Remembering Lionel Keith Murphy
30.08.1922 – 21.10.1986
Lionel Keith Murphy,
of William an Irish immigrant
and Lily born Murphy,
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.
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.”
“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,
who is only interested in the availability
of her beaches, beer, boobs, bums
and bountiful bamboozlement.
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,
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.
“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.
in our incomplete state,
there would be no advance towards civilisation.’
Mr. Neal is entitled to be an agitator.”