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Opening of the legal year in Bendigo

31 January 2017

The past seven months have marked the centenary of the Battle of the Somme, and of huge losses of Australian troops in France.  With this in mind I would like to briefly discuss the short but brilliant life of a young Bendigo man, Murdoch Nish Mackay LL B LLM.

Murdoch was eldest son of George and Mary Mackay whose family had come to Australia in the 1830s. Murdoch’s grandfather Angus was a teacher and a bank clerk who ended up as a digger and a correspondent for the Argus on the Bendigo goldfields., Angus went on to be the first manager of the Bendigo Advertiser, then an MLA for Bendigo and the Minister for Mines and Education in the Victorian Government in the 1870s.

Murdoch Mackay was a true legal talent. He was born in 1891 and was schooled at Gravel Hill primary in Mundy Street and then at St Andrews College and High School in Bendigo before going to Melbourne. He commenced studying at the University of Melbourne at age 16, and was awarded the Supreme Court Prize in 1911 and had an LL B LLM by the time he was 20. The next year he was called to the bar.  His practice was busy, and there was no doubt that his career would be exceptional as he began appearing in the High Court shortly thereafter.  For example, he appeared with Knox K.C. in March 1915 in NSW v Commonwealth a famous constitutional case better known as the Wheat case which dealt with freedom of trade between the states and the separation of powers.[1]

He married Margot and left Australia in May 1915 as a captain. He became a seasoned soldier, serving in Egypt and Gallipoli before proceeding to the Western Front, where he was promoted to Major. The Bendigo Independent proudly reported on this in an article titled ‘Bendigonian’s Rapid Promotion’.[2].

Mackay was killed on the 5th of August 1916 at Pozieres, a village on a ridge within the Somme battlefield. It was fortified by the Germans, and considered an important defensive position, being part of their second defensive trench system. Mackay’s battalion was ordered to secure this position. 

In his ‘Official History of Australia in the War of 1914-1918’,Charles Bean gives a stirring account of Major Mackay’s last heroic acts.[3]  An assault was planned - however not enough men had arrived to form a wave.  Bean records:

These were moments of tense anxiety; but at 9:30 someone shouted that Major Mackay was coming up to the rear of the trench, and this officer and his men were seen approaching.  On reaching the trench, without waiting for consultation, he assumed control and, calling “Come on boys!”, instantly led the troops forward.[4]

The assault, although with deadly results for many Australians, achieved its objective. Bean noted:

But the splendid young leader whose initiative and determination were the direct cause of this success did not live to see it.  Within a few yards of O.G.I, Mackay was shot through the heart.  It is not too much to say that by his conduct during a crisis of the utmost difficulty and peril the whole operation was snatched from imminent risk and complete failure.[5]

On 29 August 1916 the Bendigo Advertiser, published the following poem written by a friend of Mackay:

Comrade, you're gone-the world more sad

It seems, alas, must always be

For having lost what once it had,

The very wealth of having thee.

Dear friend, you've gone, and left alone

There mourns a comrade in distress,

The very birds of spring have flown,

Leaving a life worth so much less.

Comrade, I'll mourn thee not, nor weep,

But strive to live in my small way

The life you led, and treasured keep

Thy face before me day by day.

Dear friend, maybe your spirit near

Will hover o'er the ones you love,

And help this darkening age to cheer

With inspiration from above.

-A Friend[6]

Many judges and barristers, including Chief Justice Madden, expressed their grief at the loss of such a promising young man.[7]

In 2015 I visited the Somme to see where my wife’s great uncle Private Ernest Cravino perished in November 1916. The Somme, unlike much of France, is flat and undistinguished and one wonders how  nearly a million men could have died fighting over such a small and uninspiring patch in what has been described as the battle that most typifies the futile attritional nature of this ghastly war . Ernest was killed at Trones Wood towards the end of the battle. He was born in Ballarat and was raised in an orphanage following the death of his mother in childbirth. He was a twenty-year-old draper when he enlisted in July 1915.

Mackay and Cravino never met and appear to have had very little in common. However that is not the whole picture: they were both young and had their lives ahead of them. They shared a sense of duty and a love of country and empire. Their final tragic commonality is that they are buried within 10 kilometres of each other over 16000 km from the two goldfield cities. Cravino at Les Boeuffs and Mackay at Pozieres.

Although I have only focused on Murdoch Mackay, at least 9 other members of the legal profession from Bendigo served in the Great War, alongside nearly 4000 others from Bendigo and surrounding towns;  a number of whom did not return. In fact, in the Bendigo Independent, immediately opposite the article regarding Mackay’s promotion to which I have referred, a short article recounts how four young men that day alone presented for enlistment.[8]

As many of you may know, Major Mackay was one of four young men to whom a tram car shelter memorial was dedicated after the war, close to this Court. I understand the memorial plaque will be restored later this year.

Which leads to what is now becoming an annual report to the legal fraternity of this city - the state of this building and prospective refurbishment. 

Last year, the Attorney General, accompanied by the local member for Bendigo East and the Minister for Employment, the Honourable Jacinta Allan MLA, inspected the Court and both now have first-hand knowledge of the facilities.

In Infrastructure Victoria’s 30 year report released in December last year- that Bendigo (amongst others areas) is an immediate priority for new or refurbished courts.[9]  Court Services Victoria releases its strategic asset plan on Wednesday and I am confident that this Court will be a priority in that plan. The Mayor and Councillors who are present today have actively supported this process and I thank them for their assistance.

The bottom line, as I understand it, is that it is hoped that a business case will be formulated this year for Government consideration in 2018.  Whilst I appreciate that this process is drawn out, if it results in a significant redevelopment or improvement of court facilities capable of meeting the needs of the citizens of Bendigo in the decades to come, it will be worth it

My thanks to Joanne Boyd of the Supreme Court for her assistance regarding lawyers in the Great War, and the Bendigo Regional Archives centre.

[1]           (1915) 20 CLR 54.
[2]           Bendigo Independent, 16 November 1915, 5.
[3]           C E W Bean, Official History of Australia During the War of 1914-1918: Vol III The AIF in France 1916 (Angus & Robertson Ltd, 3rd ed, 1935) 683-687.
[4]           Ibid 684.
[5]           Ibid 686.
[6]           Bendigo Advertiser, 29 August 1916, 7.
[7]           Bendigo Independent, 23 August 1916, 8.
[8]           Bendigo Independent, 16 November 1915, 5.
[9]           Infrastructure Victoria, Victoria’s 30-Year Infrastructure Strategy (2016) 8.1.2

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