No Deliberate Innovators: Mr Justice Murphy and the Australian Constitution
| Author | Paul Bickovskii |
| Published date | 01 December 1977 |
| Date | 01 December 1977 |
| DOI | http://doi.org/10.1177/0067205X7700800403 |
| Subject Matter | Comment |
COMMENT
NO DELIBERATE INNOVATORS:
Mr
JUSTICE MURPHY
AND
THE
AUSTRALIAN CONSTITUTION
By
PAUL
BICKOVSKII*
On 10 February 1975 the former Attorney-General of Australia,
Senator Lionel Murphy, Q.C., was appointed to the High Court
as
its
twenty-sixth puisne Justice. The droit de seigneur
is
not unknown in
Australian politicallife,l but on this occasion its exercise was attended
by agood deal of controversy in both political and legal circles. Indeed,
in the latter arena something of that controversy remains.
It
is,
of course,
less
than three years since his Honour's appointment
and an analysis of his jurisprudence may
at
this stage seem somewhat
premature-.
It
is
pleaded in justification, however, that certain features
of this jurisprudence are already clear, and that they appear
so
at
variance with orthodoxy
as
to warrant discussion.
Mr
Justice Murphy has attracted the attention of awide range
of
commentators, not merely those in traditional legal circles. While the
reasons for this phenomenon are not altogether easy to explain, they
relate (in the writer's view) to his Honour's attempts to realise his own
perception of the judge
as
reformer.
During his parliamentary career Senator Murphy showed an
impatience with the reluctance of the Australian judiciary to reflect in
even ageneral way the priorities of a society which in practice had long
since forsaken an individualist philosophy.
It
was with the very object
of reflecting current
or
"progressive" attitudes, if indeed not of shaping
them, that much of his legislation was introduced. His successes, such
as
the Death Penalty Abolition Act 1973
(Cth),
the Trade Practices
Act 1974
(Cth),
the Family Law Act 1975
(Cth)
and the Racial
Discrimination Act 1975
(Cth),
as
well as his failures (for example,
the Human Rights Bill) all indicate apreoccupation with the need for
the law to be involved in apositive way with matters of general social
and economic importance. Similarly, in establishing the Australian
Law Reform Commission, Senator Murphy has provided apermanent
mechanism to help ensure that the law remains relevant to the needs
and objectives of society.
Probably
Mr
Justice Murphy's greatest contribution since his
appointment has been to cause us to rethink and reassess some first
principles. This
is
particularly the case in his constitutional judgments,
with which this Comment
is
concerned.
It
is
proposed to analyse his
Honour's constitutional jurisprudence from the point of view of legal
*B.A. (Syd.), LL.B. (Hons) (A.N.U.).
1
Four
previous Federal Attorneys-General have been appointed to the High
Court. They were Isaacs J., Higgins J., Latham C.J. and Barwick C.l.
460
1977]
No
Deliberate Innovators 461
orthodoxy, but having regard at the same time to notions of judicial
engineering and activism.
COLONIAL RELICS
On
the whole the legislative endeavours of the Whitlam Government,
when challenged, have been found to be constitutional,2 even if there
has been an acute division of opinion on the High Clourt. But the
former Government's record of success elsewhere
is
not as outstanding.
In
particular it achieved little in its attempts to sort out the web of
rules and conventions which constitute the constitutional relationships
between Great Britain, the Commonwealth and the States.3
It
would be wrong to suggest that the question of rationalising
or
modifying these relationships has not been of interest to the States
themselves,4 but the objectives of the Whitlam Government in this
respect were seen as beyond its (popularly perceived) electoral man-
date, if not its constitutional competence.
The relationships between the States and Westminster were seen by
that Government as relics of
our
colonial past, and as demeaning and
inconsistent with Australia's status
as
an independent nation. The
difficulties which the former Government faced in tampering with these
relics were both political and legal. Politically, many did not share its
view of the need to remove them; legally, the relics continue to be of
relevance to the constitutional structure of the States.
Two particular aspects of this question have come before the High
Court since
Mr
Justice Murphy's appointment, and on both occasions
his Honour has advocated astrongly nationalist solution.
Appeals
to
the
Privy Council
Before discussing the issues raised by Murphy J. in Commonwealth
v.
Queensland (the Queen 0/ Queensland Case)5
it
may be appropriate
to note briefly what may be termed the "orthodox" current position
with regard to appeals to the Privy Council from courts in Australia:
(i)
Apart from inter se questions, no appeals lie from the High
Court in any matter. This position has been reached through the com-
bined operation of the 1968 amendments to the Judiciary Act 1903
(Cth),
the Privy Council (Limitation of Appeals) Act 1968 (Cth)6
and the Privy Council (Appeals from the High Court)
Act
1975
(Cth).7
2
The
Petroleum
and
Minerals Authority Act 1973
(Cth)
was found
to
be
unconstitutional
for
procedural,
not
substantive reasons: Victoria v. Common-
wealth (1975) 7A.L.R. 1.
3
For
an
early assessment
of
the
program
and its chances
of
success, see Sawer,
"The
British Connection" (1973) 47 A.L.J. 113.
4E.g.
Law
Reform Commission
of
New
South Wales, Working Paper on
Legislative Powers
(1972);
Kewley, Report on the Imperial
Acts
Application
Act
1922 Melbourne: Government Printer
(1975).
5(1975) 7A.L.R. 351.
f)
Upheld in Kitano v. The Commonwealth (1975) 132 C.L.R. 231.
7
The
constitutionality
of
this
Act
is
not
totally beyond doubt;
it
rests upon
the view
that
"limiting" in s. 74
of
the Constitution extends to abolishing. See also
the Queen
of
Queensland Case (1975) 7A.L.R. 351, 374 per Jacobs J.
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