Lionel Mur­phy re­flected the best and worst of the Whit­lam gov­ern­ment

His­tory has yet to de­cide how best to re­call the life of the Whit­lam min­is­ter

The Weekend Australian - - FRONT PAGE - PAUL KELLY

Lionel Mur­phy was a charmer with a rich voice, a man of jus­tice with a com­pul­sion for dan­ger, an ebul­lient vi­sion­ary with noc­tur­nal habits, a born re­former and a ruth­less man of prin­ci­ple. Mur­phy re­mains for­ever at the cen­tre of one of the great un­re­solved dis­rup­tions in our ju­di­cial life.

A ro­bust politi­cian, a de­bater and racon­teur, Mur­phy as at­tor­ney-gen­eral had im­posed him­self on our le­gal sys­tem with an im­pa­tient vi­o­lence and be­came, in style and con­tent, an agent of po­lar­i­sa­tion, a fac­tor in the sub­se­quent tragedy.

Mur­phy re­flected the best and worst of the Whit­lam gov­ern­ment. His re­form­ing achieve­ments are im­pres­sive — the Fam­ily Law Act, Fam­ily Court and “no fault” di­vorce, tougher trade prac­tices law, the Racial Dis­crim­i­na­tion Act and le­gal aid — yet he be­came in­fa­mous for his so-called raid on ASIO and for his im­mor­tal “kerb­side” opin­ion that the cat­a­strophic $US4 bil­lion Khem­lani over­seas loan for re­source projects was, in le­gal terms, for “tem­po­rary pur­poses”.

Mur­phy came from the Syd­ney of the 1950s and 60s, when the cops were crooked, the races were fixed, in­dus­trial bat­tles made le­gal and po­lit­i­cal ca­reers, il­le­gal gam­bling, grog and girls were fix­tures in a mi­lieu where es­tab­lished power met un­der­world fig­ures, and lawyers, po­lice and politi­cians min­gled in a fog of deals and din­ners. It was noth­ing re­mark­able; it was just Syd­ney.

Mur­phy in of­fice had a flam­boy­ant sense of work and fun that was ir­re­press­ible. In the words of Whit­lam gov­ern­ment staff mem­ber, now NSW So­lic­i­tor-Gen­eral, Michael Sexton, it “fre­quently spanned 24 hours at a stretch”. Taken with Ju­nie Morosi, he penned a fa­mous let­ter to the ACT min­is­ter, Gor­don Bryant, sug­gest­ing a hous­ing deal for Morosi as “a most en­gag­ing em­ployee of the Com­mon­wealth”.

In 1975 Whit­lam ap­pointed Mur­phy to the High Court, an act that en­raged then chief jus­tice Sir Garfield Bar­wick, who told Whit­lam “he is nei­ther com­pe­tent nor suit­able for the po­si­tion”. On the bench Mur­phy gave ex­pres­sion to his be­lief laws should be “ra­tio­nal, hu­mane, just and sim­ple”. He prized brevity and knocked back a knight­hood.

With the High Court un­der chief jus­tice Sir Harry Gibbs in a state of in­ter­nal con­vul­sion and fear­ing its rep­u­ta­tion would be dam­aged, the Hawke gov­ern­ment de­cided on May 7, 1986, to es­tab­lish by leg­is­la­tion an in­quiry by three judges to de­ter­mine whether Mur­phy’s ac­tions un­der sec­tion 72 of the Con­sti­tu­tion con­sti­tuted “proved mis­be­haviour”, which meant his re­moval on an ad­dress by both houses of par­lia­ment.

The na­tion had en­tered unique po­lit­i­cal and con­sti­tu­tional waters. The three com­mis­sion­ers — Sir Ge­orge Lush, a for­mer Vic­to­rian Supreme Court judge; Sir Richard Black­burn, a re­tired ACT chief jus­tice; and An­drew Wells, a re­tired South Aus­tralian Supreme Court judge — were to re­port by Septem­ber 30. They were to as­sess only pre­cise allegations not cov­ered by the two pre­vi­ous Mur­phy tri­als that ended with Mur­phy’s ac­quit­tal. The pro­ceed­ings were to be in pri­vate. The com­mis­sion­ers were to make find­ings only on ev­i­dence “ad­mis­si­ble” in a court. They were em­pow­ered to com­pel Mur­phy to give ev­i­dence. The left was in up­roar and tur­moil.

Mur­phy’s friend, “Di­a­mond” Jim McClel­land, hardly helped at the time, say­ing Lionel was “per­haps a bit too in­dis­crim­i­nat­ing in his friend­ships”. De­coded, Mur­phy played fast and loose. The in­quiry be­gan on June 3 with com­mis­sion­ers call­ing on any­body with allegations to come for­ward with ev­i­dence.

Less than eight weeks later Mur­phy’s close friend, Neville

Mur­phy in of­fice had a flam­boy­ant sense of work and fun that was ir­re­press­ible

Wran, told the gov­ern­ment through Gareth Evans that Mur­phy was dy­ing of can­cer. The in­quiry was aban­doned; the leg­is­la­tion was re­pealed. Mur­phy died on Oc­to­ber 21.

All the com­mis­sion’s doc­u­ments were placed in the hands of the pre­sid­ing of­fi­cers of the par­lia­ment to be se­cret for 30 years. They were re­leased this week in a his­tor­i­cal snap­shot of a mo­ment in time — quite a mo­ment.

The cam­paign for Mur­phy to be re­moved from the High Court had been trig­gered with the so­called Age tapes — pub­li­ca­tion of phone taps in­volv­ing, among oth­ers, Mur­phy’s friend, Mor­gan Ryan, lawyer to un­der­world fig­ures and the source of his trou­bles. It won mo­men­tum with the claim of then NSW chief stipen­di­ary mag­is­trate Clar­rie Briese that Mur­phy had tried to in­flu­ence him over the trial of Ryan with the al­leged fa­mous line: “What about my lit­tle mate?”

The com­mis­sion doc­u­ments re­leased this week are a mass of fact, rev­e­la­tion, al­le­ga­tion, ru­mour, spec­u­la­tion and spite. We can never know what the com­mis­sion­ers would have de­cided. In its fi­nal re­port the com­mis­sion said it had reached “no find­ings of fact” and it “formed no con­clu­sions or opin­ions” about Mur­phy.

The ma­te­rial is best un­der­stood in two cat­e­gories: 21 allegations that are dis­missed on grounds they could not give rise to any “mis­be­haviour” claim un­der the Con­sti­tu­tion and another se­ries, some of which were served on Mur­phy’s lawyers on the ba­sis they “con­sti­tuted con­duct con­trary to ac­cepted stan­dards of ju­di­cial be­hav­iour” and that some met the sec­tion 72 test.

It would be wrong, how­ever, to as­sume the com­mis­sion had made up its mind on these allegations. That can­not be the case. The doc­u­ments re­flect a “state of play” dur­ing an in­quiry be­fore fi­nal ev­i­dence had been pro­vided and as­sessed.

The lat­ter allegations in­cluded, first, a claim by de­tec­tive chief in­spec­tor of the Com­mon­wealth Po­lice Don­ald Thomas that Mur­phy sought covert in­for­ma­tion from him and said, in re­turn, he would ar­range for Thomas to be pro­moted to as­sis­tant com­mis­sioner. Thomas said the of­fer was made dur­ing lunch at a Kings Cross Korean res­tau­rant about late 1979, at­tended by, among oth­ers, Ryan. Thomas said Mur­phy said of the new Aus­tralian Fed­eral Po­lice: “We need some­body inside to tell us what is go­ing on.” The al­le­ga­tion was that Mur­phy was at- tempt­ing to “bribe a com­mon­wealth of­fi­cer” in breach of his du­ties.

Sec­ond, it was al­leged that Mur­phy in agree­ment with Ryan had made in­quiries to find whether two AFP of­fi­cers, David Lew­ing­ton and Robert Jones, who were in­ves­ti­gat­ing al­leged il­le­gal ac­tiv­i­ties of Korean na­tion­als, could be in­flu­enced and that Mur­phy had told Ryan af­ter mak­ing in­quiries that both were very straight. Var­i­ous com­mis­sion doc­u­ments say this pointed to “in­ju­di­cious” be­hav­iour at the very least, but whether it was crim­i­nal be­hav­iour was “more doubt­ful”.

Third, it was al­leged that Mur­phy ap­proached un­der­world fig­ure Abe Saf­fron — ei­ther di­rectly or in­di­rectly — to “lean” on Danny Sankey to drop the pri­vate pros­e­cu­tion he had brought against for­mer min­is­ters over the Khem­lani loans af­fair. Com­mis­sion doc­u­ments de­pict this as an ef­fort to per­vert the course of jus­tice. Doc­u­ments say that “if an as­so­ci­a­tion with Saf­fron could be proved con­trary to any such de­nial, the Judge would be in dif­fi­culty”.

Fourth, it was al­leged that Mur­phy com­mit­ted per­jury or told an un­truth dur­ing the trial ac­counts he pro­vided of his con­tacts and ef­forts on be­half of Ryan.

Fifth, it was claimed Mur­phy ap­proached Neville Wran to pro­cure the ap­point­ment of Wadim Je­gorow to the NSW Eth­nic Af­fairs Com­mis­sion to seek ad­van­tage for Ryan, though such ac­tion could surely not meet any “mis­be­haviour” test.

Sixth, it was claimed that Mur­phy had en­cour­aged Ryan to do harm to bar­ris­ter David Rofe QC, who was in­volved in the Sankey case — though Mur­phy might only have ex­pressed hos­til­ity to­wards Rofe.

Sev­enth, it was claimed Mur­phy as­sisted or did not dis­suade Ryan in his at­tempt to threaten NSW politi­cian Mil­ton Mor­ris, another al­le­ga­tion on the flimsy side.

Eighth, it was al­leged Mur­phy agreed to make rep­re­sen­ta­tions on be­half of in­ter­ests linked to Saf­fron over a con­tract re­lat­ing to Cen­tral Rail­way in Syd­ney.

The ninth al­le­ga­tion also re­lated to Saf­fron. It was claimed Mur­phy made rep­re­sen­ta­tions to Wran over a Luna Park lease on be­half of a com­pany linked to Saf­fron, an is­sue dis­puted in yes­ter­day’s me­dia cov­er­age.

Tenth, it was claimed Mur­phy ap­proached Judge Staunton of the NSW District Court seek­ing an early trial for Ryan.

Eleventh, it was claimed Mur­phy breached proper stan­dards when, in a dis­cus­sion with Briese, he raised the well-known “Greek Con­spir­acy” case and said the pre­sid­ing judge should dis­miss the case, prefer­ably in one para­graph.

A fur­ther al­le­ga­tion had been drawn but not served on Mur­phy be­cause of the wind-up of the com­mis­sion: that Mur­phy had im­prop­erly pro­vided to another party pho­to­copies of di­aries be­long­ing to Briese and that this ac­tion was con­trary to the orig­i­nal ju­di­cial or­der re­gard­ing the di­aries.

The doc­u­ments show the com­mis­sion was in­ter­ested in any link be­tween Mur­phy and Saf­fron but — in pa­pers so far sighted — it seemed to have no progress on that front. This line of in­quiry fol­lowed from the as­so­ci­a­tion be­tween Saf­fron and Ryan, with the doc­u­ments spec­u­lat­ing with­out ev­i­dence about Mur­phy be­ing a part­ner with Saf­fron in a brothel. There is un­sub­stan­ti­ated gos­sip about Mur­phy and Saf­fron around the time that Mur­phy was go­ing out with a woman named Anna Paul, a friend of Ryan, who had al- leg­edly put her on his staff even though “she was not ca­pa­ble of typ­ing or car­ry­ing out sec­re­tar­ial func­tions”.

The allegations in the “re­jected” cat­e­gory are var­ied and vivid. Some are lu­di­crous; some are merely false; a few are fac­tual but failed any “mis­be­haviour” test that was the fo­cus of the com­mis­sion­ers. The point is these allegations are put aside at an early stage of the com­mis­sion’s work. They re­veal the ex­traor­di­nary at­mos­phere of the time.

The most ab­surd was that Mur­phy was a Soviet spy, for which no ev­i­dence was pro­vided. On the other hand, it was al­leged Mur­phy be­haved im­prop­erly as a min­is­ter by ac­cept­ing free or dis­counted travel from Ethiopian Air­lines. Since his wife was a con­sul­tant for the air­line and this in­volved travel ben­e­fits for her and her fam­ily, these were facts but they were not rel­e­vant to the sec­tion 72 test.

The claim Mur­phy had been in­volved in a tax scam that was linked to his wife get­ting a di­a­mond ring was put aside. So were claims he im­prop­erly down­graded Cus­toms sur­veil­lance of Saf­fron, that he wanted un­der­world fig­ure Ge­orge Free­man “knocked out”, a claim the NSW Po­lice found to be “a com­plete fab­ri­ca­tion”, and that Mur­phy as min­is­ter im­prop­erly or­dered the re­turn of a pass­port and the re­lease from cus­tody of Ra­mon Sala, who had un­der­world links.

The com­mis­sion put aside claims Mur­phy was tied to il­le­gal im­mi­gra­tion schemes in­volv­ing Kore­ans and Filipinos. It re­jected claims he should have come for­ward about a din­ner at Ryan’s house also at­tended by for­mer chief mag­is­trate Mur­ray Far­quhar, later sen­tenced to jail. A claim that Mur­phy had re­ceived a par­cel of shares from for­mer se­na­tor Ian Wood was found to be de­void of any ev­i­dence. There were a se­ries of allegations raised about var­i­ous Mur­phy-Ryan dis­cus­sions that the com­mis­sion found not to be rel­e­vant. The fa­mous let­ter to min­is­ter Bryant about Ju­nie Morosi’s hous­ing was raised but was not rel­e­vant. Another al­le­ga­tion con­cern­ing Morosi not fi­nalised was that Mur­phy was aware of the break-in that oc­curred at her Syd­ney home, re­put­edly or­gan­ised by prom­i­nent Lib­er­als, sup­pos­edly to find in­for­ma­tion about the Mur­phy-Morosi con­nec­tion.

The is­sue of Mur­phy’s be­hav­iour was re­solved by his death, not by the three-man com­mis­sion. It is there­fore un­re­solved be­fore his­tory, the pas­sions on each side, so in­tense and bit­ter at the time, are now buried and, for sub­se­quent gen­er­a­tions, for­got­ten. Few peo­ple — for or against Mur­phy in those days — would have changed their minds about him.

In es­tab­lish­ing the com­mis­sion, the Hawke gov­ern­ment was pre­pared to con­tem­plate Mur­phy’s re­moval from the court. As Gra­ham Richard­son re­called in this paper yes­ter­day, he was sent by Hawke to in­form Mur­phy of the gov­ern­ment’s de­ci­sion.

Two crit­i­cal factors in the terms of ref­er­ence were that the ma­te­rial cov­ered in Mur­phy’s two ear­lier tri­als was ex­cluded and the test for the com­mis­sion was the sec­tion 72 pro­vi­sion.

It has been im­pos­si­ble to read all the doc­u­ments made avail­able on Thurs­day. Many of the allegations are un­ten­able and ma­li­cious. For many peo­ple, how­ever, there were too many fires and too many ques­tions raised by cred­i­ble fig­ures. A sick Mur­phy in­sisted on re­turn­ing to sit on the bench — briefly. From first to last he declared his in­no­cence. His legacy as a judge re­mains im­pres­sive — in some ways the Ma­son Court fol­lowed in the di­rec­tion sig­nalled by Mur­phy.

In her bi­og­ra­phy of Mur­phy, Jenny Hock­ing says Lionel told his brother: “Don’t let the boys grow up in bit­ter­ness be­cause of what has hap­pened to me.” A for­mer head of the At­tor­ney-Gen­eral’s Department, Clar­rie Harders, a vet­eran civil ser­vant, was a reg­u­lar vis­i­tor at the end who re­calls Mur­phy say­ing: “Well, Clar­rie, we did some good things, didn’t we.”

On the af­ter­noon of Oc­to­ber 21, left-wing union boss Ray Gi­et­zelt sat with Mur­phy, hold­ing his hand. Hock­ing says: “As Lionel Mur­phy’s fi­nal judg­ment was be­ing handed down in the High Court of Aus­tralia, he drifted into a coma and died at 4pm.”

At the memo­rial ser­vice Wran, se­lect­ing his words for their spe­cial mean­ing, said of Mur­phy: “The law and its in­sti­tu­tions did not fail. Only their mis­use and abuse pro­cured his or­deal … He was my mate.”

The com­mis­sion doc­u­ments are a mass of fact, rev­e­la­tion, al­le­ga­tion, ru­mour, spec­u­la­tion, spite

and premier Neville Wran

For­mer NSW chief mag­is­trate Clar­rie Briese

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