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
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