The appointment of Justice Bernard Murphy to the Federal Court of Australia - Part One
Tuesday, 19 February 2013
As we reported back on 21 October, 2012, Judge Bernard Murphy's elevation to the Federal Court of Australia was and remains a controversial appointment.
Now, thanks to a Freedom of Information application lodged by Hedley Thomas of The Australian newspaper, we can see a lot more about just how unusual that appointment was. Hedley has filed this piece which is running this afternoon on The Australian's website.
The process for making an appointment as a Judge is of the Federal Court is supervised by the Federal Attorney General and his staff. Ultimately the person selected by that process is put forward to the Prime Minister and Cabinet, and then the appointment is made by the Governor General.
I'll present here some documents that set out parts of the process that resulted in Julia Gillard's former supervising partner Bernard Murphy being appointed as a Federal Court Judge on about $400 grand until the age of 70, then to be the recipient of a handsome pension for life.
First up to Peter Gordon's statement about the circumstances of Bernard Murphy's departure from Slater and Gordon. I've posted Peter Gordon's draft statement here, but some of the relevant extracts from it include:
It is no secret and it has never been, that the firm’s senior partner in 1995, Bernard Murphy, fell out with the rest of the Slater& Gordon partnership over the Cheryl Harris-Ian Smith case and subsequently the AWU/ Bruce Wilson matters. That falling out was irreparable and we ultimately went our separate ways and but for a few professional interactions, have not interacted since.
Continues below
Likewise, it is no secret that Julia Gillard worked in the industrial department of Slater & Gordon in 1990 through 1995 where she was accountable to Mr Murphy. She was also within Mr Murphy’s‘camp’ of close associates and friends at the firm at the time. Mr Murphy and Ms Gillard acted for the Victorian state branch of the AWU from 1991/1992 until 1995 and also for two of its officials Mr Bruce Wilson and Mr Ralph Blewitt. That has also been well known since the early 1990s.
Likewise, it is no secret that Mr Murphy and Ms Gillard left the firm in late 1995 in circumstances where their relationship with the equity partnership group had become fractured, and trust and confidence evaporated. Mr Murphy’s partners had abiding and deeply felt concerns about his handling of the Cheryl Harris case. We also had concerns about various aspects of the way in which Mr Murphy and Ms Gillard had acted with regard to Mr Wilson and the AWU. We felt that a number of matters required explanation and we were concerned as to whether they had acted consistently with their obligations of utmost good faith with regard to their partners.
According to Managing Partner Peter Gordon, Bernard Murphy left Slater and Gordon in circumstances where trust and confidence in him had evaporated. Peter Gordon was concerned about whether Bernard Murphy and Julia Gillard had lived up to their obligations of utmost good faith to their partners.
But it seems that even with the Prime Minister responsible for receiving and acting on the Attorney General's recommendation to appoint Bernard Murphy as a Judge, the Commonwealth of Australia was unaware of this chapter in Mr Murphy's past. Likewise, it appears from a reading of the admittedly heavily redacted documents released under FOI, that Ms Gillard's previous professional relationship with Mr Murphy and the allegations levelled jointly against them as to their apparently unsatisfactory professional conduct was never disclosed.
This document details the Commonwealth's investigations into controversial matters that may affect Justice Murphy's appointment and ability to carry out his duties. It is a briefing note to the Attorney General from his staff guiding him through the process of appointment and alerting him to any potential problems. It's breathtaking that the Slater and Gordon problems and Justice Murphy's involvement in The AWU Scandal is not mentioned.
This part of the briefing document to the Attorney General contains a large redacted component, whatever is contained within it, it was not felt to be of sufficient import to halt the process.
The Attorney General wrote to the Prime Minister describing the process and persons put forward for appointment. No one, including the Prime Minister, is recorded in these documents as speaking out about the relationship between the PM and Mr Murphy in those controversial circumstances of the mid-990s.
Claire McAlister is the official who is responsible for Judicial Appointments in the Federal Government's Courts. In this damning email, she discloses that she was not made aware of the link between Ms Gillard and Mr Murphy until she read about it in the media. I wonder how the Chief Justice felt about it?
Soon after the appointment was announced, questions like these from the media came in.
And partial answers went out.
This email was one of my favourites.
A judgement call indeed. That word again - judgement - and Julia Gillard.
Here are all the documents as released by the Attorney General's department.