Lionel Murphy: Heresy to Orthodoxy — Michael Kirby Reflects

In this episode, I speak with The Hon Michael Kirby about the life and legacy of Lionel Murphy—architect of no-fault divorce and a transformative figure in Australian law.

Murphy’s role in creating the Family Law Act 1975 reshaped how Australia understands marriage and separation. His judicial philosophy, once seen as radical, helped redefine the place of rights, equality, and social change in the law.

Justice Kirby, who knew Murphy personally, reflects on his reforming vision, the controversies that followed him, and his lasting influence. 

Transcript

SPEAKER_00 0:24

Oh dear. We still seem to be stuck in the 1970s. There'll be a prize for the listener who can guess what. Performing television family performed that version of the Neil Siddaka classic. Welcome to episode three of Breaking Up is Hard to Do, a podcast about love, law, and the Family Court. I'm Michael Brown. Today we continue our two-part series on Lionel Murphy, the architect of the Family Law Act and the Family Court, with an interview with the Honourable Michael Kirby. Now, Michael Kirby is one of Australia's most distinguished jurists. He served on the High Court of Australia from 1996 to 2009 after earlier roles as President of the New South Wales Court of Appeal and as a leading international human rights advocate. Today he joins me as one of the most thoughtful chroniclers of Lionel Murphy's life and legacy. As Attorney General in the Whitlam government, Murphy played a key role in Justice Kirby's early career, appointing him as chairman of the Australian Law Reform Commission in 1975. That appointment launched Kirby onto the national stage and marked a continuing close intellectual and personal friendship between the two men. Sir Michael Kirby knew Murphy well, not just as a towering public figure, but as a colleague, a friend, and in time a successor. He has written about Murphy on a number of occasions, most memorably in his Lionel Murphy Ten Years On Memorial Lecture, and in his forewenny Hawking's biography of Murphy. In one of those pieces, he described how when he joined the High Court, he quite literally sat in the very same seat that Lionel Murphy had occupied on the bench, and how he would sometimes reflect on the fact that he was now literally and metaphorically following in Murphy's footsteps. Michael Kirby, welcome to the podcast, and thank you very much for joining me to talk about your friend and I suppose, in some respects, your mentor, Lionel Murphy. Thank you for having me.

SPEAKER_01 2:22

I should have added to your introduction that there is a wonderful new book out. And it's a book of my essays and speeches. It's published by Federation Press, it's on sale, and it's extremely popular, and it has a chapter at the end on a number of legal figures that I've known, and one of them was Lionel Murphy. And uh it's true that he greatly influenced my life, and I owe a lot of my subsequent appointments uh to the initiative that Lionel took in appointing me uh to be the inaugural chair of the Law Reform Commission.

SPEAKER_00 3:05

Yes. Well, I've certainly read the chapter on Lionel Murphy, which was actually the 10-year memorial lecture given by Michael Kirby at the Senate chamber on the tenth anniversary of the death of Lionel Murphy. And I will be asking some questions drawn directly from that because there's some very insightful comments in there. You once described Lionel Murphy as uh a change agent in Australia, a supernova. After him, nothing was ever quite the same again, and you recently described him to me as a force of nature. When you first encountered him, did you already sense that that disruptive force or did it only become clear in retrospect?

SPEAKER_01 3:46

I didn't know Lionel Murphy so well at the bar. Uh I did eventually, uh as a barrister, appear with him uh in cases in the High Court, uh, but uh I was not one of his regular juniors. I was not a regular participant in litigation with him. I didn't really know his pre-political barristerial life. Uh I was more connected with Neville Rand, who had done uh a lot of workers' comp cases, and they were the first um cases that I was doing. And uh Neville was, of course, a very close friend of Lionel. He regarded him as a kind of brother. Uh and um uh it was through Neville, basically, and then after Lionel Murphy's appointment as Attorney General, that we got to know each other.

SPEAKER_00 4:53

In your forward to Jenny Hawking's book, you say that there was, in some respects, a striking contrast between yourself and Murphy. Uh Lionel Murphy you describe as ebullient, gregarious, a lover of parties and champagne, and you describe yourself as serious, dutiful, and applied. Uh, how do you think so someone who was in some respects um so unlike you took such an interest in your career?

SPEAKER_01 5:21

To be truthful, I think it was because of Neville Rand. I think Lionel uh respected Neville Rand. Neville Ran unexpectedly became the Premier of New South Wales a few months after the dismissal of the Whitlam government. So he was a sort of lifeline, and he was the hope of the Labour Party, and Lionel uh respected him, recognized his talent as an extremely well-focused, hard-working, and impressive politician. And I think Neville probably said, Oh, you should take a look at Michael Kirby and give him a few opportunities, and Lionel went on to do that because he respected Neville. It was not because we'd had a long experience working together at the bar or in industrial cases. It was mainly, I think, because of Neville's prodding and suggestion.

SPEAKER_00 6:23

Yes. Well, I just want to talk to you about his career at the bar. In her biography, Jenny Hocking gives the account of Lionel Murphy cutting his teeth in the bar through the 1950s and the fairly turbulent world of union politics and Labour Party politics, the Labour Party split, the groupers, and all of that, which there was a very tempestuous time. And you said you had some limited experience with him at the bar, you didn't know him well. But to what extent do you think that his experience uh at the bar in that in that milieu affected his political sensibilities and honed his skills that he later exhibited as a senator and a minister?

SPEAKER_01 7:06

He was a very talented barrister. I was in a case concerning the joint sitting of the High Court, and he took over the and presented the case for the Commonwealth at the last minute, uh, and he did so very well and won the case. This was about the joint sitting of the federal parliament, which followed the 1972 election. But I really didn't have a lot of close contact with him. He was, of course, the Federal Attorney General ultimately after the 1972 election. And um I hoped and prayed that he would give a few morsels in my direction as a young barrister, and eventually he did. But I think that was not because of our interaction as barristers, but because he had heard that I was doing cases in that field, and he thought he'd give me a go, and he did, and I was pretty good, and that led to more cases, and that's how I got in closer contact with him. Well, perhaps you're being too modest.

SPEAKER_00 8:23

Perhaps he was a good recognizer of talent.

SPEAKER_01 8:26

No, I'm being realistic about the way things work. And Lionel, I don't think he he wasn't enough in my time in the courts, because by the time I was coming along and doing quite big cases, very big cases in the industrial relations field, Lionel wasn't there. He was in Parliament, and uh he was flat out in his life as a politician, and he had lots of ideas, he was brimming with ideas, but I don't think he was all that conscious of me. I think I came into the scene a little bit later after he had been appointed Attorney General.

SPEAKER_00 9:08

Well, one little fact I read in Jenny Hawking's book about his career at the bar, which sort of surprised me, was that he actually started practicing at the bar in 1947, which was two years before he earned his law degree. So apparently back in those days, I wasn't aware of it. You could practice as a barrister without having a law degree, and perhaps it's um, you know, uh an indicator of how eager he was to get on with things.

SPEAKER_01 9:33

Yes, he he he did a science degree. He was very unusual in that respect. Uh and nobody did science before they did law. Everybody did an arts degree and looked at philosophy and so on. But Lionel was always interested in science. He was eager to get into the bar, and he saw uh that, especially in Australia at that time, the industrial relations work was a sort of a pale shadow of the great drama that was going on here in the federal parliament and the state parliament. So that got him into the area, and once he was there, he was so hard-working, so energetic, tremendous energy he had, that um he attracted a lot of attention and a lot of praise and and a lot of work.

SPEAKER_00 10:27

Yes, well, you've mentioned his interest in science and in fact his qualification in science, and that's something that he uh carried with him throughout his life, isn't it? And um yeah, I just want to ask you about, I suppose, the personality of the man, because you know, it said of uh one former High Court judge he he didn't have any interest outside the law. Well, nothing uh would be further from the case with Lionel Murphy, would it? I mean, he he was intensely interested in all sorts of things. And do you agree with that? And do you think that sort of informed his uh his work as a a senator, a politician, and and later as a judge?

SPEAKER_01 11:06

How could it not inform his work? He was uh a polymath, he was interested in areas of uh life and the law that were not of great interest to most barristers and not of much interest to judges. He was a great mind and he was fascinated by the world, its complexity, its problems, and he was absolutely the right person to be the Attorney General in the first Whitlam government. And I remember after he died, there was a film made by Darrell DeLore, and at the end of the film the credits went not through all the director's relatives, which is what my father said you always saw at the end of a movie, but all of Lionel's achievements. And they were so many. He he had only been Attorney General for I think about two or three years.

SPEAKER_00 12:08

So I'll get on to his achievements as Attorney General shortly, but I just wanted to talk a bit about him as a senator, which of course I understand is before your involvement with him. But the fact is he became a senator in 1962. So he was ten years in the Senate before he was actually in a party that held power. And we read about his skill as an orator in the Senate and also a negotiator in the Senate. And most notably, he almost brought about the abolition of the death penalty for com Commonwealth offenders by introducing a private member's bill, which did pass the Senate with the assistance of the DLP. It it failed in the House of Representatives, but it went pretty close, and of course, that was later achieved when he was Attorney General. It puts me in mind of another notable reformer, Lyndon Baines Johnson, who was famously the um extremely effective operator in the US Senate. Do you think is it's a fair comparison to compare Lionel Murphy's skill and energy to Johnson? And do you think his experience as a senator helped him give effect to the wide-ranging reform he actually brought in as Attorney General, particularly since the Labour Party never had outright control of the Senate throughout the whole Whitlam government?

SPEAKER_01 13:21

And you could add to that, particularly because they'd been out of government for 23 long years, and they didn't have the experience in government. Lionel was a very organized, disorganized person. He had a thousand ideas in his head, but he also organized himself so that he got through and he got his employees, Commonwealth officers and barristers who were working on briefs for him, to work very hard. And he was very creative, very imaginative, and very hard working. And I think that's how he he made an impact, and the impact is still with us in a number of the statutes that were enacted. And also in the committee system, Lionel was a very good person in committee, not just in the on the floor of the Senate, in the uh main sittings of the Senate, but in the committees. It's strange to think that before Lionel Murphy's time, the committees of the Parliament were not very active, certainly nothing like the activity that he breathed into them. And I sometimes wondered whether that activity that he breathed into the committees gave the Federal Parliament more life than it basically deserved at that time, but it was a feature that he was good at. He was good in detail, he mastered the detail, he worked very hard, and he got on top of all the issues, and I think his training as a barrister helped him in that. Neville Rand was the same. Neville used to get in to work in his chambers at 5 a.m. And he expected me as his junior to be there at five to five, making a pot of tea and sitting down with him to work through the case that was on that day. And Lionel I don't think he got in at a five o'clock, but he was very well organized and he took advantage of those about him to be a master creator. He created a lot of ideas and translated a lot of ideas into action.

SPEAKER_00 15:50

Sure. Well, I wonder if his contribution to the Senate is sometimes underestimated in light of his gr later achievements, because he was certainly a firm believer in the Senate. And one has to remember at the time the abolition of the Senate was Labour Party policy, which Lionel Murphy never believed in. And, you know, ultimately, as you said, he made the Senate or helped make the Senate into what it is today.

SPEAKER_01 16:18

I wouldn't say he did that alone. I think it was affected by the establishment of the Democratic Labour Party, the split and the fact that a certain proportion, mainly Roman Catholic members of the Labour Party who were senators, who became senators and thereby wielded the balance of power. The DLP kept the Labour Party out of office from the split until 1972. And a consequence of that was that the Labour Party did not have as much influence in the Senate as it might otherwise have had. But uh what influence they had and what numbers they had, Lionel mustered into the committee system, and it subjected the coalition government to repeated questioning, to calling the uh members of the um public service to the bar of the chamber and asking questions in committee before the Senate. So he was a very powerful and innovative uh Senator, and he made the most of his position there. Sure.

SPEAKER_00 17:38

Well, you've made reference to the 23 years, I suppose, in the political wilderness of the Australian Labour Party and to the effect uh that had on their enthusiasm for the reform program that they developed, and Lionel Murphy was an important part of that. And of course, as you said, he was only Attorney General for a little more than two years. And the reform program, if if you just rattle it off in dot points, is really quite stunning. I mean, you've got the in the introduction of the Family Law Act, the Family Court starts, the federal court is established, no fault divorce, you've got the Trade Practices Act, you've got, as I said, the abolition of the death penalty for Commonwealth offences, you've got the development of the Racial Discrimination Act, which was ultimately passed under the Fraser government, but it was developed largely by Lionel Murphy, and you've got indigenous land rights reform. What is your view of the scale of the impact of the legal reforms instituted by Lionel Murphy, particularly on the lives of ordinary Australians?

SPEAKER_01 18:40

Well, they had a great impact. I'm not sure whether in your list, because it was so voluminous, you mentioned the Law Reform Commission Act, which Lionel introduced. And that was what he ultimately got me from my quiet backwater as a deputy president of the Arbitration Commission into the starring role in the Law Reform Commission. And that was an institutionalization of the process of reform of helping Parliament to deal with issues. If we look at Parliament today, even one of the problems we have in Australia is that really important ideas, such as a Bill of Rights, for example, uh people say, oh yes, we must do that, we must do that, and they have meetings and conferences and they talk about it, but they don't do anything. Well, now Lionel Murphy was a doer. He he translated so many ideas into action, and it was, as you indicated, all the more surprising because he was in uh a chamber where the government didn't have a majority, and therefore he he couldn't be sure that he could get it through. But somehow he had a momentum, and it was like a hurricane going through the Senate that he had this momentum, and I think some of the coalition senators were a bit afraid of him.

SPEAKER_00 20:13

Well, I've heard it said that one of the reasons he was so effective in the Labour Party in the 60s and 70s is he was one person who could stand up to golf Whitlam because Whitlam had different views of the importance of the Senate than Lionel Murphy did. And, you know, it's not that they had great conflict, but but you know, he was very firm in his views and able to stick by them, wasn't he?

SPEAKER_01 20:36

Well, he he stuck by them, but one might say it was a marriage made in hell by two very egoistical and amazing people who were very creative, very hardworking, full of imagination and full of determination. The two of them, and some other members in the Whitlam government, were outstanding ministers, and they'd been frothing at the bit to get into office, and it took a long time. I remember the night that Koff Whitlam led the Labour Party into office in December 1972. Uh, I was coming home from work, I suppose, as usual, and I went along New South Head Road on the way to my then home. Our taxi taking me home stopped temporarily, and there was Lionel Murphy and Neville Rand at the hamburger shop. And they were buying hamburgers, and I thought, this is a very Australian scene. Here are two people who've just won office after 23 long and weary years in the wilderness, and they're out there getting their own hamburgers. So it it was a very it stuck in my memory.

SPEAKER_00 21:57

What a wonderful story. So I I think of like His impact as being the Family Law Act and the Family Law Reforms being a family lawyer myself. We talk about how his reforms in government affected ordinary people. Do you have any reflections on how the introduction of No Falk Divorce and the Family Law Act affected the lives of ordinary people in Australia?

SPEAKER_01 22:22

Yes. And in fact, prior to Lionel Murphy, there had been another reformer, a reformer in the Liberal Party, Sir Garfield Barlick. And he introduced the Matrimonial Causes Amendment law, and that made marriage a little bit more modern. When I was at law school in those days, we studied divorce. And divorce was based on the old English law and on the notion that you had to establish a matrimonial fault to provide the jurisdiction to permit a divorce. And it was there was still a lot of opposition even to the notion of divorce. And divorce was opposed by the Catholic Church and by others in society. Barwick introduced his reforms, but they didn't go far enough. And in a sense, they wetted the appetite of those who wanted a more radical reform. And that radical reform didn't just come out of the head of Lionel Murphy, it came substantially, like the Ombudsman idea, out of Scandinavia, where in the countries of Scandinavia, within the 60s and 50s, laws had been enacted to provide for no fault divorce. And that was striking at the very root of the previous notions of divorce law. But that was what Lionel wanted to do and uh what Whitlam wanted to do, and so it became a major objective of the Whitlam government uh and of Lionel Murphy. Lionel Murphy had himself had uh a divorce, uh, and uh I think he didn't like the process, and he certainly didn't like the discretion statement. Uh there was this nasty little provision in the Barwick legislation that if you got a divorce on your application, but you had committed adultery, if you'd actually had sex with somebody, you had to make an admission of that and ask for the exercise of discretion notwithstanding your breach of the marriage law. And that was the discretion statement. So up there in the Supreme Court, there were rows and rows of statements signed on oath, I believe, admitting to divorce and giving all sorts of private details about people's lives and their personal lives and their sexual lives. Uh, and Lionel hated that. Yeah. And I know he hated it. He engaged Peter Leslie, who was a barrister, to advise almost immediately on getting into office, how can I get rid of all those discretion statements? And he took steps to get rid of the discretion statements and have them destroyed. That caused a tremendous consternation by those who perhaps wanted the old law of fault divorce restored, but it was not restored. And in fact, it was something that was in tune with the time. Marnell was very conscious of that. He hated the discretion statements. Sure.

SPEAKER_00 26:01

Yeah. Well, you've talked about the um Barwick uh Matrimonial Causes Act reform in 1959. And of course, what that did, among other things, it did introduce for the first time a no-fault ground for divorce, but you had to be separated for five years. What the Murphy Act did in 1975 is it abolished fault altogether and it made the the ground for divorce 12-month separation.

SPEAKER_01 26:26

So thank you for reminding me of that. I did know that once. And we were taught the old law by David Selby, who was a judge of the family division of the Supreme Court. And he was a lovely man, and he taught us the old law of fault divorce.

SPEAKER_00 26:46

Lionel couldn't get rid of that quickly enough. Well, I just wanted to ask you about Barwick and Murphy, because they're often seen as opposite ends of the of the polls, which in many respects they are. But you've commented in some of your writings about actually, in terms of their background, and in indeed in terms of even the law reform that we see there, there are actually similarities between them, and they both served as attorney general. They were both appointed to the High Court as Attorney General. Have you got any comments on that? Oh, yes.

SPEAKER_01 27:17

Barwick went to my school, Ford Street High, and Murphy went to Sydney Boys Home. They were both products of public education. And I think proudly products of public education. Both of them were very effective barristers. Barwick went on to become Chief Justice of Australia and was presiding in the High Court when Murphy took over a case from Morris Byers and presented the government's case very effectively. I think they disliked each other, maybe even hated each other. But they had a lot in common in that they came up from working class families. They were both their value system was that of an ordinary Australian. They weren't posh or Toffee. They were both people who had come up from public education. And I think Barwick also had reformist ideas, but they were more moderated. Larnels were very powerful and very urgent. And he did something about it. Often, by the way, people who have similarity can have much more powerful contests because they can see the other point of view and they think they've got the truth. But I think they had a lot in common, actually. Trevor Burrus, Jr.

SPEAKER_00 28:57

When Lionel Murphy was elevated to the High Court, it caused significant controversy at the time. And in some senses, that controversy in some quarters still exists today. And it was often said that his point was too political. Do you have any reflections on that?

SPEAKER_01 29:13

Well, the High Court is a political institution. It's there in the Constitution, and it it has to make decisions which concern where power lies, whether it lies with the federal parliament or with the states, and the residue of power with the states. So it's all about politics, and anybody who feels that the appointments to the High Court of Australia are not political in the broad sense, just isn't aware of the Constitution and isn't aware of the work of the High Court. And Lionel Murphy certainly was aware of it, and so was uh Sagarfi Bawi. Both of them were uh very skillful politicians, very determined politicians. Each of them achieved a lot in politics uh and in life. I got to know both of them because I uh had been the chancellor of Macquarie University, and um Barwick had been the first Chancellor of Macquarie University. So I got to know him. I got to know him when I was appointed to the Law Reform Commission on the proposal of Lionel Murphy. He probably looked on me as uh uh as one of Lionel's creatures. He was a very able man, and he was a very good advocate and a very good speaker. Uh Lionel was more um inelegant. He was not an elegant speaker, but he had a powerful mind and that shone through, and and he had great determination. It's hard to think of him and compare to many of the politicians of today. Lionel was a big achiever, and family law mattered to him, and I think that might have been affected by his own personal experience with the Matrimonial Causes Act.

SPEAKER_00 31:20

Well, my personal recollections of Lionel Murphy are far more limited than yours. But I do remember as a law student, Sydney University, he came to the university one day to talk, and he was sort of mobbed, a bit like a rock star, actually. He was very popular with law students, I think, you know, partly because of the reforms he represented. But frankly, I think I liked him because his judgments were short and to the point, and they were written in plain English. Now, and if I may say so, although your judgments were not quite as short, one could read them, one could even almost enjoy them. Do you have any reflections on Lionel Murphy's approach to judicial decision making? Did that affect your approach at all?

SPEAKER_01 32:05

Well, Lionel Murphy was certainly a a rock star amongst law students. That was after my time as a law student. I was already a practitioner, so I was observing from the ambivalent situation of a member of the profession and a recent law student, but not still a law student when Lionel was at work on the High Court. Lionel used to ring me many times and just talk through the problems of cases in the High Court. For me, it was a bit of a nuisance because I was chairing the Law Reform Commission and I was concentrating on my job and on all the problems that we were coping with in reforming the law. And Marl was asking, well, what's the answer to this legal problem? What do you feel about this? And that was an entirely proper thing to do, because I was a judge and and I was trying to be of help to him. But I think he didn't make enough effort to explain things, if necessary, to mention the cases which stood against the proposition that he wanted to advance before getting into saying what he believed. Now it's true that made his reasons shorter, but he wasn't on the High Court as a politician. He was on the High Court as a judge, and predictability in the law depends upon judges at least having regard to and and discussing previous authority and what is their legitimacy to, in a particular case, to override that. In the High Court, there is an ultimate duty of the court, in my opinion, to re-express the law. If the law is out of date or is out of kilter with the values of the time, then the High Court is the last word, and that's a very important role of the court, sometimes underestimated. Lionel was more inclined to sweep away the old law and just start either from an American root in the law or from his own opinion as to what the law should be. And I think that possibly diminished the impact of his reasoning upon his successors and his contemporaries. And there's no doubt he did change things and re-expressed things in a way that sooner or later the other justices of the court got to. They took a bit more time, they distinguished old authorities, they appealed to their reserve power, if you like to call it that, to re-express the law, the common law, or to reinterpret the Constitution. And a lot of Lionel's work had impact, but years after his death. And I think that's partly because he didn't go about it in a subtle way that would carry the profession.

SPEAKER_00 35:35

Well, you said at one point in relation to some of his high court decisions. I think it was maybe in relation to the his view of the Privy Council. At the time it appears as heresy. Yes, at the time of the Privy Council.

SPEAKER_01 35:48

He hated them almost as much as discretion statements.

SPEAKER_00 35:51

But by the time of his death, it had become orthodox. I think what I hear you saying is, you know, he he set out ideas and principles, and one doesn't very often see today decisions of Lionel Murphy quoted by the High Court or other courts, but but the principles he set out were later picked up, maybe five years later, maybe ten years later, and reasoned out by other judges at the High Court or other courts, and then they did become, you know, binding authority that made a lasting change to the Australian legal landscape. Is that a fair comment?

SPEAKER_01 36:26

Yes, I think it is a fair comment. It probably would be denied by many of the judges. They would say, well, he was just a vagabond, and he was just going ahead saying what he thought the law should be and hanging what the law has been expressed to be in the past. But I don't think Lionel was simply expressing what he thought the law should be. He was expressing what the law was, and that involved a reinterpretation of the Constitution, which dated to a time when Australia and its component parts were a colony, and that was how it was when the Commonwealth was established. But things changed. I think uh one of the biggest effects of Lionel was the so-called implied constitutional rights. Lionel said the constitution is a document. The constitution is a document written in English, an ambiguous language. The Constitution in English has to be interpreted. Others before us have given a go at interpreting it, but we now live in a different age, and the things around the Constitution to which it has to apply require that we re-express the meaning, and that was the implied rights doctrine. Now, when he declared that, uh everybody was upset and was saying this is shocking. Lionel felt, I'm sure, I'm merely being honest about this. I'm merely stating that there are implications in the Constitution and I'm going to express them. And one judge, I think it was even that great judge, Sir Anthony Mason, he said, I've looked again at the Constitution and I don't see a s uh section 92A in the Constitution. That was a sort of joke at the expense of Lionel. But ultimately Mason and others came round to agreeing with some of the implications. For example, the implication of free speech, which is sometimes even now contested.

SPEAKER_00 38:54

When he was on the hike, Lionel Murphy became the subject of allegations that he had sought to improperly influence legal proceedings while a judge. As a result, he faced two criminal charges in 84 and 85, which resulted in his acquittal of all charges. And despite that, the controversy uh lingered on in some quarters um until his death from cancer at the age of very young age of 64 in 1986. So, Michael Kirby, you wrote that no justice has ever endured such a public calumny, was so prolonged, unrelenting, and public. From where you stood, how did that period change him and uh and and the way he was perceived in Australia?

SPEAKER_01 39:35

I don't know that it really m had a big impact on Lionel's mind. I think he would just regarded this as something he had to endure because he had been very bold in his approach to a very high office and had made a lot of enemies on the way. But whatever the impact on him, his impact on the High Court and on Australia was enduring. It was unusual in the way he went about expressing what the law he thought was. And that I think made his journey more difficult, and it made the more conservative members of the profession and the conservative more conservative judges really disrespecting of Lionel and disinclined uh to refer to him and disinclined to cite his reasons. There were earlier dissenting judges in the High Court, such as Sir Isaac Isaacs, and such as uh H. V. Effort. They were justices of the court. They dissented often. Their dissents did have a huge impact on the judiciary. Lionel's dissents took more time, and often they were achieved without appropriate attribution to Lionel. There wasn't too much acknowledgement of the impact of Lionel's ideas on the court by those who came after him.

SPEAKER_00 41:20

And you've perhaps somewhat modestly left yourself out of that list of dissenting judges whose dissents have had an impact. Do do you see Lionel Murphy's legacy as a dissenter? Did that in any way inspire you or have an effect on your uh your approach to your judicial task in the High Court?

SPEAKER_01 41:43

Like Barwick and Murphy, I came from public school. Yep. And uh that is not usual in the High Court of Australia. When I was on the High Court serving uh from 1996 to 2009, for most of that time I was the only justice who had been educated in the local public school. And that itself is a question. So I think that did affect Barwick, Murphy, and I think that does affect you. If you've seen, as I did in the immediate period after the war, children coming to the school without school, without shoes, uh and with without having really had a breakfast because some of them lived in the local orphanage called the home, they they uh have a different experience and therefore they see the law through different eyes. And I think that's why Lionel saw family law through the eyes, especially of women. Lionel was a great lover of women, a supporter of women, a supporter of women's rights, and he saw things differently, and and he didn't hesitate to say it, said it bluntly. Perhaps he should have been a little bit more subtle and more gentle in the way he expressed things, so that he didn't upset the horses, but got the horses to the place where they had to get.

SPEAKER_00 43:17

So you've written about his legacy, and you've said it is only with the passage of years that radical reforms come to seem logical, even inevitable. And you've also warned that contemporaries are really good judges of influence and that judgment must be left to his to history. So here we are, 40 years on after the death of Lionel Murphy, and 51 years after his attorney generalship ended. Are we able to ask whether history has been fair to Lionel Murphy? And if we can ask that, do you have an answer to that?

SPEAKER_01 43:48

I think Lionel's answer to it would be I don't care. My job as a legislator was to do the very best I could and to get reelected. My job as a judge. Was to do the very best I could explain why and how I was getting there, and to leave it to the future judges to take up and follow what was worth following. And if you actually look at what happened immediately, then Lionel uh would not have been deemed a big success in terms of his legislat of his judicial years. He was a mighty success in the parliament. But in the court, maybe he had less impact. And to be truthful, in the court maybe I had less impact than I should have had. But we have a very funny rule in our system, and that is if you actually disagree with the old law, and if you disagree with where it gets you, and if you're in the High Court of Australia, you have a duty to express what your true opinion is. And that is a sort of fail-safe system in the law. It's there in the final court so that we have something that operates to shift things. But people don't often like to acknowledge this because they don't like to acknowledge that the law is less than perfect, and it's very less than perfect. As a gay person, I knew from the beginning the law was not perfect, the law was very imperfect. But my approach to dealing with that issue and with other issues was to express my views and hope that the wisdom of hindsight would lead to future change. And it tends to f lead to future change. And I think Lionel has had a very big impact, and I've had an impact, but maybe not as big as I should have had. And that's why I sit here looking uh with rapt attention at the current decisions of the High Court to see to what extent they are using the thoughts of Lionel Murphy, of Garfield Barwick, and of Michael Kirby today.

SPEAKER_00 46:18

Perhaps the efforts that Lionel Murphy made, and you and others have made, the fruits of that often aren't seen till many years later.

SPEAKER_01 46:27

I hope so, but I hope that it happens in the next few years, because I've only got the next few years to see it.

SPEAKER_00 46:33

Well, who knows? So just to finish up, I want to read up something that you wrote about Lionel Murphy. You said you imagined him striding in the Senate chamber saying, geez, where's the party? Open the champagne. By the way, did you read the Scientific American this week? If he were watching Australia now, what questions do you think he'd be asking us?

SPEAKER_01 46:59

Well, Lionel was a true radical, and therefore he would be asking the radical questions. But there is an element in politics of the game and winning the game and being in office. You can do good things, and there's no doubt about that, but you can do super good things. And Lionel was not content with just being a seat warmer and doing a few nice things with a few important bills. He he was a person who was in a hurry, and he helped to put a bit of a burr under the saddle of the Australian public life. And I think every now and again you need a person like Lionel Murphy, and his legacy goes on.

SPEAKER_00 47:51

Well, that was my interview with Michael Kirby. I hope you found it as interesting listening to him as I did talking to him. Next month I'm going to be talking to another National Treasurer, Elizabeth Everett. I'll be getting her reflections on the court, on her time as Chief of Justice, and how the family court and the family law project has unfolded over these last 50 years. I'll see you next time on Breaking Up is Hard to Do.