This article was published in Australian Dictionary of Biography, Volume 18, (MUP), 2012
Lionel Keith Murphy (1922-1986), barrister, judge and politician, was born on 30 August 1922 at Kensington, Sydney, sixth of seven children of Irish-born William Murphy, hotelkeeper at the Four-in-Hand, Paddington, and his wife Lily, née Murphy, born in Tasmania. Named ‘Lionel’ at birth, he added his second-eldest brother’s name to his own after Keith died in 1939. Because his parents were estranged from the Catholic Church, Lionel attended Kensington Public School and, after repeating his final year (dux, 1935), the selective Sydney Boys’ High School. Supported by his parents, who had prospered through property investment and opened a general store at Lindfield, Lionel entered the University of Sydney (B.Sc., 1945, LL.B Hons, 1949), initially studying organic chemistry. After completing two years of his law degree he passed the Barristers’ Admission Board examination and was admitted on 2 May 1947 to the New South Wales Bar. He had joined the Australian Labor Party in 1946.
First occupying a small room in University Chambers, Phillip Street, in 1957 Murphy moved to the fourth floor of Wentworth Chambers. With an avid interest in books, ideas and current affairs, he had an extensive library and was a leader among the rising labour lawyers who shared his premises. His interests extended beyond the law and Labor politics to include science. Hard working, gregarious and sociable, he was unconcerned about his dress and appearance; he had a distinctive profile and a large nose that was broken in a 1950 car accident in England and left largely untreated.
During the 1950s Murphy established himself as a leading industrial lawyer, successfully representing left-wing unionists who were challenging the dominance of the industrial groups in the trade unions and their influence in the ALP. His first major win, in 1953, reinstated the reformers and ex-communists Jack Dwyer and Ray Gietzelt to the New South Wales branch of the Federated Miscellaneous Workers’ Union of Australia. Murphy was briefed by Morgan Ryan, a solicitor with strong union links. With Murphy’s encouragement Gietzelt became New South Wales president of the FMWU and general secretary (1955-84) of the national union, a position from which he supported Murphy’s political career. Murphy’s first appearance before the High Court of Australia was in 1953 as a junior barrister in an unsuccessful taxation case before Justice (Sir) Frank Kitto.
On 10 July 1954 at St John’s Church of England, Darlinghurst, he married a Russian migrant Nina Morrow, née Vishegorodsky (known as Svidersky), a comptometrist; they divorced in 1967. Until his marriage he had been living with his widowed mother in her Lindfield home. On 19 November 1969 at the registrar’s office, Hong Kong, he married Ingrid Gee—who had changed her name from Grzonkowski—a model and a television quiz-show compère, who had been born in German-occupied Poland.
Murphy had built a prominent legal career, combining successful advocacy with political strategy. He took silk in 1960. Having failed to gain Labor preselection for the Federal seat of Phillip in 1956, he continued to forge political connections. In 1961 he was elected to the Senate, his term beginning in July 1962.
In Opposition Murphy was a reforming senator. With James Odgers, clerk of the Senate, and the Democratic Labor Party senators, who held the balance of power, Murphy worked to introduce in 1970 the chamber’s comprehensive committee system. According to the parliamentarian Gordon Bryant, Murphy was the ‘catalyst who made this revolution happen’. Using the Senate to establish his leadership credentials, Murphy was elected leader of the Opposition in the chamber in 1967. He foresaw that the Upper House could become an important democratic forum, particularly one that he and the ALP in Opposition could exploit in publicising Labor policies and embarrassing the government. It was necessary, however, to convince the ALP to abandon its long-standing policy of abolishing the Senate, and to allay fears that a more robust second chamber might also restrict future Labor governments—which it did by refusing to pass supply in 1975. In the leading group of lawyer-politicians that rejuvenated the ALP during the 1960s, Murphy helped to change the party’s emphasis from old-style economic and socialist intervention to human rights and social justice.
Appointed the leader of the government in the Senate in the Whitlam government, Murphy was also attorney-general, minister for customs and excise, and minister in the Senate representing the prime minister and the minister for science (1972-75). He was a controversial figure, viewed either as a reforming attorney-general or as the driven, somewhat erratic minister, charged by the Whitlam government with the forging of legislative reform. Critics painted him as a dangerous radical, impatient with long-established legal and social arrangements. Some saw him as a man prone to extremes, particularly when in 1973 he personally led a police raid on the Melbourne headquarters of the Australian Security Intelligence Organization.
Murphy’s greatest political achievements were as attorney-general, although even that assessment is contentious. He initiated the Death Penalty Abolition Act 1973 and the Law Reform Commission Act 1973 that established the Australian Law Reform Commission; he appointed Michael Kirby as its inaugural chairman. The Australian Legal Aid Office was created that year. Murphy’s Trade Practices Act 1974 established the Australian Trade Practices Commission to better regulate commerce. Controversial matters such as the revamping of family law were vigorously debated and revised by a hostile Senate. The Family Law Act 1975 simplified divorce proceedings to sanction the ‘no-fault’ irretrievable breakdown of marriage, established by twelve months separation. In 1973 Murphy had secularised marriage through the authorisation of civil celebrants. According to a Senate colleague, James McClelland, Murphy was a ‘passionate and indefatigable promoter of his reforms’.
A champion of human rights, Murphy had led the ALP in adopting a bill of rights as Labor policy, despite the wariness of many that it might be used to curtail government and unions, and to protect private property interests. Because of the difficulty in securing constitutional change, Murphy proposed in 1973 a human rights bill with a racial discrimination bill. His case focused on the shortcomings in parliamentary and common law protections, and the vulnerability of individuals to government actions. This was hotly disputed, including by Sir Robert Menzies, who championed the adequacy of parliamentary responsible government and the common law, and warned against politicising the courts by their having to interpret rights issues. After the 1974 double dissolution and election that failed to give Labor control of the Senate, the bill lapsed. Eventually passed in 1975, the Racial Discrimination Act became an important instrument of rights protection.
On 10 February 1975 Murphy was appointed a justice of the High Court (filling the vacancy occasioned by the death of Sir Douglas Menzies). Although not the first appointment of a lawyer-politician, Murphy’s was controversial. The chief justice, Sir Garfield Barwick—himself a former attorney-general—informed Prime Minister Gough Whitlam that Murphy was ‘neither competent nor suitable for the position’. Whitlam, however, wanted a judge sympathetic to Labor. Murphy viewed the position as a means to continue developing and reforming the law, at the highest level, on the issues and principles that had concerned him as a barrister and in politics.
From 1975 to 1985 Murphy took part in 632 decisions, dissenting in 137, and writing opinions or short statements in 404 cases. His distinctive judicial method, in a relatively conservative court, was of overt legal realism. Dismissive of the rules of precedent and the more arcane, forensic techniques of appellate reasoning, he preferred the bold law-making approach of American judges, such as William O. Douglas: broad statements of underlying principles, liberal assumptions of constitutional implications, and an appeal to democratic ideals and the nature of the society that operated the Constitution. Murphy’s judgments were brief and to the point and drew upon a wider spectrum of non-legal sources than judges were accustomed to use. Adventurous and innovative, he pleased those who shared his views, while others saw him as the epitome of a lawless judge. He went wigless, except on the most ceremonial of occasions.
Murphy used idiosyncratic reasoning to support his strongly held views, which had little basis in law or historical practice. In McKinley’s case (1975) Murphy alone dissented from the court’s ruling that section 24 of the Constitution did not require House of Representatives electorates to have equal numbers of people or electors. Against historical fact and judicial precedent, he asserted in Bistricic’s case (1976) that Australia had been an independent sovereign state since 1 January 1901. In the DOGS (‘Defence of Government Schools’) case (1981), which sought to challenge the constitutional validity of state aid for church schools, Murphy decided that the freedom of religion clause in the Australian Constitution entailed Thomas Jefferson’s conception of a ‘wall of separation’ between church and state that precluded Catholic schools from receiving state aid. In other areas, such as implied constitutional rights and when interpreting economic clauses, Murphy’s judgments were more prescient.
In his final years on the High Court Murphy fought serious allegations of impropriety. On 2 February 1984 the Melbourne Age published, under the headline ‘Secret tapes of judge’, transcripts of tape recordings of telephone conversations, illegally recorded in 1979-81 by the New South Wales police. Although not authenticated, they were allegedly between Murphy and Morgan Ryan, who in 1982 faced charges of forgery and conspiracy. A Senate select committee, established in March 1984, cleared Murphy of any misconduct relating to the tapes. However, the chief stipendiary magistrate of New South Wales, Clarrie Briese, gave evidence that at a dinner party in 1982 Murphy had used a conversation to pressure him into influencing the examining magistrate; in hearings before a second Senate committee commenced to investigate Murphy, Judge Paul Flannery of the New South Wales District Court, who presided over Ryan’s trial, reported that at a dinner party two days before the trial Murphy had made reference to a recent High Court ruling on conspiracy: Ryan’s counsel cited that case in his opening argument.
Prosecuted on two charges of attempting to pervert the course of justice, in July 1985 Murphy was acquitted of the ‘Flannery allegation’ and convicted of the ‘Briese allegation’. When acquitted in a new trial in April 1986, he announced his intention to return to the bench, but first would take his two young sons to the film Crocodile Dundee. Yet the controversy continued and the ALP attorney-general, Lionel Bowen, appointed a parliamentary commission of inquiry, consisting of three retired judges, to review Murphy’s conduct. It was cancelled after a report in July that Murphy had inoperable cancer.
Exhausted and ill, Murphy nevertheless returned to the High Court for one week in August. During his protracted ordeal he had asserted the principle of judicial independence and had refused to resign. The ‘Murphy Affair’, built around flimsy evidence and innuendo, became a witch-hunt, but it highlighted Murphy’s injudicious social dealings. For a man who had spent a professional lifetime in what he described as the ‘never-ending task’ of translating the ‘contemporary ideals of democracy and justice into practice’, it was a tragic end.
Survived by his wife and their two sons, and by the daughter of his first marriage, Murphy died of colon cancer on 21 October 1986 at his home in Canberra and was cremated. A State memorial service was held at the Sydney Town Hall. According to his close friend Neville Wran, the former New South Wales premier, Murphy had ‘an outstanding grip of the law’ and, as a young barrister, was a ‘persistent advocate’ although not particularly eloquent or skilful at the Bar. Justice Kirby observed that Murphy’s ‘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 or inapplicable’. The parliamentarian Barry Jones described him as ‘a passionate participant in the human adventure. He was magnetic, fearless and even reckless’.
Having rejected a knighthood in 1976, Murphy was pleased that the Lionel Murphy Library in the Attorney-General’s Department, Canberra, was named for him in 1983. Next year a supernova remnant was named the ‘Lionel-Murphy Nebula’. He placed an enlarged photograph of it where other justices hung the portrait of the Queen. The Lionel Murphy Foundation, established in 1986, provides postgraduate scholarships for study that promotes peace, social justice or the rule of law, and holds an annual memorial lecture.
Brian Galligan, 'Murphy, Lionel Keith (1922–1986)', Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography/murphy-lionel-keith-15823/text27022, published first in hardcopy 2012, accessed online 28 July 2016.
This article was first published in hardcopy in Australian Dictionary of Biography, Volume 18, (MUP), 2012