Lionel Murphy - Key Judicial Quotes

Key Judicial Quotes

Freedom of religion: "Religious freedom is a fundamental theme of our society. That freedom has been asserted by men and women throughout history by resisting the attempts of government, through its legislative, executive or judicial branches, to define or impose beliefs or practices of religion. Whenever the legislature prescribes what religion is, or permits or requires the executive or judiciary to determine what religion is, this poses a threat to religious freedom. Religious discrimination by officials or by courts is unacceptable in a free society ... In the eyes of the law, religions are equal. There is no religious club with a monopoly of State privileges for its members. The policy of the law is "one in, all in."

"The faith of members of various religions has inspired concern for others which has often been reflected in humanitarian and charitable works. However, the claim to be the one true faith has resulted in great intolerance and persecution. Because of this, the history of many religions includes a ghastly record of persecution and torture of non-believers. Hundreds of millions of people have been slaughtered in the name of god, love and peace. In the effort to uphold "the one true faith" courts have often been instruments for the repression of blasphemers, heretics and witches.... Most organized religions have been riddled with commercialism, this being an integral part of the drive by their leaders for social authority and power in conformity with the 'iron law of oligarchy'."
Freedom of Speech: "The absence of a constitutional guarantee does not mean that Australia should accept judicial inroads upon freedom of speech which are not found necessary or desirable in other countries. At stake is not merely the freedom of one person; it is the freedom of everyone to comment rightly or wrongly on the decisions of the courts in a way that does not constitute a clear and present danger to the administration of justice."
Trial by Jury: "The Constitution s.80 states: 'The trial on indictment of any offence against any law of the Commonwealth shall be by jury ...' This Court has construed this section to mean that if there be no indictment there must be a jury but there is nothing to compel procedure by indictment…In a famous dissent Dixon and Evatt JJ described this construction as a mockery of the Constitution and considered that anyone charged with any serious offence against the laws of the Commonwealth was entitled to trial by jury (Lowenstein (1938) 59 CLR 556 at 582)" "The jury is a strong antidote to the eletist tendencies of the legal system. It is "the means by which the people participate in the administration of justice" (Jackson v the Queen (1976) 134 CLR 42 at 54). The greatest respect should be given by appeal courts to jury verdicts and any attempt to downgrade the jury to a mere nominal or symbolic role should be restricted."

Preservation of the world's Natural heritage:"Suppose that in the next few decades, because of the continuing rapid depletion of the world’s forests and its effect on the rest of the biosphere, the survival of all living creatures becomes endangered. This is not a fanciful supposition ... Suppose the United Nations were to request all nations to do whatever they could to preserve the existing forests. Let us assume that no obligation was created (because firewood was essential for the immediate survival of people of some nations). I would have no doubt that the Australian Parliament could, under the external affairs power, comply with that request by legislating to prevent the destruction of any forest" The world’s cultural and natural heritage is, of its own nature, part of Australia’s external affairs. It is the heritage of Australians, as part of humanity, as well as the heritage of those where the items happen to be."

Constitutional prohibition of slavery: "It would not be constitutionally permissible for the Parliament of Australai or any of the States to create or authorize slavery or serfdom. The reason lies in the nature of our Constitution. It is a Constitution for a free society."

Constitutional prohibition on civil conscription for medical or dental services: The Australian Constitution "contains an implication of a free society which limits Parliament's authority to impose civil conscription.

Common heritage of humanity: "The preservation of the world’s heritage must not be looked at in isolation but as part of the co-operation between nations which is calculated to achieve intellectual and moral solidarity of mankind and so reinforce the bonds between people which promote peace and displace those of narrow nationalism and alienation which promote war ... The encouragement of people to think internationally, to regard the culture of their own country as part of world culture, to conceive a physical, spiritual and intellectual world heritage, is important in the endeavour to avoid the destruction of humanity."
Australian Aboriginal History:"The history of the Aboriginal people of Australia since European settlement is that they have been the subject of unprovoked aggression, conquest, pillage, rape, brutalization, attempted genocide and systematic and unsystematic destruction of their culture…a law aimed at the preservation, or the uncovering, of evidence about their history is a special law with respect to the people of this race."
Theory of Class Struggle:"Public statements that the courts are involved in the class struggle may tend to impair confidence in the courts (and amount to criminal contempt on the Dunbabin standard) but do not constitute any clear and present danger to the administration of justice. If all those who advocate that the courts are involved in the class struggle were to be imprisoned for criminal contempt there would not be enough gaols."
Right to Vote: "Section 41 is one of the few guarantees of the rights of persons in the Australian Constitution. It should be given the purposive interpretation which accords with its plain words, with its context of other provisions of unlimited duration, and it contrast with transitional provisions. Constitutions are to be read broadly and not pedantically. Guarantees of personal rights should not be read narrowly. A right to vote is so precious that it should not read out of the constitution by implication. Rather every reasonable presumption and interpretation should be adopted which favours the right of people to participate in the elections of those who represent them."
Privilege Against Self Incrimination:"The privilege against compulsory self incrimination is part of the common law of human rights. It is based on the desire to protect personal freedom and human dignity. These social values justify the impediment the privilege presents to judicial or other investigation…it is society’s acceptance of the inviolability of the human personality ... The history and reasons for the privilege do not justify its extension to artificial persons such as corporations or political entities""Because the privilege is such an important human right, an intent to exclude or qualify the privilege will not be imputed to a legislature unless the intent is conveyed in unmistakable language."
Legal Professional Privilege:" The privilege is commonly described as legal professional privilege, which is unfortunate, because it suggests that the privilege is that of the members of the legal profession, which it is not. It is the client’s privilege, so that it may be waived by the client, but not by the lawyer…Its rationale is no longer the oath and honour of the lawyer as a gentleman…It is now supported as a "necessary corollary of fundamental, constitutional or human rights."
Acquisition of Property on Just Terms: "... the extinction or limitation of property rights does not amount to acquisition. The transfer of property from one person to another, not the Commonwealth, does not amount to an acquisition within par. xxxi. Unless the Commonwealth gains some property from the State or person, there is no acquisition within the paragraph."
Control of Multinational Corporations: "There may be circumstances where Australia’s relationship with persons or groups who are not nation States, is part of external affairs. The existence of powerful transnational corporations, international trade unions and other groups who can affect Australia, means that Australia’s external affairs, as a matter of practicality, are not confined to relations with other nation states."