Australian Dictionary of Biography

James Muirhead, n.d.

Manfred Karlhuber Photography

James Henry Muirhead (1925–1999), Supreme Court justice, royal commissioner, and administrator of the Northern Territory, was born on 24 April 1925 in Adelaide, only child of South Australian-born parents Kate Sarah Agnes, née Butler, and her husband Henry Mortimer Muirhead, special magistrate. Jim’s father’s experience with the 10th Battalion, Australian Imperial Force, had a profound impact on his son. His mother was the daughter of (Sir) Richard Butler, premier of South Australia in 1905. In a connection that he often later highlighted, his maternal grandfather had been minister (1909–10) responsible for the Northern Territory during the time it was administered by South Australia. Aged five, Jim commenced at the Wilderness School. In 1934 his father was appointed police magistrate for Adelaide, and Jim moved to St Peter’s College. He was a rower and an army cadet, attaining the rank of cadet lieutenant.

Studying law at the University of Adelaide (LLB, 1950), Muirhead completed one year before joining the Second Australian Imperial Force. He enlisted on 17 November 1943 and joined the 57th/60th Battalion as an infantryman and signaller. Later he observed that his time in the infantry was ‘the most valuable part of my education as it taught me something about people and was a good recipe for eliminating any pomposity introduced in earlier life’ (Rosenzweig 1993, 13). He disembarked at Torokina, Bougainville, on 5 January 1945, and participated in the advance towards Buin along Commando Road through the southern sector of the island. After the Japanese surrender, he served until March 1946 with the 37th/52nd Battalion on garrison duty at Rabaul, New Britain.

Returning to Australia, Muirhead was demobilised on 20 March 1946. He subsequently recalled his father’s advice, stemming from his own experience of repatriation, that ‘I would be a fool to throw away the opportunity of completing my university course’ (Rosenzweig 1993, 14). Accordingly, after four further years at the University of Adelaide, he was admitted as a practitioner of the South Australian Supreme Court on 19 December 1949. At St Andrew’s Anglican Church, Walkerville, on 4 February 1950, he married Margaret Hamilton Frayne. He was a barrister and solicitor until appointed to judicial office in 1970, and in 1967 was appointed Queen’s Counsel.

As a judge Muirhead served initially with the Local and District Criminal Court of South Australia (1970–72). In August 1971 he was commissioned as a captain in the Australian Army Legal Corps (Citizen Military Forces). For five months in 1972 and 1973 he was an acting justice of the Papua New Guinea Supreme Court. There he developed his deep appreciation for indigenous customs: ‘It exposed him to the difficulties faced by indigenous people, with their own traditional laws and cultures, when they were brought before a Western legal system’ (Milliken 1999, 7).

Back in Adelaide, Muirhead was vice-president of the Australian Crime Prevention Council. In late 1972 he had been appointed to establish an Australian Institute of Criminology, and he served as acting director in 1973 and 1974. That year he was appointed a Commonwealth judge, taking up appointment as the second residential judge of the Supreme Court of the Northern Territory on 1 May 1974. In 1976 he was involved in the decision in Regina v. Anunga, which produced guidelines for interrogating Indigenous Australian suspects (the ‘Anunga Rules’). He was, however, most often remembered for presiding over the 1982 trial that convicted Lindy Chamberlain of murdering her daughter. The conviction was controversial and in 1986 Chamberlain was released after the discovery of new evidence relevant to her defence. She would later remember that Muirhead had ‘bent over backwards to be fair and sympathetic’ to her and her husband (Chamberlain-Creighton 2015, 236). Always refusing to remark on the case in public, Muirhead later noted that he ‘must be one of the few who have not written a book about it’ (Rosenzweig 1996b, 236). This reticence was an important part of his legacy: he was ‘trenchantly opposed to public judicial comment’ (Balance 1999, 14), saying it was ‘quite fatal to the whole judicial stature’ (Crisp 1987, 23). After the Federal Court of Australia was established, he served concurrently as a judge of that court from 1977. That year he received the Queen Elizabeth II Silver Jubilee medal. In August 1980 he was appointed an additional judge of the Supreme Court of the Territory of Cocos (Keeling) Islands.

Muirhead and his wife retired to Perth, Western Australia in September 1985. Margaret was awarded the OAM in 1987 for her services to the Young Women’s Christian Association of Darwin and the community. James was soon recalled, however, to be a resident judge of the Federal Court of Western Australia, and he then returned to the Northern Territory as an acting judge of the Supreme Court (1987–88). On 21 October 1987 he was appointed commissioner of the joint State-Federal Royal Commission into Aboriginal Deaths in Custody.

With Muirhead as chair and sole commissioner, the inquiry began in Canberra in November 1987. It was given the task of reviewing the circumstances of each death from 1 January 1980, but the terms of reference were later expanded to consider the related underlying social, cultural, and legal issues. Originally inquiring into the deaths of some forty-four Aboriginal people, the ‘Muirhead Commission’ soon identified ninety-nine deaths, and further commissioners were appointed. On 21 December 1988 he issued an interim report that aimed to minimise further custodial deaths and highlight practices needing immediate action. In January 1989 his commission was extended, and he retired in April. While the inquiry concluded that the deaths investigated were not due to police violence, it emphasised the duty of care owed by custodial authorities. The final report in 1991 made 339 recommendations, including using imprisonment as a last resort and providing medical assistance to detainees when necessary. Bill Jonas, at the time of Muirhead’s death the Aboriginal and Torres Strait Islander social justice commissioner at the Australian Human Rights Commission, would note that Muirhead had ‘brought to his work a rigorous and inquisitive mind and a heartfelt commitment to justice for Indigenous Australians’ (Australian Human Rights Commission 2001). Muirhead himself said that the appointment was ‘one of the saddest and most difficult tasks of my life’ (Rosenzweig 1995, 33).

On 1 July 1989 Muirhead became administrator of the Northern Territory. His initial two-year appointment was twice extended, until 4 December 1992, when he retired. He had constitutional responsibilities to both the Commonwealth and Northern Territory governments, ‘but principally, as I saw it, our efforts should be devoted to the people of the Territory’ (Muirhead 1996, 198), he later said. As a vice-regal representative, he frequently noted, he was expected to avoid commenting on controversial or political issues—he would not embarrass the chief justice by giving his opinions on legal judgements, nor would he intrude in the realm of politics. He often addressed the subject of Indigenous Australians and the law, a topic on which he had become an authority. Many of his addresses and speeches were leavened with original verse.

Patron of seventy-four organisations, Muirhead was the second honorary colonel of the North West Mobile Force. As administrator he was deputy prior of St John Ambulance Australia (Northern Territory), and in 1990 he was appointed a knight of grace of the Order of St John of Jerusalem. Margaret was patron of the organisation, and in 1990 was appointed commander sister of the order; in 1993 she would be promoted to dame of grace. In 1991 he was appointed AC. Following his retirement in 1992, he and Margaret moved to the beachside suburb of Cottesloe, Western Australia. His memoirs, titled A Brief Summing Up, were published in 1996.

A man of sturdy frame with a countenance that projected his accumulated wisdom, Muirhead shunned the spotlight throughout his career but accepted with grace the public obligations that came with his role as administrator. He wore his medals sparingly, but with pride in his small wartime contribution. ‘His … sense of fairness, courtesy and gentle humor [sic]’ won for him ‘a reputation as a compassionate judge’ (Crisp 1989, 148). Survived by his wife and their daughter and three sons, he died on 20 July 1999 during a visit to Darwin and was cremated after a state funeral at Christ Church Cathedral. His portrait by Harold Thomas was commissioned to hang in the Northern Territory’s Parliament House, and he was honoured by the naming of James Muirhead Chambers in Darwin. The Justice James Muirhead Churchill Fellowship also perpetuated his name, and in 2004 Darwin City Council registered the suburb of Muirhead in his memory.