In September 2017 the records of the 1986 Parliamentary Commission of Inquiry into ‘allegations concerning the conduct of Justice of the High Court, the Hon. Lionel Keith Murphy QC’ were released. The commission was the third official inquiry into the ‘conduct’ of the former Labor senator, attorney-general in the Whitlam government and High Court justice, and had been announced just days after Murphy was found not guilty of attempting to pervert the course of justice. Speaking from the steps of the old Banco Court in Sydney that day, Murphy had thanked the jury, warned against the dangers of ‘private prosecutors and scalp-hunters’, praised the jury system ‘as the protector of us all’, described his trial as a ‘political trial’, and left to take his sons to see Crocodile Dundee.
Within hours of Murphy’s acquittal, it was apparent that the spurned prosecution would not so readily accept the verdict. Those who had pursued him through two trials, one on appeal, who had watched in dismay as first one and then a second criminal charge was dismissed, now refused to accept that the finding of ‘not guilty’ meant exactly that. Notwithstanding the presumption of innocence at the very heart of our legal system, junior prosecution barrister Nicholas Cowdery, still chafing at this lost judicial scalp thirty years later, proclaimed: ‘It needs to be understood that a verdict of not guilty is not in any way a finding of innocence’. As Professor Tony Blackshield has described in his forensic dissection of this material, for Murphy there was no presumption of innocence, only a presumption of guilt. The unsuccessful prosecution team then bundled together the material they had gathered during the course of the trial ‘to attack the character of Murphy’, in Cowdery’s words, and transferred it to the commission of inquiry.
By 1986 Murphy had already faced two parliamentary inquiries and three trials (including the earlier Sankey private prosecution referred to below), and it was clear that no evidence of criminality could be sustained against him, despite the extraordinary efforts to do so. The commission of inquiry, established by the Hawke Labor government weeks after Murphy’s acquittal, was just the latest in this long line of unsuccessful and unprecedented inquisitions. No figure in Australian history has ever faced such a concerted campaign of invigilation and criminal investigation. The commission was to inquire into Murphy’s conduct, specifically whether anything in his conduct, of any nature and at any time, could be seen as constituting ‘proved misbehaviour’ under section 72 of the Constitution. This was a critical focus since there is only one ground for the removal of a High Court justice, and that is ‘proved misbehaviour’. In this way, the commission could go where the court had not, to the less onerous test of ‘misbehaviour’, and pave the way for Murphy’s removal from the bench.
The commission then called for anyone with any allegation against Murphy to come forward—literally an invitation to allege—in order for its exploration of misbehavior to commence. Six weeks later Murphy announced that he was suffering from terminal cancer. The commission was wound up before it examined any of the invited claims against him and its records were embargoed for thirty years. Lionel Murphy died on 21 October 1986.
The publication of a redacted version of these records unleashed a torrent of salacious speculation and revived earlier claims of Murphy’s ‘corruption’, all of which Murphy had consistently denied and none of which had been proved: ‘Murphy papers exposé of the decade’, ‘links to underworld’, ‘explosive allegations’. The commission’s records were widely seen as finally revealing ‘the truth’ about Murphy, which was apparently to be found in the scant and unexamined allegations sent to it during its truncated term. These allegations were all untested—none had even been put to Murphy, since he was dying—and many were clearly baseless, as the commission itself acknowledged. The ‘truth’ about Lionel Murphy was precisely what these papers could never show.
Lionel Murphy was Australia’s twenty-second attorney-general and unquestionably our most reforming attorney-general. Whitlam considered him ‘the most creative and effective legislator that we have ever had as an Australian Attorney-General’. Murphy left a remarkable legacy, with a broad range of law reforms, including the landmark Family Law Act, which introduced no-fault divorce and authorised marriage celebrants; national legal aid; abolition of the death penalty for Commonwealth offences; the Australian Law Reform Commission; consumer protection; liberalisation of censorship laws; enhanced ministerial control of ASIO; action against illegal police telephone tapping; joining with New Zealand in the successful nuclear-tests case in the International Court of Justice against French nuclear testing in the Pacific; the first proposed Human Rights Bill; and the Racial Discrimination Act, without which Mabo No. 1, against Queensland, would not have succeeded and the Mabo case as we know it would not have been possible.
Murphy’s record in government is all the more remarkable since it was achieved in the face of an obstructive and divided Senate. When he entered the Senate for the Labor party in 1961, Murphy had sought to give some relevance to that moribund chamber, long seen as a resting place for ageing party hacks, and mustered cross-party support for a powerful Senate committee system to review complex legislation. In an irony not lost on those who knew this parliamentary background, the same Senate committee system was later used for purely partisan political purposes—as a force of inquisition against Murphy himself.
Nowhere was Murphy’s skill in parliamentary persuasion more evident than in his successful negotiation of the deeply contested Family Law Act. With its passage in 1975, Australia led the way in ending the noxious notion of ‘fault’ in the dissolution of a marriage and brought relief to thousands of women in particular then locked in an unhappy, even a violent, marriage with little hope of escape without also losing custody of their children—since to leave a marriage was to be ‘at fault’ in the breakdown of the marriage. Although fiercely opposed by many religious institutions and key conservative figures, the Family Law Act had widespread community support, with over 70 per cent of people supporting these changes to divorce laws, including a majority of Catholic respondents.
Despite the sectional polarised attitudes to no-fault divorce and the divisions within all parties over its implementation, Murphy guided the Family Law Act through the parliament as a conscience vote. There was no plebiscite and there was no postal survey—just a parliamentary vote. Murphy’s success forty-three years ago serves as a model for how the introduction of marriage equality should have been done.
The polarities around the Family Law Act were profound and despite, or perhaps because of, its successful passage their effects lingered. The head of the National Civic Council, B. A. Santamaria, was one of Murphy’s most vociferous and vicious detractors, describing him as an ‘evil genius’ and the Family Law Act as having reduced marriage to mere ‘concubinage’. Santamaria saw the Family Law Act ‘as a pernicious piece of legislation that made divorce too easy and attacked the sanctity of the family. He called it the most un-Christian law on the statute books and…blamed it for the growth in serious crime, drug addiction, youth homelessness and youth suicide’.
To Santamaria and others on the religious fringe, Murphy had sought to destroy Australia’s ‘Judeo-Christian heritage’ and had ‘legislated into existence the permissive society’ through the Family Law Act and his liberalisation of censorship. Like Santamaria, former NSW magistrate Clarrie Briese is a deeply religious man, a believer in miracles and in the literal rresurrection of Jesus Christ, and a committed creationist: ‘the world as we know it was brought into being by the power of an Almighty God, a God who is infinitely superior to and separate from nature—the world did not happen by chance’. An interview with Briese written up in the journal of Creation Ministries International describes Murphy as having a ‘passionate anti-Christian emphasis’ and his reforms as ‘allowing for super-easy divorce and opening the gates to a flood of pornography’. Murphy’s ‘anti-Christian bias’, the article claimed, had ‘provided [the] foundation for high level corruption’.
Others held a less doctrinaire view. Professor Manning Clark recognised in Murphy a fundamental and consistent secular humanism in his description of him as ‘a man who believed passionately that the morality of Judeo–Christianity had ceased to be relevant…and strove to end the domination by God over human beings’.
Murphy’s appointment to the High Court by the Whitlam government in early 1975 led to a predictable political outcry. Liberal back-bencher W. C. Wentworth sent a telegram to the governor-general demanding that he refuse to swear Murphy in as High Court judge until the House of Representatives had ruled on his ‘fitness for office’. The chief justice, Sir Garfield Barwick, himself a former attorney-general, in the Menzies Liberal government, was splenetic with rage. To Barwick and his conservative colleagues Murphy was not a fit and proper person for the High Court.
As he had in the Senate and in government, Murphy left an indelible legacy on the bench as an iconoclastic innovator, with a catalogue of radical judgments that overturned decades of legal reasoning, much of it since adopted by the court as the new norm. Murphy was the first justice to articulate the now accepted doctrine of implied rights, and his judgments consistently rested on foundational conceptions of the rule of law in a democratic society—the right to a fair trial, freedom of speech, and the right to legal representation. Murphy’s judgments were grounded in his concern for justice and equality before the law, and from the bench he denounced tax evasion, the use of police ‘verbals’ in New South Wales, and the absurdity of blind adherence to the doctrine of precedence, which he described as ‘eminently suitable for a nation overwhelmingly populated by sheep’.
No single judgment embodies Murphy’s approach to law and justice more than his powerful and evocative judgment in the Neal case. Percy Neal, council chairman and community leader in the Yarrabah community in Northern Queensland, had been convicted by a Queensland magistrate of assault by spitting at the white store manager during a dispute over rotten meat, and sentenced to two months with hard labour. Neal appealed to the Queensland Supreme Court, which dismissed the appeal and increased Neal’s sentence to six months’ imprisonment. In Neal’s subsequent appeal to the High Court, Murphy found in favour of Neal and delivered an excoriating judgment with a blistering recitation of the history of racism in Queensland in general and in its legal system in particular. Quoting Oscar Wilde’s The Soul of Man Under Socialism—surely the first High Court judge to do so—Murphy 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. …Mr. Neal is entitled to be an agitator.
It was an approach that earned Murphy few friends among the highly conservative judicial establishment. In NSW Supreme Court justice Dyson Heydon’s view, Murphy ‘treated judicial work as an act of uncontrolled personal will’. Heydon was certainly not alone in this view among the judicial éminences grises that Lionel Murphy was scarcely a lawyer at all, and from the moment Murphy went to the bench it was openly said among conservative politicians that he ‘would not survive on the High Court bench’. Within months Murphy faced the first two of four criminal charges he would face over the coming years when he and three other former ministers in the Whitlam government, Jim Cairns, Rex Connor and Whitlam himself, were charged in a private prosecution brought by Sydney solicitor Danny Sankey with ‘contravening the Commonwealth–State Financial Agreement’ and ‘conspiring to deceive the Governor-General [Sir John Kerr] in the performance of his duties’.
The Sankey case was always political, based in the febrile politics and lasting divisions over the dismissal of the Whitlam government. Had Murphy been convicted it would have provided the grounds for his removal from the High Court under section 72 of the Constitution, for ‘proved misbehaviour’. The first charge was found not to exist in law, and the case ended with the acquittal of all four former Whitlam government ministers in November 1978, after which Murphy discussed with solicitor Morgan Ryan the possibility of pursuing the then Liberal attorney-general, Robert Ellicott, for malicious prosecution. Costs were ordered against Sankey and were paid by an unknown donor. Ryan, who would later emerge as the key figure in the ‘Age tapes material’, was the solicitor for Jim Cairns in the Sankey case.
The genesis of Murphy’s destruction can be found in the entrails of the Sankey case, in an illegal telephone-tapping operation by NSW police. Unknown to any of the participants, telephone conversations of at least one of the defendants, Murphy, and at least one of their lawyers, Ryan, were illegally recorded. The extent of this illegal police operation was extraordinary. It began in 1969 at the direction of NSW Police Commissioner Norman Allan and continued for more than sixteen years, involving over 120 police, including the notorious killer Roger Rogerson. A small amount of material from this illegal operation was published in February 1984 in The Age in a front-page story headlined ‘Secret tapes of a judge’. The material collectively known as ‘the Age tapes material’ was impossible to verify: voices on the four tapes and in the hundreds of pages of transcripts were not identified, and the material itself—whether tape, transcript or summary—could not be authenticated. The Stewart Royal Commission into the illegal tapping operation reported that even the identity of the person contacted by the target whose phone was tapped could only be determined by slowing the tape and counting the clicks as the phones connected, a crude endeavour that often led to errors and false attribution. Nevertheless, the lurid headline ‘secret tapes of a judge’ and the fevered speculation before Murphy was ‘named’ as the judge in question were immensely damaging.
The Age tapes set off a chain of allegation and parliamentary investigation that led ultimately to Murphy’s trial on two counts of attempting to pervert the course of justice—first in relation to NSW Chief Magistrate Clarrie Briese during Ryan’s committal, and secondly in relation to NSW District Court judge Paul Flannery, who was presiding over Ryan’s trial. There is no doubt that the prejudicial atmosphere constructed through the publication of the Age tapes played a key role in Briese’s decision to appear before the first Senate commission of inquiry. Briese claimed that Murphy had, four years previously, tried to influence him with the words ‘Now, how about my little mate’. Murphy denied both the conversation and that he ever used the word ‘mate’. Briese later conceded, in the interview published in the Creation Ministries journal, that the Age tapes material had been critical in his revised understanding of this alleged conversation and in his decision to come forward: ‘Reading the full transcript, says Clarrie, “It was clear to me that there was in fact a substantial network of corruption at work, which crystallized my previous fears and unease”’.
Briese told the Senate inquiry that he took these alleged words from Murphy as a reference to Ryan’s committal proceedings, which Briese himself was not even hearing. Briese said that, although Murphy had not actually said so, he now believed that Murphy intended for him to approach the magistrate hearing Ryan’s committal for the benefit of Ryan. This was ‘the Briese allegation’ of which Murphy was acquitted on appeal. He had earlier been acquitted on the Flannery charge.
The repeated claims of Murphy’s ‘corruption’ rested on the Age’s devastating front-page story more than thirty years ago, the core premise of which—the authenticity of the Age tapes material—was itself false. These illegal, scratchy, at times inaudible, indecipherable tapes, transcripts and unidentified summaries had been in existence for several years. Murphy was alleged to feature in just one tape and his name was mentioned in five of the 532 pages of assorted transcripts and summaries of transcripts. The journalist Bob Bottom had hawked these unreliable scurrilities to several media organisations, including The Sydney Morning Herald, which had refused to have anything to do with them—for the simple reason that they could be neither corroborated nor authenticated.
Soon after the tapes’ public airing the NSW solicitor-general, Mary Gaudron, advised the NSW government that the Age tapes material was ‘unsafe and unreliable’ and of no evidentiary value. Gaudron also recommended that action be taken against any member of the police found to have been involved in the illegal police wiretapping. The NSW solicitor-general’s view of the Age tapes as fundamentally flawed was confirmed by no fewer than three subsequent inquiries. Ian Temby QC, the director of public prosecutions (DPP), was similarly asked by the Hawke government to investigate whether the Age tapes material could be authenticated and if so whether it revealed any possible federal offences. In a particularly damning report, Temby said that ‘the voices on the tapes could not be proved’ and that it was not even possible to prove ‘that the tapes or transcripts, or any part of them, are of actual telephone recordings’. The Age tapes could not be relied upon ‘as authentic, unedited or untampered with versions of conversations’. Temby concluded, as Gaudron had also, that the only criminal offences revealed were by those police who had undertaken the illegal tapping. Although both Temby and the government wanted this report released, which should have ended the public fascination with and accusations based on the Age tapes, on the insistence of the Australian Federal Police it was not.
At this point the Age material should have been discarded, recognised as discredited and used for no further purpose other than to prosecute those police who had illegally taped the conversations of a High Court judge among many. Yet it continues to resurface, like the Cape Fear of illegal surveillance material, and, despite its complete deracination, it lies at the heart of the recently released commission of inquiry’s papers on Lionel Murphy. Of the forty-one ‘allegations’ contained in the commission’s records, more than half are based on a strangled reading of the ‘unsafe and unreliable’, illegal Age tapes material.
A strange alchemy emerges here in which these now discredited and near-incomprehensible verbal fragments are effortlessly refashioned into concrete evidence of Murphy’s corruption:
Ryan: Well don’t forget every little breeze… Every little breeze to be told. That those other it’s very simple to three, when, if ever, and how’s it going to be done… The Lush or is it going to be the three, board of three… And don’t forget those pinball machines.
Murphy: Yeah, OK, terrific, right.
Allegation 21: The Lusher-Briese Conversation
‘Why was the Judge involving himself in the Lusher Board of Enquiry’s activities into the legalization of casinos in New South Wales? Why was he doing so at Morgan Ryan’s request? What was the Judge supposed to do? What does it all mean?’
Well, exactly: what on earth does it all mean? And how could this cryptic exchange, in which an unidentified person alleged to be Murphy said just four words—‘Yeah, OK, terrific, right’—be read as Lionel Murphy ‘involving himself in the Lusher Board of Enquiry’s activities into the legalization of casinos in New South Wales’? It was simply absurd.
The commission’s public call for allegations of misconduct against Murphy was open ended and unbounded—anyone with a grievance or with political antipathy or personal enmity towards Murphy could come forward. And they did, at times ludicrously so. What is perhaps most surprising, given Murphy’s uncompromising and at times polarising reformist agenda, is that only forty-one such allegations emerged—and most of those came from an amalgam of the regurgitated Age tapes and the material provided by the unsuccessful prosecution team.
Most of the allegations, twenty-eight in all, were immediately rejected by the commission itself as baseless, entirely speculative, mere assertion or ‘a complete fabrication’. These included claims that Murphy was ‘a member of a Soviet spy ring operating in Canberra’, that he had secret Swiss bank accounts—in partnership with Gough Whitlam, no less—and that he had facilitated the importation of pornography. Nevertheless, each of these claims, including those that the commission had already dismissed, was elevated to the standing of an ‘allegation’—given a formal title and an allegation number. The failure of journalists to recognise this nuance simply continued the pattern of error and distortion swirling around Murphy and that pervades the history of ‘the Murphy affair’.
That Murphy’s political and legal agenda was intricately connected to the allegations against him is at times stark. Take for example the single letter from an unnamed ‘citizen’ claiming that Murphy’s ‘continued persistent dissenting judgments’ constituted ‘proved misbehavior’. This single page with its risible anonymous claim was immediately discarded by the commission, yet it was duly given an allegation name and number: Allegation No. 38—‘Dissenting Judgements’. This then became one of the ‘41 explosive allegations’ against Murphy proclaimed by journalists on the release of the commission’s papers.
Nothing reveals the extent to which the prosecution of Murphy had descended into persecution than the fact that Murphy’s statement, made on the steps of the old Banco Court after his acquittal, that his trial had been a political trial now resurfaced in the commission’s papers as ‘Allegation No. 28—Statement after Trial’, which contended that Murphy’s remark ‘constituted misbehaviour’.
And so, the ever-diminishing ‘explosive allegations’ against Murphy had been reduced to this: that a public comment by Murphy about his own trial could somehow be read as evidence of ‘proved misbehaviour’. And in the end, that was all it ever was: a series of disputed, unsupported and unremarkable comments refracted through the powerful prism of the presumption of Murphy’s ubiquitous guilt.
Even his most zealous journalistic prosecutors now concede that there was never any evidence of criminality; ‘no evidence ever emerged of direct requests by Murphy to any of the judicial figures involved. It was only ever a matter of their professional interpretation of Murphy’s hints and suggestions’. This is a truly shocking admission: that for all the years of claims, investigations, parliamentary inquiries, criminal proceedings and allegations of criminality and corruption, Murphy’s ‘crimes’ never amounted to anything more than ‘hints and suggestions’. The release of the commission of inquiry’s papers have added nothing more to this illusory ‘network of corruption’ and confirmed only its ultimate unsustainability. Lionel Murphy’s powerful legacy of political and legal reform and defiant concern for justice will endure long after the chimera of allegation has passed.
 Senate Select Committee on the Conduct of a Judge (August 1984); Senate Select Committee on Allegations Concerning a Judge (October 1984); Sankey v Whitlam et Ors. (1978) 142 CLR 1; R. v Murphy (1985) 158 CLR 596; R. v Murphy (1986) 5 NSWLR 18.
 David Marr in Jenny Hocking, ‘A cloud over journalistic standards’, Sydney Morning Herald, 26 January 1999.