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"Justice Lionel Murphy As More Than Celluloid Hero"

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AUSTRALIAN JOURNAL OF LAW AND SOCIETY (1993)9 "JUSTICE LIONEL MURPHY AS MORE THAN CELLULOID HERO" Daryl Dellora’s Documentary/Video "Mr Neal is entitled to be an Agitator" (1991) released by Ronin Films, Colour Optical 16mm, Film Art Doco Pty Ltd Barbara Ann Hocking 1 Introduction There is currently an increasing interest on the part of legal educators in the use of the media and the video as viable means of conveying aspects of the legal education process. The range of important videos specifically concerned with the process and specifics of legal education itself and their introduction into legal education is to be welcomed.2 No less important are the videos Note: Barbara Ann Hocking, Faculty of Law, Griffith University. The author would like to thank the Lionel Murphy Foundation for the scholarships awarded in 1988 and 1989 which assisted in the pursuit of a PhD (at the University of Queensland Faculty of Law) on the law of conspiracy. The author had no part in the production of the film but is the daughter of Mrs Barbara Hocking, who gave legal advice to the makers of the documentary and the sister of Dr Jenny Hocking, who appeared in the documentary. For example, Griffith University’s Law Faculty has recently produced a video entitled "From Barter to Bargain" which conveys aspects of the development of the law of contract and elements of contract formation. 124 REVIEWS and documentaries which focus upon particular aspects of the law and the administration of justice. This review looks at one such documentary: the film produced by Daryl Dellora entitled "Mr Neal is entitled to be an Agitator". A review is timely given the support evidenced for this documentary by its return to the ABC television screens on "True Stories" only recently. The focus of the documentary is on the late Justice of the High Court, Justice Lionel Murphy and the title stems from Justice Murphy’s now renowned comment in the Neal case: "Mr Neal is entitled to be an Agitator". The film presents us with a view of Murphy which prompted The Bulletin’s letters review page to be headed "Lionel Murphy as Celluloid Hero". This reviewer’s opinion is the Murphy, thought-provoking documentary cannot be assessed so simplistically. The Murphy "Affair" - A Brief Background The film attempts to break with the stranglehold which the so-called "Murphy affair" has had upon assessments of the late Judge’s contribution to Australian legal and political life. The phrase "Murphy affair" requires a brief mention. Gary Sturgess argues the media’s betrayal of its own pursuit of a "story" to the exclusion of an accurate interpretation of events was exemplified in the Murphy case: to commence with, simply by the calculated and persistent use of the term "Murphy affair" which represented in itself a "media epithet" designed to "convey a sense of scandal".3 By this view, the media therefore arguably provided a particular political context which facilitated the implication of misbehaviour that would be required to remove a Judge under section 72 of the Constitution. The film confronts the reality of the interconnection between the phone tapping operation which led to the surfacing of the so-called "Age" tapes and stresses the illegality of that operation. That operation was undertaken without warrant by the Bureau of Criminal Investigation of the New South Wales Police despite the formal legal controls on phone tapping. Its ostensible purpose was an undercover tactic within a long running campaign against organised crime. Neville Wran attempts quite persuasively to twist that label around in his interviews in the film and argues the illegal phone tapping operation itself represented an extraordinary feat of organised crime. G Sturgess, "Murphy and the Media" (1987) in Lionel Murphy A Radical Judge, J Scutt (ed), 213. 125 AUSTRALIAN JOURNAL OF LAW AND SOCIETY (1993) 9 The film stresses the strange context to the leakings of the contents of those tapings to the press and the somewhat symbiotic relationship and media speculation that ensued. As Professor Blackshield has observed elsewhere, the publication of the first substantial material in relation to the Age tapes, on 2 February 1984, was under the heading "Secret Tapes of a Judge" even though the bulk of the material was said to relate to organised crime.4 Murphy was then named in Parliament5 and subsequently subjected to allegations and insinuations characterized by Blackshield as essentially an attack on the High Court itself. It goes without saying conviction for a criminal offence would comprise the necessary proven misbehaviour required for removal of a judge of the High Court under section 72 of the Constitution. The film is at pains to emphasise this trial was Murphy’s second: the first was the attempted private prosecution for conspiracy known as the Sankey case which was initiated during the Whitlam government’s period in office.6 The film carefully attempts to draw interconnections between these trials, rather than adhering to the traditional view there was no connection and that neither was a political trial. Far from seeing the trials as isolated causes celebres involving a public figure, the film carefully attempts to stress an acknowledgment of the political interconnections between Murphy’s trials would finally place the credibility of the trials, rather than the credibility of the judge, on trial. The message in the film is conveyed through a series of absorbing interviews with prominent supporters of the late Judge. The central concern of Murphy’s supporters, many of whom are interviewed in the film, has been to attempt to alter the lens being focussed upon Murphy and to suggest the intense concentration of the final years ought to be seen against a background of long-standing commitment to political and legal reform. Against the background of the final years of Murphy’s life, the documentary therefore attempts to re-focus the lens upon Justice Murphy and documents far more than the demise of the judge in the midst of the furore and innuendo of his difficult and often tragic final years. While acknowledging this is indeed a partisan approach, the film makes it clear A R Backshield, "Murphy" (1985) Law Institute Journal 8%. In the NSW Parliament on 21 February' 1984 and the Queensland Parliament on 6 March 1984. Connor v Sankey and Others; Whitlam v Sankey and Others (1976) 2 NSWLR 570 (allegation of conspiracy - by statute, in Australia, to effect purpose unlawful under law of the Commonwealth and at common law, within New South Wales and Australian Capital Territory, to deceive the Governor-General). 126 REVIEWS there is a vital need for a re-dressing, re-assessment and consequent balancing of views. All Those in Favour Many prominent legal commentators on the Murphy case have written specifically in support of the judge and many of these appear in this documentary and convincingly reiterate that support. Prominent public and legal figures such as Dr Jocelynne Scutt, Professor Blackshield and Neville Wran have stressed, and stress again, the implications of the trial of a so- called ‘radical’ High Court judge and former Attorney General in the Whitlam government extend far beyond the immediate consideration of the means of removal of Australian Justices of the High Court. Another of their major themes has been the part played by the media, and throughout the documentary, the presence of the media lurks like time’s winged chariot. Another major commentator on the case, Associate-Professor David Brown, re-emphasizes arguments raised in a series of articles in the Legal Service Bulletin (recently renamed as Alternative Law Journal during the course of the "Murphy affair". In his interviews in the film, Brown stresses the notion of a "hardening effect" due to the fact of a legal trial and the inquisitorial nature of and "sense of certainty" generated by the media reporting.7 The perspective most commonly pursued by the various supporters of the judge has been the major journalists involved failed to perceive the rumours about the judge in a framework that recognising the enemies he undoubtedly possessed. Those supporters focussed upon setting the surveillance operation within a different perspective which might allow some interconnections to be drawn between Murphy’s political and public life and the seemingly relentless inquisitorial aspects to his subsequent trial and death. All Those Against Brown, "Themes in an Inquisition: Justice Murphy and the Liberal Press” (1987) 10 UNSW Law Journal 60. Also D Brown, G Boehringer, R Hogg, and M Tubbs, "The Murphy Case: Some Issues" (1985) Legal Service Bulletin 153 and D Brown, G Boehringer, R Hogg, and M Tubbs, "Re-presenting Justice Murphy. A Contemporary Inquisition" (1986) Legal Service Bulletin 147. 127 AUSTRALIAN JOURNAL OF LAW AND SOCIETY (1993) 9 Galligan8 has noted the unfavourable reaction of the opposition and the Conservative press to the appointment of Murphy to the High Court.9 One of the most important revelations in his book concerns the Victorian Bar Association’s attitude to Murphy’s appointment. Galligan notes in one of its "less illustrious convocations" on a Friday afternoon, the Victorian Bar Association met for more than an hour and a half and debated whether to adopt a motion deploring Murphy’s appointment. The motion, according to Galligan, read: That in order to maintain the prestige of the High Court of Australia as the principal appellate court of Australia and to ensure that the public have confidence in its decisions, it is essential that positions on the bench be offered only to persons who are pre-eminent within the legal profession and whose fitness for office is not a matter of public controversy.
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