Lionel Murphy - Judicial Career

Judicial Career

In February 1975, Whitlam appointed Murphy to a vacancy on the High Court of Australia. He was the first serving Labor politician appointed to the Court since Dr H.V. Evatt in 1931 and the appointment was bitterly criticised. He resigned from the Senate on 9 February 1975 to take up the appointment. Murphy was the last High Court justice to have served as a Member of Parliament, and the last politician appointed to the High Court.

Murphy was one of only eight justices of the High Court to have served in the Parliament of Australia prior to his appointment to the Court, along with Edmund Barton, Richard O'Connor, Isaac Isaacs, H. B. Higgins, Edward McTiernan, John Latham and Garfield Barwick.

Although it did not become a constitutional requirement until 1977, it had been longstanding convention that a Senate casual vacancy be filled by a person from the same political party. However, on 27 February 1975, the Premier of New South Wales, Tom Lewis, controversially appointed Cleaver Bunton, a person with no political affiliations, to replace Murphy in the Senate, beginning the chain of events which led to the 1975 Australian constitutional crisis. These events in turn laid the groundwork for the 1977 constitutional change that now ensures such an appointment can never be repeated. Soon after his appointment to the bench Murphy visited Justice Menzies' old chambers in Taylor Square which would now be his. Staring at the volumes of British law reports on the shelves behind his desk he said "I want all of these to go". He replaced them with decisions from the US Supreme Court.

Mary Gaudron (later herself a justice of the High Court) stated at Lionel Murphy's Memorial Service at Sydney Town Hall: "There are so many words-reformist, radical, humanitarian, civil libertarian, egalitarian, democrat-they are all abstractions. My words are no better, but for me, and perhaps for those of us who believe in justice based on practical equality, Lionel Murphy was-Lionel Murphy is-the electric light of the Law. He would take an ordinary old abstraction-like equal justice-he would expose it, he would illuminate the abstraction, he would make its form stark, and so he could then say as he did in McInnis' case, these words: "Where the kind of trial a person receives depends on the amount of money he or she has, there is no equal justice."

Goldring concluded that Murphy's approach as a High Court judge was: "marked by a number of features: a strong nationalism conceding and welcoming the existence of States as political (albeit subsidiary) entities; a stalwart belief in democracy and parliamentary rule; a firm support for civil liberties; and overall a 'constitutionalism' in the classical, liberal sense of seeing a constitution as not simply a legal document, but rather as a set of values shared by the community."