MURPHY, Lionel Keith (1922–1986)
Senator for New South Wales, 1962–75 (Australian Labor Party)

Lionel Keith Murphy was the most divisive figure in the history of the Senate. His supporters saw him as inspirational: an enlightened and bold reformer whose unceasing mental and physical energy achieved much of permanent value. Opponents regarded him as dangerous, reckless and lacking in fundamental political nous. Doubts about Murphy’s judgment were also held privately by some members of his own party. Years after he had ceased to be a member of the Senate, his conduct as a High Court judge was the subject of painful, protracted and bitter debate among senators. Even before the most controversial periods of Murphy’s public life—as Attorney-General and then as a justice of the High Court—he had made his mark as one of the great innovators of twentieth century Senate practice.

Lionel Murphy was born in Sydney on 30 August 1922, the fifth son of William Murphy, publican, builder and property developer, and his wife Lily, neé Murphy. After the death of an elder brother, Keith, in 1939, Lionel took Keith’s name as his own second name ‘to keep Keith’s memory alive in the family’. Educated at Kensington Public School and Sydney High School, Lionel undertook a science course at the University of Sydney, graduating with honours in organic chemistry in 1945, and in 1943 working in the chemical industry, thereby coming under the authority of the Manpower Directorate. Murphy was a vigorous participant in university life, taking part in debates and being elected briefly to the Students’ Representative Council (SRC). Murphy’s disqualification from the SRC on technical grounds was said to have quickened his interest in politics and law. In 1944 he was one of the leaders of a student protest against the federal Labor Government’s wartime press censorship.[1]

Murphy began law at the University of Sydney in 1945 and worked with intensity, graduating with honours in 1949. He took the unusual step of gaining admission to the New South Wales Bar before completing his degree. Admitted to the Bar on 2 May 1947, Murphy practised successfully in industrial law, an especially turbulent area in the 1950s. He appeared in major cases on behalf of left-wing unionists fighting against control of their unions by right-wing ‘Groupers’; his legal adversaries included the future Governor-General of Australia, John Kerr, and James McClelland. Murphy was appointed QC in New South Wales in December 1960 and in Victoria in September 1961. Through his legal work he grew close to Ray Gietzelt, elected general secretary of the Federated Miscellaneous Workers’ Union in 1955. Ray’s brother, Arthur Gietzelt, was ‘a legendary numbers man’ for the left in the New South Wales ALP. On 10 July 1954, at St John’s Church, Darlinghurst, Murphy married Russian-born Nina Morrow, née Vishegorodsky, but known as Svidersky, with whom he had a daughter.[2]

In 1956 Murphy unsuccessfully sought Labor preselection for the federal electorate of Phillip. Despite being regarded as ‘a sort of a demon figure’ by the right-wingers who controlled the New South Wales ALP, he tried for federal politics again in 1960, this time seeking a place on the Senate ticket. The state executive did not have the numbers to dominate Senate preselections, and the Gietzelt brothers used their considerable influence on his behalf. Murphy drew first position on the ballot paper, which carried with it the right to be the first to address the preselection convention. He made an eloquent presentation on the theme of civil liberties and to the surprise of many secured second spot on the ticket by one vote, after preferences.

Elected to the Senate at the general election of 9 December 1961, Murphy made his first speech on 29 August 1962. Although his party was committed to the abolition of the Senate—a position he later endorsed—Murphy began by praising the Senate as ‘the foremost debating chamber’ in Australia, saying that it had ‘achieved an international reputation for its supervision and control of delegated legislation’. The dominant theme of his address was the need for national long-term planning—in the economy, in setting targets for national development and migration, and in education. It was a characteristic of Murphy, probably in part as a result of his scientific training, that he believed problems could be solved by the energetic application of logical solutions.[3]

To Murphy, the natural condition of the Senate under proportional representation—that of an evenly divided chamber—was ‘not a bad thing for the country’. He considered that the House of Representatives had ‘ceased doing the things that it should be doing—reviewing legislation’, and that many things that were being given as a protection to the Parliament were being turned by the executive into weapons for its own use. ‘The Senate’, he said, ‘can help to stop this’. In 1963 he was ‘profoundly disturbed’ at the drafting of bills containing the words ‘in the opinion of the Governor-General’. This was a ‘kind of vice that has been creeping into legislation’ and raised the question ‘of the supremacy of the Parliament and the extent to which the Executive is to determine matters which thereafter become unexaminable as to their validity either in the courts of law or in the Houses of this Parliament’. Murphy, working with government senators Wood and Wright, persuaded the Government to omit the words in one of the bills.[4]

Murphy’s energy, intellectual curiosity and readiness to speak in detail on any topic soon carried him to prominence as one of the Labor Party’s most effective Senate contributors. The Senate’s capacity to question, review and amend fitted neatly with two of his overriding concerns—civil liberties and the rights of the individual. Murphy raised persistent questions about censorship of books and films. In 1967 he claimed that one of the great myths in Australia was that of living in a free country. ‘There is’, he said, ‘a creeping erosion of … everyday rights’, instancing security dossiers, phone taps, limitations on freedom of expression of public servants, and conscription for service in Vietnam. He was a strong opponent of Australia’s involvement in that war. A passionate and persistent campaigner for the abolition of capital punishment, he introduced private senators’ bills, which twice passed the Senate only to founder in the House of Representatives. Eventually, as Attorney-General, he secured the abolition of the death penalty in federal territories in 1973.[5]

In February 1967 Murphy was elected Leader of the Opposition in the Senate, defeating Don Willesee by four votes. Despite his elevation to leadership, he was not spared party factional battles and later that year had to fight hard for preselection, surviving a recount to maintain second spot on the party ticket. His relationship with the new party leader, Gough Whitlam, had never been easy and in April 1968 they clashed when Murphy voted against Whitlam in support of the Federal Executive’s exclusion of right-winger, Brian Harradine. Whitlam was far from comfortable with Murphy’s repeated assertions of the power of the Senate. Murphy was also regarded as a serious potential rival to Whitlam for the party leadership. At this time, one close observer, referring to Murphy as ‘extremely self-controlled’, said that in conversation he seemed to say only ‘what he thinks the listener needs to know’. Divorced from his first wife in 1967, Murphy married television presenter and model, Ingrid Gee (Grzonkowski), in Hong Kong on 19 November 1969. They had two sons..[6]

Murphy was highly creative in using the procedures and powers of the Senate to ensure that Parliament kept the Executive in check. One of his first acts when appointed Opposition Leader in the Senate in February 1967 was to assert the Senate’s right to meet at a time of its own choosing, rather than at the behest of the government. The resulting session of the Senate, in June, saw the disallowance of regulations increasing postal and telephone charges. Another matter related to contingent notices of motion, which enabled the suspension of standing orders by a simple majority and had been used by governments for the rapid transaction of parliamentary business. In 1968 Murphy established the precedent of private senators moving such motions.[7]

Murphy’s most significant achievement in the cause of parliamentary reform was his championing of the Senate committee system. J. R. Odgers, had urged the expansion of the committee system as early as 1956. The effective public performance of several Senate select committees during the 1960s stimulated interest in the further development of committees. Labor parliamentarians, including Whitlam, who had proposed such a system in 1967, became a little less enthusiastic. Murphy, however, lent his exuberant and unconditional support to the establishment of a full system of legislative and general purpose committees, and guided the proposal through the Labor Caucus. In June 1970 the Senate, approved the introduction of both estimates and standing committees, with Murphy moving the motion to establish the latter. It was also Murphy who, in September, moved the first reference to one of the new standing committees.[8]

Murphy’s determination to make Parliament more effective and more accountable went hand in hand with the instincts of a ruthless and opportunistic politician. In 1970 he persuaded Caucus to oppose the States Receipts Duties (Administration) Bill in the Senate (the bill was defeated when the ALP and the Democratic Labor Party voted together), and to attempt subsequently to defeat the budget in that house, despite strong dissent from Arthur Calwell and Gough Whitlam. Murphy told his fellow senators:

There are no limitations on the Senate in the use of its constitutional powers, except the limitations imposed by discretion and reason. The Australian Labor Party has acted consistently in accordance with the tradition that we will oppose in the Senate any tax or money Bill or other financial measure whenever necessary to carry out our principles and policies.

To prove the point, he appended to his speech a list of 169 occasions since 1950 when financial measures, including taxation and appropriation bills, had been opposed in whole or in part by Labor in the Senate. These words were invoked by Labor’s opponents in the crisis over the blocking of supply five years later.[9]

In December 1972, shortly after the Labor Party’s election victory, Murphy was appointed Leader of the Government in the Senate, Attorney-General, and Minister for Customs and Excise. He was also Minister in the Senate representing the Prime Minister and Minister for Science. He was an extraordinarily active and potent legislator, aware that ‘caution is always easier professionally: if you don’t do it, you can never be wrong’. Acts initiated by Murphy and secured during the Whitlam Government’s tenure included the Death Penalty Abolition Act 1973; the Family Law Act 1975 and the Trade Practices Act 1974, which introduced major changes to family law and trade practices legislation; and the Racial Discrimination Act 1975, which proscribed racial discrimination. The Law Reform Commission Act 1973 established the Australian Law Reform Commission, and the Australian Legal Aid Office was created in the same year. The Statute Law Revision Act 1973 consolidated Commonwealth statutes for the first time since 1950. Working in cooperation with the states, Murphy continued the liberalising of the laws governing censorship of books and films begun by his predecessor in the customs portfolio, Don Chipp. He did not succeed in his attempts to secure a national corporations law and administrative agency, and to establish an Australian bill of rights. Murphy was the originator of subsequent legislation setting up the office of Commonwealth Ombudsman and establishing an Australian Federal Court and an Administrative Appeals Tribunal. In 1974 he appeared in person before the International Court of Justice to argue against the legality of French atmospheric nuclear tests in the Pacific.[10]

While Murphy’s disdain for caution and his instinct for quick and decisive action produced a rich legislative harvest, the same qualities led him to make serious political misjudgments. Anxious to begin reforms to family law, in advance of the passage of the 1975 Family Law Act he introduced some significant changes through the use of regulations. The regulations, which were poorly drafted, were disallowed in the Senate, the motion being moved by Reg Wright.[11]

Murphy’s highly publicised ‘raid’ on ASIO’s Melbourne office in March 1973, carried out in the mistaken belief that crucial information concerning Croatian terrorism was being withheld from him, was severely damaging both for his reputation and for the Whitlam Government, and resulted in his having a no confidence vote moved against him in April by Senator Withers. In March 1974 Murphy was at the centre of a scheme to secure an extra sixth Senate vacancy in Queensland by persuading the DLP’s Senator Gair to resign and take up the post of Ambassador to Ireland. The plan collapsed through the failure to procure Gair’s written resignation before the Queensland Governor, acting on the advice of the Premier, Joh Bjelke-Petersen, had issued writs for the election of just five senators from Queensland. In December 1974 Murphy advised the Executive Council that the raising of a $4 billion loan, sought by minerals and energy minister Rex Connor from irregular overseas sources, did not require Loan Council approval as it was ‘for temporary purposes’. This was the beginning of the ‘loans affair’, which did much to undermine the Government’s credibility during its last year of office.[12]

Murphy resigned from the Senate on 9 February 1975, because of his impending appointment to fill a vacancy on the High Court of Australia the following day. He was wearied by the ferocity of the political struggles of the previous two years, and doubtful of the long-term survival of the Whitlam Government. In making the appointment, Whitlam was not only removing a rival and a destabilising influence: he was also acutely aware of the difficulties attending constitutional change in Australia, and relished the opportunity to place an untrammelled judicial radical and centralist on the High Court. Murphy’s time on the bench was characterised by the spirit of activism and independent thinking that had marked his previous activities. This was reflected as much in the spare, succinct style of his judgments, as in their emphasis on such matters as implied constitutional rights, and his particular interest in American precedents.[13]

In February 1984 the Melbourne Age published transcripts of tape recordings of telephone conversations, which had been illegally obtained by members of the New South Wales police force. Dating from 1979 to 1981, the transcripts included conversations between Murphy and Morgan Ryan, a solicitor who had known Murphy since 1952, when they worked together on union cases. Ryan’s reputation was of ‘solicitor-cum-Mr Fix-it to organised crime’ and he was facing charges of forgery and conspiracy. The following month a Senate select committee was set up to investigate the authenticity of the transcripts and whether the information disclosed in them constituted ‘misbehaviour’ under section 72 of the Australian Constitution. Under this section, a justice of the High Court could be removed only ‘by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity’.

The select committee was not bound by the rules of conduct for judicial proceedings, and decided to adopt the standard of proof ‘on the balance of probabilities’ required by civil courts, rather than that of ‘beyond reasonable doubt’ obtaining in criminal proceedings. Labor members of the committee were opposed to this. Murphy declined to appear, submitting instead a written statement. He described the committee’s proceedings as ‘an unprecedented intrusion upon the independence of the judiciary’ and a violation of the separation of powers. He asserted that for the committee to seek to call and question a High Court judge was to go beyond any powers that could be reasonably delegated to it under section 72. Certainly no High Court judge had ever before been subjected to such a process—yet section 72 lays down no detailed method of procedure for the investigation of judicial ‘misbehaviour,’ leaving the Parliament free to decide this for itself. The Hawke Government chose to define ‘misbehaviour’ in narrow terms—that it must be related to the performance of judicial functions or involve conviction for a serious criminal offence. The more compelling view is that there is no precise definition of the term and that it is up to the Parliament to decide what conduct constitutes misbehaviour in any given case.

Although the transcripts published by the Age were proved to be records of authentic conversations, the quality of the transcripts and of the one surviving tape were such as to throw doubt on the value of either as an accurate reconstruction of those conversations. At this point, a new and dramatic element was introduced into the proceedings of the committee. The New South Wales Chief Stipendiary Magistrate, Clarrie Briese, reported conversations with Murphy about the charges facing Ryan, during which Murphy was alleged to have asked ‘what about my little mate?’ (an allegation which Murphy always strongly denied). Under the Senate standing orders it was not possible for Murphy’s counsel to cross-examine Briese. Again, Murphy submitted a written statement in response to Briese’s claim. The committee was unanimous in deciding that no finding could be made against Murphy on the basis of the Age transcripts and tape. However, it was split along party lines regarding Briese’s claim, with dissenting reports by Senators Durack, Lewis and Chipp.[14]

In September 1984, a second Senate committee was set up to investigate the Briese allegation. Unlike the first, this committee made specific allowance for the cross-examination of witnesses, but its rules also meant that written statements by Murphy could not be considered. Therefore, if he again declined to testify, the allegations would stand uncontested. The committee drew upon the assistance of two retired NSW Supreme Court judges, who submitted their own reports. Murphy maintained his refusal to give evidence, counsel stating that for him to submit to questioning would ‘create a precedent which … should never be tolerated in the relations between the judiciary and the Parliament’. His counsel also claimed that Murphy’s appearance would be politicised by the impending federal election, and that it would be impossible for section 72 proceedings to be completed before Parliament rose. During the committee’s hearings, Paul Flannery, the judge who had presided over Ryan’s trial, claimed that two days before the beginning of the trial Murphy had invited him to a dinner party where Murphy made reference to a recent High Court ruling on conspiracy. A majority of the second committee found that ‘on the balance of probabilities’ it would be possible for Parliament to find Murphy guilty of ‘misbehaviour’. The retired judges assisting the committee were divided.[15] 

In the wake of the second committee’s report, Ian Temby, the Director of Public Prosecutions, recommended Murphy’s prosecution on charges of attempting to pervert the course of justice. Temby believed that the prosecution was unlikely to succeed: ‘In such a case it may be a justified course to prosecute even if … the case would not have proceeded against an ordinary citizen … it is important that the public have confidence in the courts and public officials generally’. A prosecution in such circumstances would ‘clear the air’. This was a view that Murphy happened to share, welcoming ‘the fact that the allegations will be tried by judge and jury and not by the media’. The process of ‘clearing the air’ was far more protracted and painful than Murphy could have imagined. Murphy announced that he would hear no new cases until the criminal proceedings were completed, but emphasised that he was ‘not standing down or aside’.

In July 1985 Murphy was acquitted of the charge in relation to the Flannery allegation, but was convicted on the Briese allegation. Nearly five months later, Murphy’s conviction was overturned by the New South Wales Court of Appeal and a new trial ordered. At this trial, Murphy accepted, reluctantly, the counsel of his legal advisers, making an unsworn statement, rather than submitting to cross-examination. This course of action met with much criticism, and disturbed some of his colleagues on the High Court. Murphy was acquitted of all charges in April 1986. At both trials, evidence was given by Jim McClelland, Murphy’s friend and former Senate colleague. McClelland referred to a telephone conversation in which Murphy had asked him to approach another judge to seek an expedited trial for Ryan. Only after McClelland’s death in 1999 was it revealed publicly that Murphy had made a second telephone call to McClelland relating to Ryan’s case, and that McClelland had believed the real purpose of both calls to be an attempt by Murphy ‘to intervene to save Ryan’s hide’.[16]

Within four days of his acquittal the National Times published a new claim that, in 1979, at a lunch attended by Morgan Ryan, Murphy had attempted to bribe a police officer. On the same day, the Stewart Royal Commission into telephone interceptions published the first volume of its report and gave the Government a second secret report detailing possible criminal offences. Against this background of renewed speculation about Murphy’s behaviour, the Chief Justice of the High Court, Sir Harry Gibbs, wrote to Murphy suggesting that he resign. Murphy declined. A solution seemed within reach when, at a meeting between Murphy and his fellow justices, it was agreed that Murphy would respond to the National Times claim and the Stewart secret report. He would not resume court duties until the allegations had been answered. Unfortunately, the wording of a statement issued by Gibbs and Attorney-General Bowen suggested that the court itself would be a party to judging Murphy’s conduct. That theme was taken up next day in an article in the Sydney Morning Herald, where it was suggested that Gibbs and most of his colleagues on the bench were prepared to ‘go on strike’ rather than sit with Murphy. Prime Minister Hawke and Bowen had already told members of the Cabinet that a majority of the judges would not sit with Murphy. In response to the Sydney Morning Herald article, Gibbs referred to a ‘misunderstanding’ of the justices’ intentions: the court had ‘no function to perform as to its own composition’. Rather, they were concerned with the preservation of public confidence of the court, and to that end ‘what, if any, part it was appropriate for them as individuals to play’.[17]

Whatever conduct may have been contemplated by members of the court, the Government was now driven to act. With the support of the Opposition, it fell back on an option suggested earlier by Senator Gareth Evans—that of a parliamentary commission of inquiry, consisting of three retired judges. The commission would conduct private hearings into Murphy’s conduct and ‘advise’ the Parliament whether ‘in its opinion’ there was ‘proved misbehaviour’ under section 72. It was not clear to what extent Parliament would be informed of the evidence heard by the commissioners. The Australian Democrats were the only senators to vote against the inquiry, Senator Chipp asking whether ‘we as a parliament are giving to a group of three judges the responsibility that we cannot or are not game to handle here’. By 31 July 1986 the commission had looked into forty-two allegations, found twenty-eight of them to be without substance, and was about to consider the remaining fourteen. On the same day, it was reported that Murphy had inoperable cancer. The commission was terminated following the passing of the Parliamentary Commission of Inquiry (Repeal) Act 1986, its work unfinished. The details of the evidence and the commission’s deliberations remain secret under the Act, including a provision excluding release after thirty years.

Against the public opposition of Chief Justice Gibbs, Murphy insisted on returning to the court, which he did for one week in August 1986. Professor Tony Blackshield has argued that ‘by insisting to the end on his right to sit’ Murphy has left ‘an unforgettable symbol of judicial independence’. Blackshield has also acknowledged the counter-argument: that the integrity of the public standing of the court should have compelled Murphy’s resignation, or removal, rather than allowing the ‘cumulative effect’ of ‘such an aura of impropriety’.[18]

Murphy’s judgments on the two cases argued during that week were handed down one hour before his death, which took place on 21 October 1986 at his Canberra home. He was cremated at Norwood Crematorium, ACT, and a memorial service was held at the Sydney Town Hall, attended by over 2000 people. His three children survived him. Ingrid Murphy died in 2007.After his death, the Lionel Murphy Foundation was established to provide postgraduate scholarships for the study of law or science, and to conduct an annual Lionel Murphy Memorial Lecture. Murphy’s estate was valued at over $1.2 million.

The many parliamentary tributes paid to Murphy after his death emphasised not only his intellect and practical achievements, but also his great personal charm. Harradine, a political enemy, praised Murphy’s ‘magnanimous and gregarious character’, while another political opponent, Andrew Peacock, said that he regarded Murphy with ‘warmth and respect’. Yet there was also extraordinary intensity of feeling against Murphy, acknowledged by Peacock in his comment: ‘It is true that on my side of politics there has been an incessant chase for Lionel Keith Murphy’. As journalist George Negus commented: ‘Provocation … was both the nature and style of the man’. Murphy’s bold volatility along with his heterodox opinions and attitudes aroused fervent admiration among some and profound suspicion and hatred among others. The drama and tragedy surrounding the last three years of his life has worked against a dispassionate judgment of the man and his achievements. If he was not the ‘onlie begetter’ of a revitalised Senate, he was still an essential element in making it happen. Few parliamentarians before or since have combined the intellectual vitality, physical energy and instinctive drive for action that were central to Murphy’s character. The man who rushed headlong into the fiasco of the so-called ASIO raid also carried through substantial legislative reforms in a remarkably short period of time. The extent of Murphy’s judicial legacy is still a matter of argument. No final assessment of his personal reputation can be undertaken unless and until the details of evidence given to the 1986 parliamentary commission of inquiry are opened for public scrutiny.[19]

Geoffrey Browne