[1987] Reform A characterised the work of many of his judicial lionel murphy: the rule of law predecessors on the High Court, where they stood in the way of ensuring that a just result was reached in the issue before the court. for all australians who need justice. This is Senator, the Hon Arthur Gietzelt the dedication of the first of what will un­ Minister for Veterans’ Affairs doubtedly be a series of books dealing with the role of the late Justice Lionel Murphy in There is no person who has done more during the Australian legal history. The book, Lionel short history of this nation to ensure that the people of Murphy: The Rule of Law, edited by Jean and j Australia have their rights and liberties protected. Richard Ely (Akron Press, Sydney, 1986, jj The Hon Peter Duncan, MP 312pp, $17.95) is a collection of judgments ! He was a man who inevitably stirred up enmities, but I delivered by Justice Murphy in the High never heard him speak a word of personal denigration Court of Australia between 1975 and 1984. of his harshest critics, even during the travail of his last The tone of the book is set by a foreword by two years. I envied him his charity which, I confess, I Professor Manning Clark who writes that ] do not share. Justice Murphy was a man who ‘devoted his The Hon James McLelland, Former Chief Justice, Land and Environment Court public life to the abolition of ignorance, superstition and tyranny’, and whose judg­ Fairness, justice and tolerance were a universal ments will be read by the ‘victims and the op­ imperative for him, but he tempered his understanding pressed ... as the words of a man who gave of these things with an understanding of the wrongs them hope’. A brief preface outlines his life. which a rigid and unvarying application of law and Then follows an introductory chapter and the rights would impose. judgments, broadly classified into nine dis­ The Hon Bill Hayden, MP Minister for Foreign Affairs crete areas. These include:

He could not be a mere bystander to history. He • the accused and the rule of law; brought to his high office judicial penetration and • security organisations and the rule of analytical skills of the highest order, but judicial law; detachment was not his forte; nor would he have • when the government breaks the law — claimed it. Detachment was low in his value system, just as compassion was very high. who can take it to court?; The Hon Barry Jones, MP • the law and social change; Minister for Science • the Australian Constitution ; and • the doctrine of precedent and judge- What distinguished Lionel Murphy was his belief in made law. the rights of the citizen against the state. The Hon Clyde Holding, MP justice in the democratic mode. The frame­ Minister for Aboriginal Affairs work within which the judgments were selec­ As Leader of the Opposition in the Senate, Lionel ted is constructed in a brief introductory Murphy was an unwavering voice for reform. It is easy chapter. In the opinion of the editors, Justice « these days to forget the courage and personal Murphy’s judgments may be distinguished commitment that it took to argue for social reform in from those of his fellow judges on the High the 1960s in Australia. Court in that they contain more argument As an advocate for the Australian people Lionel Murphy’s most dramatic achievement no doubt was to and that Justice Murphy is more candid argue Australia’s case against French nuclear testing in about declaring and giving weight to value the Pacific before the International Court of Justice in judgments and considerations of public pol­ The Hague — and, of course, to win it. icy. Underlying these differences is said to be The Hon RJL Hawke, AC, MP Justice Murphy’s view that good judgment Prime Minister must be judgment in the democratic mode, He had a vision which I believe was illimitable. and that a good judge is directly accountable The Hon Pat O’Shane, AM to the people, collectively, to deliver judg­ Sydney Magistrate ment in accord with prevailing concepts of [1987] Reform 5 what is ‘fair, just, reasonable and permis­ This power, like all others in s51, must be read sible’. Consequently, the democratic judge broadly and generously ... In my opinion, Parliament correctly considered that its legisla­ goes beyond strict statutory interpretation to tive power with respect to marriage extended to inquire into the effect the legislature intended the protection of all children who become part of the provisions to have; and nor is he or she the family which arose from the marriage. It is strictly bound by precedent. Unfortunately, ancillary and incidental to the power with respect however, this introductory chapter does not to marriage to make provision for their custody, guardianship and maintenance ... This reflects go beyond this fairly superficial outline of the the realities of our society, that such a family process of judicial reasoning. Nor do the often includes children who are not strictly born prefatory remarks in each section do more of the marriage, but are absorbed into it. than briefly outline the particular issues ad­ dressed. It is up to the reader to distill the constitutional guarantees. This section con­ principles of Justice Murphy’s jurisprudence tains extracts from cases dealing with consti­ from the judgments themselves. tutional provisions which provide for trial by jury for indictable offences (s80); freedom of trade (s92); and religious freedom (si 16). Jus­ constitutional law. Two sections of the tice Murphy’s approach to s80, which pro­ book deal with the constitution and guaran­ vides that the trial ‘on indictment’ of any of­ tees under the constitution respectively. The fence against the law of the Commonwealth judgments extracted in the first of them have shall be by jury, illustrates his approach to been selected to support the editors’ view constitutional guarantees of civil liberties in that, in interpreting the constitution, Justice general. The limitations of s80 had long been Murphy can be described as ‘democrat, cen­ recognised. In Justice Murphy’s opinion, tralist, nationalist and internationalist’. They however, s80 contains ‘a guarantee of a fun­ include McKinlay’s Case, in which it was damental right to trial by jury in criminal contended that the constitutional provision cases (at least in serious ones)’. In Li Chia that the House of Representatives be ‘chosen Hsing v Rankin, he said : by the people of the Commonwealth’ re­ quired that, so far as practicable, each elec­ The judicature provisions of our Constitution torate should contain the same number of should be read in the light of the deep attachment people; and a series of cases on the extent of for the people for whom the Constitution was Commonwealth power in a number of areas, made to trial by jury for criminal offences ... The including the Franklin Dam Case, which was jury system is the main social defence against governmental or other oppression, the main in­ concerned particularly with the scope of the strument for preserving the liberties of the people external affairs power. In recent years, the [and] unless some serious meaning is given to s80 High Court has taken an increasingly broad the evils against which trials by jury protect the view of the extent of Commonwealth powers public will be unchecked. as demonstrated, for example, by the deci­ sions in Koowarta and the Franklin Dam law and social change. This is the heading Case, in which Justice Murphy was in the ma­ for a disparate collection of judgments cho­ jority. In Cormick, however, his was a dis­ sen to illustrate Justice Murphy’s concern senting view. The case was concerned with with those who are disadvantaged politically, the validity of a section of the Family Law socially and economically. It includes an ex­ Act which gave the Family Court jurisdiction tract from Koowarta’s Case, in which the Ra­ in cases involving an ex-nuptual child who cial Discrimination Act 1975 (Cth) was held was treated by the spouses as a child of the to be valid; two applications for special leave family and who was ordinarily a member of to appeal against sentence; several cases on the household. The section was held to be in­ the law of negligence; and Dugan's Case, in valid. In his dissenting judgment, Justice which the High Court held that a person con­ Murphy said of the marriage power: victed in NSW of a felony in respect of which [1987] Reform 6 he was sentenced to death, but whose sen­ conclusions. There is no doubt that a collec­ tence was commuted to life imprisonment, tion of judgments such as this serves a very cannot maintain an action in NSW for a civil useful purpose. The reader is struck particu­ wrong. In his dissenting judgment in Dugan, larly by the clarity of Justice Murphy’s prose. having surveyed European and American Further, it clearly demonstrates the range of law Justice Murphy had this to say about the sources of law tapped by Justice Murphy in evolution of the common law: his decision making. Although there are problems inherent in the system of classifica­ tion adopted by the editors, and little in the The common law is made by judges in the area left to them by constitutions and legislation; for way of contextual analysis, the book provides this reason, it is often more accurately described a highly accessible means of acquaintance as judge-made law or decisional law. Australian with the legal philosophy of a great Austral­ courts (especially this Court) should, while taking ian judge. into account the advantages of predictability, evolve the common law so that it will be as ra­ tional, humane and just as judges can make it. The present conditions of the common law is the lionel murphy on the powers of responsibility of the present judges. If this were the executive not so, we would still be deciding cases by follow­ ing the decisions of medieval judges. In administrative law decisions, Justice Murphy often took a considerably more re­ the criminal accused. The longest section of stricted view of the role of the courts and the book contains extracts from a number of their capacity to review both decisions made judgments in which Justice Murphy ex­ by the executive branch of government and pressed concern about procedures applicable decisions made in the exercise of a statutory in criminal trials. The selected judgments ad­ discretion than did his fellow justices. In two dress such issues as the dangers of relying on important administrative law cases, Re circumstantial evidence, the problems inher­ Toohey: ex parte Northern Land Council 38 ent in the use of disputed confessions and the ALR439 and FA I Insurances Limited v rights of accused persons to legal representa­ Winneke & Ors 41 ALR1, Mr Justice Murphy tion. Underlying these judgments is the fun­ was in a minority of one against the remain­ damental principle that a person is presumed der of the full court of the High Court. The innocent until convicted by law. This pre­ former case concerned the making of a regu­ sumption of innocence was crucial to his lation by the Administrator of the Northern conclusion in R v Darby that a conviction for Territory on the advice of his Executive conspiracy cannot stand if the alleged co­ Council which was designed to thwart an conspirator has been acquitted. He said: otherwise legitimate claim under the Aborigi­ nal Lands Rights (Northern Territory) Act 1976 (Cth). Land rights claims could only be A criminal trial ... begins with the presumption made under that section for, inter alia, ‘un­ that the accused is innocent. The presumption is of course rebuttable, but only by proof of guilt alienated Crown land’ which was defined not beyond reasonable doubt. If the prosecution fails to include land in a ‘town’. Following the to adduce such proof and the accused is acquit­ making of a claim by the Northern Land ted, the presumption is said to become irrebut- Council for rights to certain undeveloped able or conclusive. In truth the presumption is re­ and sparsely populated land about six kilo­ placed by a judgment of innocence. metres from Darwin by sea but remote from it by land, the Commissioner determining the Similarly, the presumption of innocence was claim decided that the land claimed was land crucial to his decisions that special leave to in a town. Two days later a regulation was appeal against their convictions should be made by the Administrator prescribing that granted to the Chamberlains. the same land was subject to the Town Plan­