Lionel Murphy’s papers go public

The late former judge’s story will be unveiled by the Senate tomorrow.

High Court judge Lionel Murphy with his wife Ingrid after he was acquitted of criminal charges arising from the Murphy affair. Picture: News Corp

Lionel Murphy served as attorney-general in both Whitlam governments. He was appointed to the High Court in February 1975, nine months before Gough Whitlam’s dismissal by governor-general John Kerr. He served on the High Court until his death in ­October 1986.

In 1984, publication of The Age tapes cast doubt on Murphy’s fitness to be a judge. There were then two Senate inquiries into the tapes and other allegations their revelation produced.

After the second inquiry, Murphy was charged with attempting to pervert the course of justice. There were two charges. In the first it was said he had tried to influence NSW chief magistrate Clarrie Briese to help get Murphy’s friend Morgan Ryan discharged from serious criminal charges.

The second concerned a later attempt to influence Ryan’s trial judge, Paul Flannery QC, so he would take the charges away from the jury. It was never suggested Ryan knew what Murphy was trying to do for him.

At his first trial, in 1985, Murphy was acquitted of the Flannery charge but convicted on the Briese charge. He was sentenced to eighteen months’ imprisonment, with a minimum of 10 months to be served.

On his appeal, the conviction was set aside and he was granted a new trial. At his second trial, in April 1986, he was acquitted also of the Briese charge.

Murphy did not sit to hear new cases after being charged. But after his acquittal he got ready to return to judicial duties.

However, Murphy’s jurors had hardly got home after their not guilty verdict when the opposition Liberal-National Party Coalition questioned the appropriateness of his return to judicial duties.

A report of the Stewart royal commission had been held back from release until the end of April 1986 so Murphy’s trials would not be prejudiced. There was a secret volume not released to the press that made a number of new allegations of misconduct against Murphy, quite independent of the charges on which he had recently been acquitted.

The Daily Mirror reported that federal opposition leader John Howard was refusing to rule out further action against Murphy in parliament.

Conceding his party did not have the numbers to vote for Murphy’s removal, Howard predicted nonetheless controversy would follow.

Hawke government ministers, including commonwealth attorney-general Lionel Bowen, predicted there would be more attacks on Murphy but that they would be on political grounds.

In The National Times Alan Ramsey wrote that although the jury trials had cleared Murphy, the parliamentary process had not.

There were findings by the second Senate committee that Murphy was guilty of misconduct, and they had never been debated by parliament. Nor would they, he said, as the opposition wanted to avoid the suggestion of political persecution. As for the Hawke government, Ramsey said it was anxious for the issue to die.

Perhaps if there had been no secret royal commission volume about Murphy, matters might have remained there, and Murphy would have served a peaceful few months of what remained of his life. But the secret volume guaranteed Murphy’s moral fitness to serve as a High Court judge remained a live issue and there were (largely incorrect) stories in the press saying Murphy’s fellow judges were refusing to sit with him.

Though the opposition parties could not force Murphy’s removal, they did what they could to pressure Bob Hawke to set up an independent judicial inquiry, hoping its findings would have that effect.

In the meantime, Murphy made it plain he would never resign.

Finally, prime minister Hawke succumbed to pressure and established a commission of inquiry to be conducted by three eminent retired judges: George Lush (former justice of the Supreme Court of Victoria); Richard Blackburn (retired ACT chief justice); and Andrew Wells QC (former justice of the Supreme Court of South Australia). Stephen Charles QC, later a justice of the Court of Appeal of Victoria, was appointed as counsel assisting.

The commission of inquiry was established by the Parliamentary Commission of Inquiry Act 1986. The commissioners were required to advise parliament whether any of Murphy’s conduct amounted to “proved misbehaviour” within the meaning of that expression in section 72 of the Constitution.

They were to report by September 30, 1986. They were to examine only specific allegations, and Murphy was not to be required to give evidence unless they found evidence of misbehaviour and gave him written notice of the allegations. The commissioners were not to examine the allegations made at his trials unless other matters required it. Their proceedings were to be in private.

Murphy immediately challenged the constitutionality of the commission, also alleging Wells should recuse himself because of comments he had previously made indirectly about Murphy. The challenge, heard by Murphy’s six brethren, was unsuccessful.

The inquiry opened publicly on June 3, 1986. Murphy was present at the opening, with his counsel.

The hearing lasted only seven minutes before going into closed session, where it remained.

Commission staff advertised nationally for anyone with allegations of misbehaviour by Murphy to come forward, putting their ­allegations in the form of statutory declarations.

Press coverage of the commission was spare then until the end of July.

On July 27 it was announced by Laurie Oakes on Channel 9’s Sunday program that Murphy had been diagnosed with a terminal illness. This was soon confirmed by Murphy, who also announced that he proposed returning to sit on the High Court.

His return created friction with the chief justice, Harry Gibbs, and their frank written exchanges of views were released to the public.

Eminent constitutional lawyers including Leslie Zines could see no legal reason Murphy could not return to ­judicial duties.

In the first week of August, 1986, Murphy sat to hear several cases.

In the meantime, there was much public sympathy for Murphy, especially in Labor circles, and Hawke announced the commission of inquiry would be wound up.

On August 20, 1986, parliament passed the Parliamentary Commission of Inquiry (Repeal) Act 1986, repealing the Parliamentary Inquiry Act and making it an offence for anyone to reveal anything about matters being looked at by the commissioners.

The material concerning the Murphy allegations was not to be made available for 30 years.

Murphy died on October 21, 1986, delivering judgments in his last cases just an hour before he died.

The 30-year embargo on release of the commission ­documents expired in September last year.

Since then, Senate officers have taken steps to ensure the ­documents, when released to the public, do not cause unnecessary embarrassment or harm to those still living or their relatives.

Now, almost a year later, that job has been completed.

The Senate has announced that the papers will be placed on its website at 10am tomorrow.

Stephen Walmsley SC is a retired judge and author of The Trials of Justice Murphy.