Lionel Murphy. The Rule of Law

Abstract

One cannot speak on this occasion of all of Lionel Murphy's public life at the Bar, in Parliament, in government and on the Court. This book deals only with his recent life. Permit me to say to the editors and the publishers that they have performed a singular public service. Very many people will come to see why Lionel Murphy mattered ?to friends and foe alike. I make one point against the editors. I would take issue with them over their treatment of the doctrine of precedent in our courts, but I shall not do it here. It is not an easy question but Murphy was right to call much of it into question. The book constitutes a rare conspectus of the work of a person in high public office. Not many such persons seem to have a consistent, let alone a militant and defensible position against received values and established institutions. Murphy was, in truth, probably unique in our history in this respect, certainly amongst high office-holders. He was an outstanding critic of the way we do business in our courts, and an infinitely persuasive critic at that. It is one of the marks of government in Australia that you do not promote such people to high office. This exclusion is one of the consequences of our authoritarian modes, so many of which derive from our early connection with Great Britain ?that class-ridden society that has the longest continuous record of organised public power of all the states of the world, and which has thrived on the exploitation of the poor. I am not one of those beguiled by England's claim to be the ideal embodiment of the values and practices of a free society. I give as an example its laws of free speech and secrecy. An English criminal trial is a one-sided engine of unarguable oppressive intent, likewise its prison laws and gaols. Yet we have adopted most of the English procedures and inequalities for dealing with those who fall under criminal prosecution here. The English state has a cruel history. England made us what we are. Even in 1840, 50 years after foundation, 30 per cent of the population of New South Wales were persons under sentence, convicts. Our laws and institutions for the government of this mass of unequal persons were formed accordingly. The mould used then forms so much of what we do today. The demand for an end to transportation in the 1840s was fuelled by the demand for an end to oppressive and corrupt government, then serving mainly those who exploited bonded labour. We should always keep in mind that we have taken our fundamental arrangements from those times. Murphy was formed in the era of the war against fascism, in the era, in this country, of the demand for a new order, in the era of John Curtin and the formation of the United Nations Organisation. Speaking in the House of Representatives, on 17 July 1944, in connection with the formation of the United Nations Organisation, Curtin said: