Breaking up is hard to do
Breaking Up Is Hard To Do is a podcast about the human drama behind family law — and the court system that is asked to manage it. Hosted by Michael Brown, a Sydney solicitor with decades of experience, the series explores love, separation, parenting disputes and property battles, alongside the bigger story of how Australia’s Family Court and family law have evolved over the last fifty years. Each episode mixes legal history, real-world insight and thoughtful conversation to examine what really happens when relationships end — and how the law tries (and sometimes struggles) to deliver justice.
Breaking up is hard to do
Lionel Murphy part 1- reformer, judge and rabble-rouser
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In this episode, we examine the life and career of Lionel Murphy — from barrister and Labor senator to Attorney-General in the Whitlam Government and later a Justice of the High Court.
The episode covers his role in major legal reforms of the 1970s, including the introduction of no-fault divorce and the creation of the Family Court, as well as the controversies that emerged later in his career.
Featuring interviews with Cameron Murphy MLC and academic Dr Ryan Kernaghan.
Join us next month for an interview with the Hon Michael Kirby, former Justice of the High Court of Australia, about his friend and mentor, Lionel Murphy.
Young 'cause if you go Breaking up is hard to do.
SPEAKER_04Thanks again to Neil Sadaka for writing that. It almost feels like he had this podcast in mind when he penned it back in the early sixties and he re-recorded it in 1976. With his impeccable sense of timing, sadly, Neil passed away on the twenty seventh of February of this year, on the day before this podcast was launched. So this is for you, Neil. Let's hope that you're listening wherever you may be. Welcome to episode two of Breaking Up Is Hard To Do. Let me turn from one great departed soul to another. In the last episode I looked at the introduction of No Fault Divorce, one of Lionel Murphy's most significant achievements and one of the most important legal reforms in modern Australia. So this is the story of the man behind the change, Lionel Murphy, Senator, reformer, attorney general, judge, and rabble rouser. In this episode, we are going to hear about Murphy, the politician, the attorney general, and the High Court Judge, but we're also going to hear about the man, the father, and the friend. First up, let's hear something of what the Australian Dictionary of Biography has to say about Lionel Murphy.
SPEAKER_00During the nineteen fifties, 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. In 1961, he was elected to the Senate, his term beginning in July 1962. 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. Murphy's greatest political achievements were as Attorney General, although even that assessment is contentious. He initiated the Death Penalty Abolition Act, 1973, and established the Australian Law Reform Commission. 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. The Family Law Act, 1975, simplified divorce proceedings to sanction the no-fault, irretrievable breakdown of marriage established by twelve-month separation. In 1973, Murphy had secularized marriage through the authorization of civil celebrants. On 10 February 1975, Murphy was appointed a justice of the High Court. 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 Goff Whitlam that Murphy was, quote, neither competent nor suitable for the position, end quote. In his final years on the High Court, Murphy fought serious allegations of impropriety. Prosecuted on two charges of attempting to pervert the course of justice, Murphy was acquitted in April 1986. He announced his intention to return to the bench. Exhausted and ill, Murphy nevertheless returned to the High Court for one week in August. The Murphy affair, built around flimsy evidence and innuendo, became a witch hunt, but it highlighted Murphy's injudicious social dealings. Murphy died of colon cancer on 21 October 1986 at his home in Canberra.
SPEAKER_04Cameron Murphy is the son of Lionel Murphy. He was thirteen years of age when Lionel Murphy died in 1986 at the age of 64. Apart from being Murphy's son, Cameron Murphy has had a distinguished career of his own. He's a member of the New South Wales Upper House. He's a former president of the New South Wales Council of Civil Liberties and a barrister. Cameron Murphy, welcome to the podcast. Thank you. If we look at your C V, you clearly have a passion for the law, civil liberties, politics, social justice. Um how much do you think those passions owe to your father and his legacy?
SPEAKER_03I mean, uh I just remember uh even at home arguing with my mother, who was the disciplinarian in our household. And when I was as young as eight years old, I'd be advancing human rights arguments, saying, you know, you can't treat me like that. There's the International Convention on the Rights of the Child that says this, this, and this. Yeah, and really that understanding all came from uh observing, talking to, arguing with my father. And that led to my career in later life being heavily involved in human rights. Yes.
SPEAKER_04Well, your father was, by all accounts, an abuleant man who was really a polymath, interested in all sorts of things, not just the law. He had a deep and abiding interest in science, for example. He did a science degree way back, I think, in the 1940s, but he maintained that interest throughout his life. Is that how you remember your dad?
SPEAKER_03Absolutely. Yeah, you know, if uh he was around today, he'd be amazed to see the internet and information technology because he was always uh a first adapter who'd run out to look at any new invention, any new discovery. Uh, you know, I think we had a uh, you know, about 500 gadgets to open wine bottles. The newest and latest invention would be sitting there at home. He loved science. He'd rush out to get the newest thing, and then he'd be explaining how it worked and why it was so interesting and wonderful to him. Certainly, science was something that stayed with him and influenced him throughout his entire career.
SPEAKER_04So, of course, he was a very um successful practicing barrister before he entered politics in 1961 or 1962. He sat on a practice at the bar at 1947. How much do you think his experiences as a practicing barrister through the 40s and 50s and 60s homed the skills that he later brought to politics? And indeed, how did his experiences at the bar, which was mainly at the industrial bar, do you think change his politics or help develop his politics?
SPEAKER_03Yeah, I think it was crucially important. I mean, he came from a caught a middle-class uh family. My grandfather, his father was a manager of several pubs around Sydney, and he was the only person in his family that was able to go to university out of several kids. Uh he was the brightest one, the youngest one. And uh being at the bar, I think, was crucial in terms of giving him that understanding of the law. Uh, he was motivated to uh go there really because uh he saw the law as an incredible device and a way to change the world for the better. And being at the bar, I think, certainly honed those skills that were then very useful in politics. Uh and it's not simply uh the ability to speak or to convince people of an argument, it's the understanding of how legislation works in practice, which gave him the ability to negotiate in a way few other people in parliaments have been able to, where you can make live amendments on the spot to legislation because you know exactly how that's going to play out later in a courtroom?
SPEAKER_04I suppose leads neatly into the next phase of his career as a senator, and not only as a senator, but as also an important figure within the Labour Party developing the policies which uh ultimately brought them to an election victory in 1972. What part do you think Lionel Murphy played in the Labour Party's reinvention of itself, which ultimately led to the 1972 election victory?
SPEAKER_03Well, I I think it was a very important part in terms of the policy and that policy connecting with ordinary people. A lot of the detailed policy work on issues that were uh going right through society at the time, whether it was opposition to the Vietnam War and uh the moratorium marches, whether it was policy on abolishing the death penalty, or practical things to treat ordinary people in a better way, that led to the Trade Practices Act and the Family Law Act, which was simply about treating ordinary people with decency and dignity and recognizing that the law should be there to work for them rather than the other way around. And uh I think that work was absolutely crucial in terms of building the platform that then ultimately won them the election.
SPEAKER_04It's sometimes said that one of the reasons that Lionel Murphy was such an effective Senate leader was that he wasn't intimidated by Gough Whitlam as many people were.
SPEAKER_03Um do you think that's right? Yeah, I I think it is right. He's somebody who always stood up for his principles and knew what was right. He'd do an enormous amount of reading about an issue, he'd meet with people, talk to them, and by the time he'd formulated policy, he knew it was policy that would withstand criticism because it was well developed and properly formulated.
SPEAKER_04Still on the issue of the Senate, one of the contributions that your father made was making the Senate a more effective part of the legislative process. Do you have any reflections on that?
SPEAKER_03Yeah, it absolutely was. I've got a house full of books about American politics and American systems of government and the Supreme Court in the United States that I've inherited from him. And it's very uh clear that he was looking at that model and seeing that there could be a very positive role played by our Senate, which in part is modeled on the US, and he saw the effectiveness of the committee system there and wanted to replicate it in Australia. Prior to that, the Senate just met, but it really didn't initiate anything and wasn't really acting properly as a house of review, uh, something that the committee system that he formed allowed it to do, where uh on a particular issue or in terms of a bill, uh you could hold committee hearings and invite members of the public and stakeholders to come in and share their views.
SPEAKER_04I suppose in the Australian context in the 60s, that meant him negotiating and having productive conversations which with you know a group which was in most respects the the arch enemy of the Labour Party, which was the Democratic Labor Party.
SPEAKER_03It goes to show that even your arch enemy, you'll often have something in common with them. So if you focus on the things that you might be able to do with them rather than the fights you inevitably know you're gonna have, then it demonstrates that you can get things passed. And I think in that era leading up to the Whitlam government and during it, they'd consulted so widely about the changes that the Whitlam government had in its platform when it won government that it was no surprise to anybody what they wanted to do. And as soon as they were in government, they literally set about implementing all of their election commitments.
SPEAKER_04Well, I think a prime example of that is the Family Law Act. There was very wide consultation with the community, and of course, there was very widespread public support for reform of the family law system and both folk divorced. And of course, ultimately, when that was voted upon, after what I still think is one of the longest debates there's ever been on any bill in the federal parliament, it was a conscience vote. So that's a good example of uh that kind of preparatory work and consultation, not just in within the parliament, but within the broader community that you're talking about.
SPEAKER_03Do you agree with that? Absolutely. That's what he did, set out and talked to people. And with all of those highly contentious issues where people might have a personal view, a religious conviction, it's really important that we retain a conscience vote so that people aren't bound by a party position, because you can often end up with a very slim majority of a party binding the entire party against sensible reform. And if you allow a conscience vote on those issues, then people who might have a deeply held religious view are able to preserve that. But ultimately their vote won't stand in the way of sensible reform.
SPEAKER_04Your father had a reputation for moving fast and pushing hard. Was that just his personality, or do you think he worried that reform would die if it slowed down?
SPEAKER_03Yeah, I look, I think it's a couple of things. He was always like that. So he used to see an issue, come up with an idea, latch onto it, and and move forward very quickly on it. And that was just part of his personality, an incredible drive to not waste a moment and to get things done. But I think the history that people need to understand is that the Labour Party was out of government for decades. And there was a build-up of issues. And I think there's also an urgency to moving quickly to correct the problems. And some of them were serious problems. You had people who were conscientious objectors against fighting in the Vietnam War that were sitting in jail and they needed to be released immediately, and the government wasted no time. It had to get on with its legislative agenda.
SPEAKER_04So one of the criticisms that sometimes made of the Whitlam government, and I suppose the legislative program that you've already talked about, is that they tried to achieve too much too quickly. Do you think there's anything to that criticism?
SPEAKER_03Well, personally, I don't. If you look at the Whitlam government example, I mean it was a very short government, less than three years in power, but made changes that are still there today.
SPEAKER_04I had a little clip of your your dad talked, I think, to Four Corners or something back in 1974 where he says that the reforms that he was putting forward would make divorce cheaper, more efficient, and less and serious, something along those lines. And as a family lawyer, I can tell you that that's not really a very accurate description of the system today. Do you think there was something of a naivety in your father's approach? In that legislation's one thing, but human nature's another.
SPEAKER_03Well, look, I'd I'd counter it by saying that that's obviously not the experience of people at the point end of it. But for people who aren't in that, people who are sensible, who arrive at agreements about property distributions and dealing with the children, it probably is. It's a bit unfair to compare it to a system where in the past everybody had to go through court and in order to prove a matrimonial fence if there wasn't one there. So I think it's made a significant improvement.
SPEAKER_04Do you think your dad expected that the family court and the family law system would be a thing of controversy? Or did he expect that the reforms he instituted really would, you know, would have such a wide appeal that that issue would sort of sink into the background?
SPEAKER_03Look, I I think he thought it would be an improvement on the situation that was there, which it it absolutely was. And and it's it really, it's not just the family court, but it's things like civil marriage celebrants, where you know, prior to that you didn't have the ability to have a civil celebrant conduct your service.
SPEAKER_04So when he became a high court judge, there was a lot of criticism of that at the time. People said, well, it threatened judicial independence being appointed directly as from being attorney general. Do you think there was any substance in those criticisms?
SPEAKER_03No, not at all. I mean, the High Court particularly, a number of the judges had been appointed under similar circumstances. If you go through the history of the High Court, many of them were politicians or involved on the periphery of politics. I think it's it it's an important thing. The reason why it's so important is because uh people who've been involved in politics have a much better understanding of people's ordinary lives, and they have an understanding of how uh decisions of the High Court can change public policy around the the nation.
SPEAKER_04Well, I mean it it it's quite a different role he stepped into being a high court judge as opposed to the Attorney General. And I suppose in some respects, you know, if we talk about the establishment, how much more of an establishment role is there than a high court judge? Do you think being a high court judge changed him, or or he just evinced the same sort of instincts and ideas and I suppose values as a high court judge as he had really as attorney general and member of the Senate and look, I think the same values came through in terms of the work in the High Court, and you can see that from the way that he approached it.
SPEAKER_03Some of the things that you can see are you know his judgments are extremely short and they're easy to read and accessible, where in every judgment virtually he would set out the basic facts of what's going on in plain English. And then he would set out the principles of law that are being considered, then he would arrive at a decision, and it's something to me that really I think came from his science background, where you're running an experiment. You start with the aim, uh, you know, the methodology, the results, and the conclusion. And you know, he borrowed heavily from other jurisdictions where if sensible people in the United States, somewhere he went to for a lot of assistance, had already decided an issue and had come to what was regarded as the right result, then he had no hesitation in utilising the legal work that was done. And I think that was a real breath of fresh air. He also brought through his passion for the environment and for international law.
SPEAKER_04I just want to ask you about when your father was on the high court, of course, he faced very serious allegations, which were ultimately dismissed, and they played out very publicly. Were the allegations fair and and what kind of toll did they take on him and the family?
SPEAKER_03Yeah, they were they were grossly unfair, and they took an enormous toll on the family. And uh, you know, there was a concerted campaign to remove him from his position, and it was uh horribly unfair. It was designed to get him, and uh ultimately it did, because it was an enormous toll on the family. I mean, uh, as a child, this would just be in the news constantly. There was a period of about three years where every day there would be a ridiculous story in the newspaper about something that he was alleged to have done wrong, most of which was absolute garbage. You know, they ended up having two parliamentary inquiries. Uh the Uh evidence from those were released ultimately, but you had people, someone claiming that he was responsible for light aircraft crash in South Australia. Just absurd and ridiculous allegations. The process of a witch hunt designed to get rid of him. In the family, it was an incredibly stressful period where we were dealing with that every day of our lives for uh about three years. I'd be teased about it at school. Friends wouldn't talk to you uh because of this.
SPEAKER_04So as you pointed out, at the end of yeah, well, really, whilst this process was still swirling around in some respects, your father died quite young at the age of 64. And at that point, he probably had a lot more to do. Um do you ever reflect upon the work that he didn't get to do? Uh and you know, what are your thoughts about that?
SPEAKER_03Yeah, well, you know, I I imagine that he would have been on the court for a a much longer period. I mean, he's one of the last life appointments to the High Court, so he could have been there. McTiernan into his nineties if he wanted to.
SPEAKER_04And hopefully not like McTiernan by the time he was into his ninety, but I get the point.
SPEAKER_03Yeah. Well, you know, that's uh a possibility, or perhaps he would have uh been elevated to Chief Justice of the Court. The court changed because of the powerful arguments in his judgments, but ultimately he achieved that. Once he was gone, the court was prepared to move in that direction. And I think it's a very important legacy. And it demonstrates how important and influential one logical, sensible voice can be in a court of seven. You can influence the rest of the court, even if you don't do it at the time you're there. But you can change the thinking and you can change the results in these issues.
SPEAKER_04Cameron Murphy, thank you so much for your time this afternoon, and thanks for joining us in the podcast. Thank you. It's been a pleasure. I also spoke to Dr. Ryan Koenigan, who's a lecturer in law at the University of Wollongong, and whose PhD thesis was intriguingly entitled Changing Methods of Interpretation in the 1970s, the staging of opera and the jurisprudence of Justice Lionel Murphy. I asked Ryan Koenigan what the staging of opera had to do with Lionel Murphy.
SPEAKER_02I thought, well, why not bring the two together in a way that might actually tell us something interesting that was going on, particularly in and around the 1970s and the time when Murphy really butted against so many of the things that you know had been set up before that time. So um, yeah, it became a really interesting um way of you know delving into that subject in a new way. There were a lot of changes going on in opera around the same time, and they provoked some similarly vitriolic kind of reactions from the opera establishment that Murphy did with Law. So it was really just a fantastic opportunity to see a synergy between those two seemingly disparate fields.
SPEAKER_04Yes. Well, you talk in your thesis about particularly the staging of Wagner at the Bay Ruth Festival, and it did seem that it had got to a rather kind of you know stoltifying and somewhat kind of boring impasse by the late 40s, early 50s, and then suddenly you had a a number of opera directors who came onto the scene, including Wagner's grandson, who sort of shook everything up and made everything a whole lot l more interesting, which didn't please a lot of people, although interestingly, some of the people who were upset about it at first later acknowledged that that sort of needed to happen. The analogy, I suppose, the metaphor to law of which you specifically focus on Murphy is that, and we'll get on to this later, that there was certain um a certain way of judicial interpretation that was quite narrow, I suppose, in in some ways. And you talk about a lot of jurisprudential scholars, including Julius Stone at Sydney University, who were part of that movement, to to shake that up and to look at sort of social circumstances and the law wasn't just a narrow interpretation of the actual words from perhaps a hundred years ago. So I think am I right in saying that that's really the commonality or the metaphor of one area of life to another that that you sort of hooked on to.
SPEAKER_02That's right.
SPEAKER_04Opera gives as an opportunity to see what Murphy was doing. So let's just turn on to Murphy specifically. In your work, you describe Murphy as radical, as many people have done, but you also talk about the original derivation of that word in the sense of forming part of the root or the essence or the origin of the thing. Yes. And you you you go on to talk about Murphy's concerns with basic or fundamental aspects of universal justice, so putting them in that context. Do you want to comment more about that? Yeah, sure.
SPEAKER_02So I think one of the things that is is always interesting when you are studying radicals more broadly, where they might seem so provocative and really challenging legal orthodoxy, but quite often when you do a deeper dive on their work and particularly their judgment writing, you see them actually appealing to a more universal sense of justice or even natural law and things of that nature. I think that was that was one of the really interesting parts of it was to see just how much he would actually, for example, look at people like Blackstone, or he would, you know, look to ancient examples. He was someone who would refer occasionally to Cicero and these sorts of figures. So there was a sense of the classical, there was a sense of the natural there, which makes those radical types, I think, quite interesting because people will often just ignore that.
SPEAKER_04Others who I've spoken to have described him to me as a polymath and have he had a huge interest in science, for instance. According to some legal theorists, it is the legal opinions of judges as expressed in their judgments that matter, and any focus on the individual themselves and you know what might have motivated the views they have or the judgments they give is really entirely irrelevant. Do you agree with that?
SPEAKER_02Uh well, no, I don't agree with it. I suppose it's that was a a key part of the work I did in the thesis, but also my interest in my research more broadly, you can't separate the man from, you know, his life and his life experience. It was there. And, you know, as Carfield Barwick had remarked, that you know, he's a man, Murphy, who you you just can't separate him from his politics, for example. It wasn't just the politics, it was his it was all those things that had made him almost like a polymerth, you know.
SPEAKER_04Well, I mean, of course, Barwick said that as a criticism, didn't he? Whereas you you would say, well, that's not uh that's true, but it's not ri necessarily or actually a criticism, is that right?
SPEAKER_02Well, I mean, for me, it's interesting, you know, because I mean obviously I was fascinated by Murphy as a judicial figure in particular. Um, but I always was careful not to sort of get into that point of being uh I suppose the advocate so much for him. I really took quite a quite a significant look at Barwick himself because it was such a big part of seeing the that, you know, you know, clashing of the those two heads. They were just and and obviously it was deeply political.
SPEAKER_04Just by way of biographical detail, which I'm sure you know, Ryan, but my listeners don't necessarily know, Murphy was born on the 30th of August 1922 to what appears to be an upwardly mobile, enterprising, and entrepreneurial Irish working class family, uh, and who ultimately had the wherewithal to send Lionel to Sydney University, which was somewhat unusual in those days, where he originally studied science and later studied law. In your thesis, you comment on the formative events in Murphy's early life, and I think one of the most important of those was the death of his brother, Keith, from tuberculosis in 1939. In fact, according to Jenny Hawking, he actually changed his second name to Keith because of that. Are you able to comment on how you think Murphy's early life and early career affected him and his approach as a legislator and later as a judge?
SPEAKER_02One of the so one of the things that really uh struck me was almost like this cumulative force in his life. You know, he was always driven by the next series of experiences, you know, and it really it was almost like crashing waves going into the next waves and drawing him along in life. Particularly, you know, his mother dealing with some horrible tragedies, not just with the loss of Keith, but also with um Lionel's sister Glory, and the reaction from the priest at the time, which was that it was almost, you know, her lot considering that you know they weren't going to church enough and all these sorts of unpleasant experiences, but also a deeply rational humanist kind of upbringing, you know, with his father going to the Soviet Union in in the 30s, and you know, that's just quite extraordinary. So so all of that really influenced, you know, the kinds of interests he had. You know, he went, as you said, he did science, his brother was a pharmacist in training, you know. The the law was that sort of sense that he wanted to prove a point, you know, like there were often stories when he was a young man, he would get into arguments and he he wouldn't be happy to move on until he's kind of proved his point. So law was always a very natural path for him, and yeah, and and you know, the political part of him was there too, because you know, he was involved in student advocacy and things of that nature.
SPEAKER_04Well, I mean, you talk about you know his student advocacy, and the earliest example that I've seen of that in your work and in Hawking's work is this protest that he went on in 1944 against uh censorship. This is in the middle of the wall, and Arthur Corwell was confiscating the Sydney Morning Herald for saying some things about him that he didn't uh like. Yeah. But that commitment to civil liberties, it's it's there fairly early on, is it not?
SPEAKER_02Oh yes. Yeah, definitely. And and you know he was making speeches as part of a student uh union or student representative council. He was getting into these things, the opportunities to orate and to you know vocalise a certain discontent with and it was always there, that real resistance against anything that tried to limit individual liberties. I think in many ways uh it it really influenced his interest in law at that early point, too, was you know the extent to which law can be made as a force for change, but also more importantly, I guess, how it can be a force for good in in people's lives and to you know make sure it's actually serving people.
SPEAKER_04Well, I want to ask you a few things about him as an advocate. I know that's not the focus of your work, but of course you do mention this a number of times in your thesis. And I think it's interesting that really, I mean, Murphy remained an advocate right up almost to his appointment to the High Court. I mean, he would, as Attorney General, he appeared in the High Court, as I understand it himself. One interesting incident that you talk about in your book is how he represented Martin Sharp and the other editors of the New South Wales University newspaper when they were charged with obscenity in 1962. Uh so do you want to talk a bit about that aspect of Murphy's life or that case in particular?
SPEAKER_02Certainly that's the sort of thing that always attracted Murphy because he loved anything that was going to involve questions of civil liberties. But more broadly, um one of the other really interesting, I mean there were a fair few really interesting one. There was the the famous Shirley Barger case in the 50s that he was involved with because of the use of uh scientific evidence in a trial, which was a lot less heard of in those days. But also the one that really drew me in a lot was uh his advocacy in King and Jones, which was a high court we're talking about September 72.
SPEAKER_04I think that uh you you talk extensively about that case in your thesis, and it sort of brings a lot of things together that particular case demonstrates Murphy's skill and his power as an advocate, but of course, it also is one of those examples of what I talked about before, which is him butting up against the Garfield Barwick. You extract in your thesis some of the transcript of that, which really makes fascinating reading. Um and the other thing is it really shows very clearly the differences in their approaches to interpretation of the law, because Barwick was saying, well, an adult means what the drafters of the Constitution thought an adult meant in 1901. Whereas Murphy is saying, well, no, you've got to look at that in the current cultural and social context, and this is not what an adult means in 1972. Well, I mean, Barwick just flatly rejected that argument. He wasn't interested in it at all. Do you agree that you just right there you've got encapsulated one of the great differences between, you know, the the legal approaches and even the personalities of these two men? Oh, absolutely. So when Murphy was appointed to the High Court directly from being Attorney General, his appointment generated considerable opposition and controversy. Can you tell us a bit about that and the reasons for it?
SPEAKER_02Murphy's was by no means the first time there'd been controversy. But I guess what really had changed with this one was that he had been such a divisive figure in politics. I think the politics of the time was particularly acute, but I think there was also a a real fear about what this man represented in terms of legal methodology.
SPEAKER_04Well, of course, I mean there there have been numerous people appointed at to high the High Court from the Government Ministry, and most of them actually from the Attorney General. And you know, even if we look at the High Court when Murphy was appointed, you had two other people on the High Court, Barwick and and Edward McTanan, who'd been appointed from government ministries. One of the incidents you mentioned, which I found very interesting, was the attempted appointment of Albert Piddington to the High Court in nineteen thirteen. Now Piddington was appointed from the bar and he just wasn't considered, I think, if I could put it this way, the right sort of person. And there was a huge outcry of against that, particularly from the Melbourne Bar. And and they managed to get Piddington to resign before he'd ever sat. And of course, in interesting parallel here, it was the Melbourne Bar that led the charge against Murphy, isn't it?
SPEAKER_02Piddington, it's it was a really interesting chapter, but it was obviously a very different judicial temperament from Piddington and Murphy because Piddington gave way, whereas Murphy was. And I think I think in fairness, Murphy was the kind of person who would say, bring it on, you know. Whereas I don't think Piddington was that sort of fellow.
SPEAKER_04Well, I mean, in terms of Murphy's appointment, I think once he decided that he was going to do that, he dug his heels in, but he was somewhat of a reluctant appointee, wasn't he? I mean, he was very much in two minds. I think he had the sense that he still had work to do as Attorney General. I think it's interesting that Jim but Jim Cannes sort of said rather presciently and realistically, well, look, um, we're only going to be here for a short time. So you you get on the high court and you might be on there for 15 years, which of course he wasn't. And Murphy took that on board and thought, well, I can probably do more good in the long run as a high court judge than the time I've probably got left as AG. I think that was weighing on him. Would you agree with that?
SPEAKER_02Oh, 100%. People around him really did, you know, convince him of that. But I mean, there there has been things said that it was also a it was partly driven perhaps by Whitlam and maybe Cannes sort of because he was seen to be a provocative or troublemaking member of the cabinet.
SPEAKER_04I mean, Michael Kirby recently described the relationship with uh between Murphy and Whitlam as a marriage made in hell. Um and you know, although he said they were a very effective team, but you know, they certainly butted heads against one another, and Whitlam wasn't necessarily used to that, you know, because he had an extremely dominant personality himself. So exactly, yeah. So we were talking about um uh earlier about Sigarfield Barwick and Murphy's relationship with him. It seems to me that you know, in some respects the backgrounds of Barwick and Murphy were quite similar. I mean, they're both public school educated, uh they both come from you know working class to lower uh middle class, upwardly mobile families, you know, that they're sort of coming from the same place, broadly speaking, and yet they have extremely different outlooks legally and politically. Do you want to comment on that?
SPEAKER_02Yeah, there were so many similarities between them. And even one of the enduring interests, I think, was their view, which they shared about legislative power for the Commonwealth. They were both hard workers, they had both had their share of um hardships in life, but uh the yeah, the politics really divided them in a in a very uh very staunch way. And you know, I think obviously the personalities were they're both very strong personalities, and when you've got two strong personalities and they're going in opposite directions in terms of ideology, that's gonna be a very big fight at some point.
SPEAKER_04But do you think that he continued to be a legislator in the High Court or that he blurred the distinction between his role as a uh law reformer and as attorney general and uh uh his role in developing the law as a high court judge? Because that's probably something he is criticised for. Do you think there's anything in that?
SPEAKER_02I think so. I I think that, you know, there was I mean, he wasn't going to change his stripes for anybody, and I think he did carry that into his work. Having said that, I do think he was more of a judge than people gave him credit for. And I think that when you look at the the body of work that he did, I mean it was 11 years, it was a substantial period. Um he was part of some of the most significant majorities. I mean, if uh yes, he was a big dissenter, but he was part of some very important case law. He was part of Tasmanian Dams, Kuata, whole range of um decisions of that nature. And he was also one of the judges on the Chamberlain Appeal.
SPEAKER_04I want to talk to you about something that Michael Kirby said when I was interviewing Justice Kirby recently. Whilst he had certainly acknowledged that Lionel Murphy's more heterodox legal conclusions on the High Court were groundbreaking and in some instances later became orthodoxy, which is what you've talked about with, you know, the Mason High Court. He also seemed to acknowledge that there was a lack of sufficient legal reasoning or analysis in some of Murphy's judgment. I mean Murphy would be far more he'd state the facts, he'd want to get to a certain conclusion that he felt was right, and he'd get there fairly quickly without really examining all the counter-arguments and so forth. And so in some respects, what Murphy didn't do is sort of join the dots that you need in a proper legal reasoning, and and others did that for him later. Now I'm just paraphrasing what I think Kirby meant. They're not his exact words, but do you think there's anything in that?
SPEAKER_02Yes, I think that it's that old thing. You can have a provocateur who comes up with the ideas, but you often have to have the implementers, and in some ways, like Murphy had been for Whitlam, in terms of putting the substance into bills that became legislation, perhaps you could see the later courts putting the you know, the foundations and the brickwork together for these um these concepts that Murphy had uh idealised, you know, and they needed that kind of judicial rigour to to get that orthodoxy in Australia. Because of course Australia is at least in its legal sense um quite conservative in that way. It hasn't changed. It's that sense of wanting to you know line up with traditional reasoning processes. In order to get a sense of credibility.
SPEAKER_04So look, thanks for your time this afternoon, Ryan. It's been really interesting talking to you.
SPEAKER_02So it's a pleasure, Michael. Thank you so much for having me.
SPEAKER_04So that was Dr. Ryan Kernigan of Wollongong University. And that brings us to an end of this episode of Breaking Up is Hard to Do. Next month will also be about Lionel Murphy, but something a little bit different. I'm going to be talking to the Honourable Michael Kirby, who was a former justice of the High Court of Australia and was a friend and confidant of Murphy's. So that promises to be very interesting. So I'll see you next month on Breaking Up Is Hard To Do.