AUSTRALIAN JOURNAL OF LAW AND SOCIETY (1993)9

"JUSTICE 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 , 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 Police despite the formal legal controls on phone tapping. Its ostensible purpose was an undercover tactic within a long running campaign against organised crime. 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.

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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 ’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 , 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.

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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 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.

And that this meeting of the Victorian Bar expresses its regret that this course was not adopted in the most recent appointment to the bench of the High Court.10

According to Galligan, the motion was finally defeated by 188 votes to 64 and Murphy was therefore formally welcomed.11

The view Murphy himself regarded his appointment to the High Court bench as a further part of his legal and political career was not one solely expressed by members of the academic and practising legal profession. Galligan quotes political commentator Michelle Grattan’s observation to the effect in shifting to the High Court, Murphy did not choose his exit from politics but rather "his transition to another phase of his legal career and his political career as well".12 Brown has note Colin Howard, echoing Lord Hailsham, suggested Justice Murphy should resign from the High Court Bench "because his controversial status represents a threat to the ‘perceived integrity of the High

B Galligan, Politics of the High Court, A Study of the Judicial Branch of Government in Australia, University of Queensland Press, St Lucia, 1987. To the effect that opposition leader Snedden said he did not welcome Murphy’s appointment because it had been made "for sheer political purposes" and would "lower the stature of the Court" while The Morning Herald and The Age pronounced the appointment "a bad one". Galligan, above, n 8, p 190. Galligan, above, n 8, p 191. (Citing report in The Age, 15 February 1975.) Galligan, above, n 8, 191. Galligan, above, n 8, p 190, citing The Age, 10 February, 1975.

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Court”'.13 There is no disputing the existence of strong doubts within the legal profession in relation to Murphy’s appointment to the High Court.14 Perhaps it is best to conclude this background section with a brief mention of Duncanson’s astute observation: it would appear from the claims of his detractors, the late Judge alone "gained Australia a reputation for judicial corruption".14

It is precisely not the purpose of this film to present the views of the late judge’s detractors. Implicit in this is not neglect or oversight but the recognition they have had their say and done their damage. The important point is while the film clearly canvasses the views of Murphy’s prominent supporters (some would doubtless say mates) at no time did this viewer doubt the need for the presentation of those views and the urgency of their arguments. Some of the most impressive interviews are with Ingrid Murphy, who recalls Justice Murphy’s love of life, his interest in change and wish to bring Australia’s laws into line with the rest of the world as well as his disappointment at the fact even when he was found innocent, the pressure and harshness of the lack of support for him had not lessened. Ingrid Murphy reflects upon "a very interesting man, ... an unusual man,... who ... spent all his time enjoying things and indeed, ... enjoyed every day of his life".

The Evidentiary Complication

Brown, "Judicial Independence: An Examination" (1986) Australian Quarterly (summer) 348 citing C Howard, "He should go with dignity" Sydney Morning Herald 6 August, 1986. For example, a strongly expressed view of the appointment was made by Geoffrey de Quincy Walker, who referred to fears held within legal circles:

"When Senator Lionel Murphy was appointed to the bench of the High Court of Australia in 1974, many practitioners at the Sydney bar who knew the visitors the Senator used to receive in his bar chambers privately predicted the kinds of problems and controversies which Murphy later brought down upon the Court. As it was too late to do anything about his appointment, however, little or nothing could be said in public."

Writing within the framework of an analysis of the "perversion of the enforcement of the law”, Walker asserts the late Justice Murphy regarded his appointment to the bench as providing "an opportunity to wage party politics by other means". Those other means included "intervention in criminal prosecutions". Relying upon the "evidence" in The Age tapes, it is asserted this "suggested a pattern of habitual involvement by Justice Murphy with the New South Wales government in matters which as often as not entailed interference in criminal proceedings or investigations". See Walker, G de Q (1987) The Rule of Law: Foundations of Constitutional , University Press, Carlton, 1988. I Duncanson, "Review of The Rule of Law by Geoffrey de Quincy Walker" (1989) 19 Western Australian Law Review 191 at 194.

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One of the most problematic aspects of the Murphy case concerns the interconnections between the media’s reporting of the entire series of events, particularly The Age tapes and the production of evidence for the Murphy trial. Several lawyers have addressed the problem of the production of "tainted" - illegally obtained - prosecution evidence in judicial proceedings.15 In an important article written in 1984, Professor Baxt16 drew attention to the newspapers carrying stories about illegal interception of telephone calls involving prominent members of the community. In a case note on the Francome case17, Baxt notes the UK Court of Appeal’s unanimous decision held the plaintiffs who sought to prevent the use of information in a commercial manner by a newspaper, were entitled to protection. One of the most interesting and most relevant findings by the Court concerns the rejection of the newspapers’ claim the interests of justice would be served by the publication of the relevant information. The Court said the defendants were not entitled to publish on the basis the public interest justified a breach of the criminal law and indeed, the public interest might be better served by giving the information to the police not by wider publication pending a trial.

Writing in the year of the so-called The Age tapes, Professor Baxt quotes tellingly from the decision in Francome’.

The media, to use a term which comprises not only the newspapers but also television and radio, are an essential foundation of any democracy. In exposing crime, anti-social behaviour and hypocrisy and in campaigning for reform and propagating the views of minorities, they perform an invaluable function. However, they are peculiarly vulnerable to the error of confusing the public interest with their own interest. Usually these interests march hand in hand, but not always.18

J Hunter, "‘Tainted’ Proceedings: Censuring Police Illegalities" (1985) 59 Australian Law Journal 709. R Baxt, "Illegal phone taps, privacy, confidential information and the public interest" (1984) The Chartered Accountant in Australia 61. Francome and another v Mirror Group Newspapers Ltd and others (1984) 2 All ER 408. Franccmbe and another v Mirror Group Newspapers Ltd and others (1984) 2 All ER 408 at 413 per Sir John Donaldson MR.

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On this point, the question of the interconnection between the media’s creation of a context within which to judge Murphy is specifically put to Don Dunstan in the film. Dunstan is asked:

Do you think that sort of process provided the background for the way in which the media merged that labelling of Murphy as controversial with a sense of corruption or criminality?

Dunstan replies "absolutely". Bill Murphy, the judge’s brother, suggests that the media’s shift from eulogising Murphy to attacking him "like a pack of wolves" when he was down, was simply a reflection of the sensationalism upon which the media depends in order to sell their papers.

Conclusion

One of the most interesting aspects of the Murphy "affair" concerns the apparent damning of the judge partly on the basis of his friendliness. Bill D’Arcy drew attention to this process in a letter to The Bulletin commenting on ’s critical review of the film, "Mr Neal is Entitled to be an Agitator". D’Arcy observed in her review, Bacon, "like most of Murphy’s detractors, looked only at his openness of character which led to his many friendships. She failed to recognise or consider his great achievements which changed the face of our society".19 Interestingly, as noted at the outset of this review, The Bulletin headed its page of review letters in relation to the film, "Lionel Murphy as Celluloid Hero". Yet the very purpose of the documentary is to trace the late Justice back and to set the perception of the judge in a deeper lens than permitted by the narrow focus of media attention and rhetoric that so successfully diverted public attention from his considerable achievements.

So the film reminds us an isolation and concentration of events, particularly where the interpretation is fundamentally made by the media, can lead to a complete distortion of reality. The presentation sets in concrete the perception and interpretation of the person by the public and possibly ultimately, by the law. One of the most vocal commentators on the entire episode, Associate Professor David Brown of the UNSW Law School, reiterates his view how the terms of the debate were indeed set in concrete and the pattern of

B D’Arcy, Letter to The Bulletin, 14 January 1992, p 9.

131 AUSTRALIAN JOURNAL OF LAW AND SOCIETY (1993) 9 perception were implicit from the outset. Brown has written elsewhere the "sense of certainty generated from media coverage organised on such terms" can be assessed under one simple title: "themes in an inquisition".20 Many highly memorable comments are made by the persons interviewed in the course of this film.

Neville Wran comments the best legacy Justice Murphy left was simply not to give in to the bastards:

... I think it’s a great thing for people to stand up for their rights. And if you’re in the right, don’t be steam-rolled, and it may be painful to stand up, it may be, it may be hurtful to your reputation, to have to undergo the scrutiny of inquiry, but if you’re right, do it.

Equally politically poignant is Don Dunstan’s observation about the Australian media, public figures and our entire democratic ethos:

The press in Australia sets out to denigrate political figures, and that includes conservative political figures. Political figures any way. Because the whole aim of the barons of the press in this country is to prove that nothing effective can be done by the community. That everything must be left to an uncontrolled, deregulated, private sector of people who are in control of the money power, and are the least accountable to the public, just as the press is completely unaccountable to the public.

It is one of the major achievements of this film, notwithstanding its clearly partisan support for Murphy, how it convincingly alters the lens and presents Lionel Murphy not as celluloid hero but as a complete person and public figure. For this viewer the implications of his trial and of the trauma of his final years are therefore persuasively set in a new context and seen to raise troubling and disquieting ethical questions.

Brown, above, n 13, p 61.

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