12 - The Murphy Affair in Retrospect  pp. 280-311

The Murphy Affair in Retrospect

By Geoffrey Lindell

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The controversy about whether Justice Lionel Murphy should have been removed from the High Court is perhaps the least happy and least edifying of all the great constitutional landmarks considered in this volume. The time that has elapsed since the controversy was brought to an untimely end by his Honour's death in 1986 has not resolved the many issues that were brought to light by the affair. Nor has it provided any assurance of our ability to resolve them if they were to recur again in the future, even with the benefit of hindsight.

Much of this may be due to the sharply conflicting emotions which the central person in the affair evoked. In my experience people tended either to admire Murphy J for his lack of orthodoxy and radicalism as a reforming judge and politician or to deeply distrust and even hate him. My own view of him was mixed and unclear.

From an institutional perspective it is difficult to disagree with the view expressed by some that the protracted proceedings against Murphy J suggests that the present removal mechanism provided in s. 72 of the Commonwealth Constitution is unsatisfactory. A former Victorian Governor and Supreme Court judge, has observed:

When, on the first occasion of modern time in the country, the machinery designed in an earlier era to determine whether a judge ought to be removed, was put into operation in the case of Mr Justice Murphy, it was found quite inadequate to cope with the conditions of today. […]