The Right to Agitate: Lionel Murphy and the Fight for Freedom of Expression

Lionel Murphy was Australia’s most reformist Attorney-General, and a fine High Court judge. Murphy was Attorney-General in the Whitlam Government from 1972-1975 and on the High Court from 1975 until his death in 1986.

One of Murphy’s finest moments in his 11 years on the High Court bench, led for much of it by the arch conservative Garfield Barwick, was his judgement in 1982 in Neal v The Queen.1  A case about freedom of expression and the way in which reactionary courts had a habit of sentencing more harshly for street offences that were laid as a result of participation in a protest, Murphy wrote his famous line, “Mr Neal is entitled to be an agitator.”

The memorable phrase was the title of an excellent 1991 film about Murphy and his legacy.2

In these times when freedom of expression is under attack by governments, universities and cultural organisations, Lionel Murphy’s judgment in Neal reminds us of our fundamental right to advocate unpopular and controversial causes.

Perhaps not surprisingly the case of Percy Neal, an Indigenous man, emanated from Queensland – at the time a deeply racist and authoritarian state.

The Queensland Court of Criminal Appeal3 increased a sentence of 2 months given by a magistrate for an assault by Neal on a white man, to six months. It was a low level assault that took place in an Aboriginal community. Neal wanted whites to leave the community and he allegedly used abusive and threatening language and spat at Collins. “The simple message Neal had wanted to deliver to Collins was for him to leave Yarrabah along with all other white people living there.”4

The High Court set aside the Queensland CCA decision but it is Murphy’s judgment that, consistent with this respect for American Legal Realism, understood the context of the case. It was about race.

As Murphy noted, the Queensland CCA had “a duty to see that racism is not allowed to operate within the judicial system” and “should have disapproved of the unjudicial manner in which the magistrate dealt with sentence”. A futile plea given the make up of that court at the time.

This critique was a prelude to the real point – freedom of expression and the right to agitate. And so Murphy wrote:

“ That Mr. Neal was an “agitator” or stirrer in the magistrate’s view obviously contributed to the severe penalty. If he is an agitator, he is in good company. Many of the great religious and political figures of history have been agitators, and human progress owes much to the efforts of these and the many who are unknown. As Wilde aptly pointed out in The Soul of Man under Socialism, “Agitators are a set of interfering, meddling people, who come down to some perfectly contented class of the community and sow the seeds of discontent amongst them. That is the reason why agitators are so absolutely necessary. Without them, in our incomplete state, there would be no advance towards civilisation.” Mr. Neal is entitled to be an agitator …”5

In a profession for, generally speaking, cautious and mostly functional dull prose, Justice Murphy’s remarks stand the test of time not only for their literary power but because of the content.

In Australia today, we increasingly don’t tolerate agitators. We dress up as antisemitic those who call out Israel as committing genocide in Gaza. We continue to arrest environmentalists like Bob Brown and others in the anti-forestry movement. We don’t mind massive climate change inducing projects, but the agitators who take risks to protest are condemned. And we sanction defence exports to Israel while arresting those who wire cut their way into military bases.

To be allowed to be an agitator requires that our society take a very liberal view of freedom of expression. One judge Murphy admired was the longest serving US Supreme Court judge William O Douglas who sat from 1939-1975.

Douglas, in a famous 1949 case called Terminiello6 said of freedom of speech:

“a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging.” …[freedom of speech], “is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest”.7

Freedom of expression and the right to protest is under threat in Australia. Too many laws impinge on those rights. Time to heed the words of two great judges who understood human rights.

November 2025

Greg Barns SC
Barrister and Author
Republic Chambers

1. Neal v The Queen (1982) 149 CLR 305
2. https://www.filmartmedia.com/portfolio/mr-neal-is-entitled-to-be-an-agitator/
3. The Queen v Neal 10 May 1982 unpublished
4. John Chesterman and George Villaflor, ‘Mr Neal’s Invasion: Behind an Indigenous Rights Case’ (2000) 15 Australian Journal of Law and Society 90
5. Neal, 316-317
6. Terminiello v. City of Chicago, 337 US 1 (1949)
7. Terminiello, 4