (1977)

Rejecting the tradition of the wig

which is the mark

of Origines-like judiciousness,

against a perpetuation

of colonial servility and intellectual sloth,

publicly speaking of the responsibility of judges

in plain language

for the people to hear:

“Then there is the doctrine of precedent …

a doctrine eminently suitable for a nation

overwhelmingly populated by sheep.”

 

Murphy the egalitarian:

“one person, one vote”

in “as nearly as practicable equal

[divisions in each state]”

– as Jefferson warned,

attempting not to blank the living constitution

by construction. The McKinlay Case (1975)

Offending the judicial establishment

by favouring the accused,

against “verballing” and “confessions”:

Burns v The Queen (1975); Cleland v The Queen (1982)

against denial of legal representation:

Bunning v Cross (1978); McInnis v The Queen (1983)

against with-hunting: The Chamberlain Case (1984).

 

“The history of human freedom

is largely the relationship

between the individual and the State

(that is the Government or the Crown)

in the administration of criminal justice.

… in Australia … a judgment of acquittal

is as between the State and the accused

a complete clearance of the accused from the charge

… no mere immunity from further prosecution

as might be obtained by a pardon

… but judgment of innocence.”

 

Prophetically:

“If this were not so,

once a person is charged,

he can never be cleared; there is no way

in the criminal justice system

to establish his innocence.

Although he would be presumed innocent until verdict,

if he is acquitted

his innocence becomes questionable.”

The Queen v Darby (1982)

 

But who cares?

 

Offending the religious establishment

in The State Aid Case (1981).

Who cares beyond the zealots ?

The populace mostly believes in nothing

-certainly never heard of Jefferson.

 

Mammon’s zealots care. Every judgment

Against the tax avoidance industry

another log on Lionel’s pyre.

In The Westraders Case (1980)

he clashed with the “literalists”

– the strict interpreters,

who made a bundle from the Bar

and were defending such malpractice from the Bench

in “a feat of modern magic, successful only

because observers allow themselves to be deceived.”

 

All of a sudden many began to care,

prodded by what are called the media

-foreign funnels for filth,

fulfilling and fuelling feeble feelings

with film-like features of fairness.

 

What is going on? everyone began to ask.

 

For here was the son of the Irish immigrant

upsetting everyone’s hopes of quick riches,

of ripping off the common weal,

threatening everyone’s continuous treatment

of Australia as a whore,

disturbing everyone

who is only interested in the availability

of her beaches, beer, boobs, bums

and bountiful bamboozlement.

 

Justice Murphy,

from the beginning a man of intellectual candour,

quoting – as he repeatedly did in his judgments –

from American decisions:

“Legislators represent people, not trees or acres.

Legislators are elected by voters,

not farms or cities or economic interests.”

The McKinlay Case (1975)

 

Murphy, always a man of liberation –

successful in making law “rational, humane and just”:

the Racial Discrimination Act in 1975,

committed as ever in 1982

to put an end to the brutality against Aborigines:

Koowarta v Bjelke-Petersen (1982).

 

Murphy, publicly, plainly, movingly speaking out:

“Two hundred years ago,

Europeans came to a country inhabited by peaceful people

living in harmony with their environment,

with an ancient system of Law

and a highly developed system of social justice.

They had no need

of the goods, the laws or the ideas of the invaders.

The British Government took their land,

killed most of them,

We continue to degrade them,

to discriminate against them,

and to deny them elementary human rights.

They constitute only one per cent of our population.”

 

Murphy the internationalist: The Franklin Dam Case (1983).

 

Murphy – to his end the dissenter,

the man who thought otherwise

one hour before passing.

In his heart he had civil liberties,

and the common weal – not s. 92.

 

Murphy carried on

unconcerned that he was a marked man.

Never let up.

Never would have resigned.

 

In a sense he marched himself to his end.

 

Was it because of the power of money

or of the born to rule,

or of the “Catholic Tammany mob”

which runs the spineless Labor Party

in the Premier Colony,

or of the ‘intelligence’ industry,

or of some multinational

-or all of them ?

 

Throughout his ordeal he never lost his charm,

the contagious optimism,

his secular faith.

 

“A criminal trial is not conducted

as a contest between guilt and innocence …

It begins with the presumption that the accused is innocent.

The presumption is of course rebuttable,

but only by proof of guilt beyond reasonable doubt.

If the prosecution fails to adduce such guilt

and the accused is acquitted,

the presumption is said to become irrebuttable or conclusive.

In truth the presumption is replaced

by a judgment of innocence.” The Queen v Darby (1982)

 

Lionel Keith Murphy died an innocent man.

 

Should questions be asked – again?,

they should be directed to the Attorney-General:

why did he not enforce

the Telecommunications (Interception) Act 1979

which makes it illegal to intercept,

authorise,

suffer or permit

to divulge or communicate

any information obtained

by intercepting a communication

unless in special cases as permitted by law ?

and to the minister responsible for the rum corps police

at the time “the tapes” used in the witch-hunt

were being manufactured:

was anyone prosecuted for such an illegal activity ?

 

There never was a Murphy Case.

For two and a half years the media ran,

under a different name,

a Hawke and Others Case

for allowing trials by committee in the Senate

and by commission, after acquittal in the courts.

 

In these times of friendly fascism,

Amidst the indifference

of an uncaring and unfeeling

post-colonial arrangement for wealth extraction

by shifting patrons

such as Australia,

malgoverned by a mob of punters

on popularity, polls and pragmatism,

little men acting “most foolishly and contemptibly”

would not risk drawing the line

– without counting heads and probable losses –

and say right from the outset:

“ … if anybody has an allegation to make

about Justice Murphy, let him make it publicly and precisely.”

 

Nobody ever did.

 

“The Government should have stood up to the Senate inquiry.

It’s not a job of Senate committees to decide

if people have broken the law.

It’s not for parliamentarians to decide those issues.

That’s what the courts are for.”

 

Who can really tell

what would Lionel Keith Murphy might have chosen

to mark his passing: 21October 1986 c.e.?

 

This is my choice.

The words are from his judgment in Neal v The Queen (1982).

Mr. Neal, an Aborigine, had been sentenced to two months

imprisonment for assault. He appealed against the sentence

and, although the prosecution did not argue for an increase,

the Queensland Court of Criminal Appeal

increased the sentence

to six months. On appeal to the High Court,

Justice Murphy favoured a fine rather than imprisonment.

He said:

“That Mr. Neal was an ‘agitator’ or stirrer

in the magistrate’s view

obviously contributed to the severe penalty.

If he is an agitator,

he is in good company.

Many of the great religious and political figures of history

have been agitators,

and human progress owes much

to the efforts of these and the many who are unknown.

As Wilde aptly pointed out

in The soul of man under socialism,

‘Agitators are a set of interfering, meddling people,

who come down to some perfectly contented class

of the community

and sow the seeds of discontent amongst them.

That is the reason

why agitators are so absolutely necessary.

Without them,

in our incomplete state,

there would be no advance towards civilisation.’

Mr. Neal is entitled to be an agitator.”

 

G. Venturini