George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Hansard source

by leave—I move:

That the Senate expresses its deep regret at the death, on 29 October 2017, of the Right Honourable Sir Ninian Martin Stephen KG, AK, GCMG, GCVO, KBE, QC, former Governor General of Australia and Justice of the High Court of Australia, places on record its appreciation of his long and meritorious public service, and tenders its profound sympathy to his family in their bereavement.

The pages of history are littered with the deeds of great Australians, of men and women in each succeeding generation and every field of human endeavour, whose achievements have enriched the tapestry of Australia's public life, who have represented the very best of our country to the world. Many great men and women have served the people of Australia with such distinction, yet there would be few whose achievements, in service not only to our nation but to our common humanity, could rival the life of Sir Ninian Stephen. He was Australia's 20th Governor-General and its first Ambassador for the Environment, a Justice of the High Court of Australia and a Judge of the Supreme Court of Victoria, a member of the Privy Council, a soldier, a skilled diplomat and international jurist and, to those who had the pleasure of his acquaintance, a man of immense warmth, intelligence, urbanity and charm.

Sir Ninian Stephen was born on a poultry farm in the village of Nettlebed, in Oxfordshire, England, on 15 June 1923, the first and only child of Frederick Stephen and Barbara Cruickshank. The farm belonged to Ms Nina Mylne, the daughter of the wealthy Queensland grazier and politician Graham Mylne, and heiress to her father's considerable pastoral holdings in New South Wales and western Queensland. Ninian's mother, Barbara, worked as a lady's maid for Ms Mylne, who would become the dominating figure in Ninian's early life. Indeed, it was after Nina, not after the eighth century Pictish saint, that Ninian was named.

Three weeks after his birth, Ninian's father left the family to board the Ausonia bound for Montreal, never to return. His father's fate was kept from Ninian for most of his life; until 2003 he believed that Frederick Stephen had died from the after-effects of mustard gas poisoning from the Great War. From that moment Nina Mylne took charge both of the family's finances and of young Ninian's education. The trio moved across Europe. In Edinburgh Ninian received his early schooling at George Watson's College and the Edinburgh Academy, then in London at St Paul's, before he moved once more to Chillon College, an international school for boys in Montreux, in Switzerland.

Regrettably, Ms Mylne was not entirely unsympathetic to the cause of national socialism in Europe. She took an exceptionally dim view of Communists and Jews and attempted to inculcate in young Ninian a bien pensant's appreciation of the achievements of Hitler's Germany. In September 1938 Nina and young Ninian travelled to Nuremberg to see the Nazi party's rally and celebration of the Anschluss. She had spared no expense to secure the best seats in the stadium directly above the Fuhrer's motorcade, from which young Ninian was ideally placed to take several photographs of the imposing spectacle. However, as his biographer, Philip Ayres, concludes:

… for all its impressiveness, Nina Mylne's gesture fell somewhat short of purpose. The sort of education she had provided for Ninian was the least likely to produce anyone attracted by regimentation and propaganda … he had acquired an interest in the complexities of history that was incompatible with political intensity.

Within three years of taking those photographs, Ayres continues, Ninian Stephen:

… would voluntarily enlist in an army fighting to defend Australia against the disastrous consequences of extreme ideologies.

And, in an age and moral universe even more distant from the stadium at Nuremberg, as a founding judge on the International Criminal Tribunal for the former Yugoslavia, Sir Ninian Stephen would play a seminal role in establishing the first war crimes tribunal since those which sat after the Second World War at Nuremberg and Tokyo.

War broke out in September 1939. Though they were safe, for now, in neutral Switzerland, by December the Australian Ms Mylne had secured for the trio passage to Australia. They arrived in Melbourne in February 1940. Ninian was enrolled at Scotch College, where he completed his final year of school, gaining honours in English and French. On the advice of a school friend and with little burning ambition of his own, Ninian commenced an articled clerkship at the firm Arthur Robinson & Co in 1941. It was a chance introduction to a career that would define Ninian Stephen's life. Soon after he enrolled in a Bachelor of Laws at the University of Melbourne; however, his studies were interrupted by the surprise attack on Pearl Harbor and the beginning of the Pacific War.

Along with many of his contemporaries, Sir Ninian joined the Australian Imperial Force and saw action in Borneo and New Guinea during the famed jungle campaigns of the war. He took part in a number of dangerous reconnaissance expeditions as a member of the 43rd Landing Craft Company, which, along with the then Corporal Ninian Stephen, counted among its ranks one Captain Frank Packer, future patriarch of the Packer media empire and chairman of Australian Consolidated Press, and Captain Nigel Bowen, a future Commonwealth Attorney-General and the first Chief Justice of the Federal Court of Australia. Ninian Stephen was commissioned as lieutenant in April 1945 and discharged the following February.

Following his return to civilian life, Sir Ninian resumed his legal education and graduated from the University of Melbourne in 1949. It was the same year in which he would propose to Valery Mary Sinclair, an art student at the same university. After a five-month engagement, they were married on 4 June 1949 at St Mark's Anglican Church in Camberwell. Recently married, admitted to practice and with the couple's first child on the way, Ninian Stephen briefly returned to Arthur Robinson & Co to work as a solicitor. There were early signs that fate did not have in store a solicitor's career for him. He later recalled that his duties seemed very much to be a continuation of the tasks he had performed as an articled clerk, such as 'concealing from the firm's partners warm, indeed red-hot, letters from the firm's Brisbane agents, complaining about my delays in resealing the probates they sent us'.

In January 1952, Ninian Stephen went to the bar. After spending six months reading with Douglas Little, later the Hon. Sir Douglas Little of the Supreme Court of Victoria, he took chambers at Saxon House in Little Collins Street—a room, as Sir Ninian would later describe it, 'just large enough for three desks if you didn't mind having to crawl under your desk to get to your seat, back hard up against the wall, when you heard a solicitor-like footstep in the corridor outside'. However, he was soon offered a place in the somewhat more salubrious surrounds of Selborne Chambers—in Sir Robert Menzies's former room, no less—overlooking Little Collins Street.

Over the next two decades, Ninian Stephen built up a successful practice specialising in equity, company law and constitutional law. He took silk in November 1966 and only four years later was appointed to the Supreme Court of Victoria. At 47 years of age, most, if not all, of the achievements for which he would gain international recognition lay ahead, but he would always reflect with singular fondness upon his time at the bar. He would reminisce, as he did in his address on the occasion of the Victorian bar dinner in May 1989, with sentiments familiar to every lapsed barrister that he missed:

… that intoxicating mixture of tension and excitement on the eve of each case, something that never wholly leaves you, however many cases you have fought; then that comfortable satisfaction when you have written the concluding part of an opinion; and the even more comfortable satisfaction when you write up your fee book at the end of the day.

I can relate to that reminiscence.

Less than two years after his appointment to the Supreme Court, Ninian Stephen received a call from his old friend the then Commonwealth Attorney-General Sir Ivor Greenwood. The two had shared chambers in the room in Saxon House during Sir Ninian's earliest days at the bar. Senator Greenwood was now calling to offer Ninian the position of Justice of the High Court of Australia, to replace the retiring Sir Victor Windeyer. So it was that, at 48 years of age, Sir Ninian Stephen took his seat in the court, under the chief justiceshipof the great Sir Garfield Barwick.

He was the youngest of the seven justices. In a court of generally high intellectual calibre, Sir Ninian was respected by his peers for his clarity of thought, diligence, easy manner and peerless charm. Sir Anthony Mason, with whom Sir Ninian served on the bench, described his voice as, by common account, 'the most mellifluous voice in the Australian legal world'. I remember that voice. I met Sir Ninian on several occasions in the early 1980s. It was deep, rich, plangent and urbane. Of his style, Sir Anthony writes that his judgements were:

… easy to read, a world apart from the dense, grinding judicial style which is characteristic of typical High Court judgments.

And:

A central element in the Stephen style was the air of disconnected impartiality and objectivity; that of a Proustian observer seemingly disconnected from the events which he describes.

As his first High Court associate, Ross Robson—later the Honourable Justice Ross Robson of the Supreme Court of Victoria—would observe:

It appeared as if Sir Ninian's life was a joy, not a trouble. He was not burdened by angst, worry, jealousy, ambition, envy or any other vices.

Professor Hilary Charlesworth, another of Sir Ninian's former associates, writes of his judicial philosophy that, 'While he was personally a liberal and progressive thinker, these views were not consistently reflected in his judgements, which revealed a cautious attitude to judicial review and a particular social or political agenda.'

He was not obviously a supporter of states' rights nor of the federal government. On his retirement he remarked that he had no burning interest in the outcome of cases, such as might have led other justices to seek in different ways to persuade the court to their point of view. He rather saw his duty as to decide each case as he thought appropriate and let the result of the case take care of itself.

In December 1981, Prime Minister Malcolm Fraser told Sir Ninian that Sir Zelman Cowen would be resigning as Governor-General in a few months time and that the Prime Minister wished to appoint Sir Ninian to his place. Although humbly startled at this invitation, he accepted and was sworn in on 29 July 1982. After Sir Isaac Isaacs, Sir Ninian Stephen is the second of three High Court justices to have served as Governor-General to date.

With the events of 1975 still fresh in the minds of many Australians, it is significant that Sir Ninian Stephen's appointment, like that of his predecessor, Sir Zelman Cowen, was lauded across partisan divides, and he more than maintained the confidence and respect of both coalition and Labor governments. Sir Ninian remains the only Governor-General to have proved two double-dissolution elections during his term of office—in 1983, on the advice of Prime Minister Fraser, and in 1987, on the advice of Prime Minister Hawke. The first of these attracted particular controversy.

On the morning of 3 February 1983, Sir Ninian was preparing to welcome the retiring Polish ambassador to Government House when at 12:15 he received an unexpected and unannounced guest in the form of a very hurried Malcolm Fraser. The Prime Minister had just called a press conference for 1 pm that afternoon at which he hoped to announce a snap double-dissolution election and thus forestall the impending Labor leadership challenge to Bill Hayden by his putative rival, Bob Hawke. The Polish ambassador's arrival was imminent and, with close to 40 pages of the Prime Minister's reasons relating to 13 trigger bills to consider, Sir Ninian told Mr Fraser to leave and that his request would be considered after lunch so that he could properly inform himself of the matter.

It was not until 4.55 pm, and after further inquiries of the Prime Minister, that Sir Ninian advised Mr Fraser that he had agreed to his request for a double dissolution. But by then Bob Hawke had already replaced Bill Hayden as Labor leader and would go on to inflict upon Malcolm Fraser a landslide defeat. This was a turbulent episode in Australian politics, but one from which Sir Ninian Stephen would emerge unruffled and wholly untarred by partisan brush.

As Governor-General, Sir Ninian Stephen continued the work of his predecessor, Sir Zelman Cowen, in bringing what was described, borrowing Nehru's phrase, as a touch of healing to a nation divided by the turbulent events of 1975. To the achievement of this task, like his predecessor, Sir Ninian attached great importance to the many public speeches he gave around Australia. He was conscious of the challenge faced by governors-general in the delivery of vice-regal speeches—what Professor Geoffrey Lindell describes as the importance of saying something interesting without being controversial. But it was a task which Sir Ninian, like Sir Zelman before him, saw as an important part of the Governor-General's role—to represent or interpret the nation to itself—and one to which he would deftly apply his immense intellectual skills and energy.

On government advice, Sir Ninian was also instrumental in extending the practice of governors-general playing a significant role in representing Australia to the wider world. No doubt drawing upon his international upbringing and his natural diplomacy and charm, and building on the overseas duties performed by some of his predecessors, Sir Ninian Stephen was the first Governor-General to regularly represent the nation in an official capacity abroad, meeting with foreign leaders as diverse as Margaret Thatcher, Francois Mitterand and Lee Kwan Yew and, in the words of his biographer, 'taking his office beyond the merely ceremonial and into the world of diplomacy'. In 1984, for example, he represented Australia at the funeral of Indira Gandhi, following her assassination. He also had the somewhat more dubious honour of hosting Nikolae and Elena Ceausescu at Yarralumla. Standing alongside Bob Hawke, awaiting the arrival of Romania's first family on the tarmac of Canberra's Fairbairn RAAF base, conversation turned to the Carpathian leader's unusual habit of installing CCTV cameras in the hotel rooms of his ministers. 'Why don't you try that, Bob?' Sir Ninian asked, to which Hawke replied, 'There wouldn't be enough film.'

Sir Ninian's contribution to Australia's diplomacy went hand in hand with his significant symbolic contributions within Australia. In October 1985, Sir Ninian flew to Uluru to hand over the title deeds of the sacred land to its traditional owners. As Philip Ayres observes:

This was the most symbolically significant transfer of ownership … during Stephen's tenure as Governor-General, and his speech was an effort to balance specifically Aboriginal rights, morally based in natural law in the light of historical catastrophe and dispossession, with the concept of national unity.

From these and many other achievements, it is safe to conclude that the consolidation over recent decades of the Governor-Generalship of Australia as a vibrant and admired form of unifying national leadership owes much to Sir Ninian Stephen's 6½ years in the role.

Sir Ninian Stephen's term as Governor-General concluded on 16 February 1989. At a farewell dinner speech given by Bob Hawke two days earlier, the Prime Minister thanked Sir Ninian for bringing to his tenure a wisdom and self-confidence that enhanced the role, noting that:

Where many people had imagined the Governor-Generalship could involve only the ritual performance of empty ceremony and where some still saw it as the avenue of intrusion into the affairs of elected Governments Sir Ninian Stephen showed that the post could be very different indeed. You, sir, showed the Governor-Generalship was a post of real substance, and you imbued it and refreshed it with an articulate, accessible, distinguished and may I say a very Australian spirit.

Having reached the apex of Australian public life, Sir Ninian Stephen was still far from retirement. On 21 July 1989, he was appointed by the Hawke government as Australia's first Ambassador for the Environment. This new role saw Sir Ninian represent Australia in important multilateral fora, taking part in environmental negotiations, then in relative infancy, as well as undertaking a public diplomacy role within Australia.

In 1992, the governments of the United Kingdom and the Republic of Ireland chose Sir Ninian Stephen to facilitate peace talks on Northern Ireland between the Protestants and the Catholics of Ulster. Although Sir Ninian did not single-handedly achieve the impossible task of bringing to an end the long Irish troubles, his scrupulous and fair-handed work was reasonably judged a success. As the Hon. Justice Michael Kirby recalled at a dinner at Ormond College to mark Sir Ninian's 80th birthday:

When I visited my family in Ulster, outside the little town of Cullybackey, they told me that they had every confidence in "Mr Stephen". After all, they believed that he had been baptised a Presbyterian and came originally from Scotland. So for Ulster Unionists, who thought the Reverend Paisley a wimp and far too compromising, the image of the tall gracious Australian was reassuring.

No less significantly, in 1993 Sir Ninian was elected to sit as one of the first 11 judges of the International Criminal Tribunal for the former Yugoslavia. He was instrumental in devising the procedural and evidentiary rules necessary to turn the UN Security Council resolution into a fully functioning tribunal. As his tribunal colleague Professor Antonio Cassese recalls from his earliest meetings with Sir Ninian Stephen:

His moral authority, his balance, combined with friendliness and wit, naturally made him the fellow judge to whom I would turn any time I had a serious problem requiring much wisdom and experience for its solution … When Sir Ninian Stephen decided not to seek a second term and left the Tribunal in 1997, all judges felt they would lose an irreplaceable colleague. This is indeed what happened.

As to Sir Ninian's conduct at these novel proceedings, as the Hon. Dyson Heydon has observed, 'he frequently stressed something which it is easy for war crimes tribunals to forget—the need to confer procedural fairness on the generally despised defendants'. Sir Ninian was always an upholder of the rule of law.

Aside from his work mediating the Irish troubles and establishing the first war crimes tribunal since those of World War II, Sir Ninian contributed to several other major international developments of the 1990s. He advised on the democratic transition in South Africa, helped to mediate the worsening political crisis in Bangladesh, led two UN missions to Burma to investigate forced labour and chaired the United Nations Group of Experts for Cambodia in 1998 and 1999. Although these difficult ventures inevitably met varying degrees of success, the one consistent theme throughout his extraordinary career is the universally high regard in which he was held by those who had the pleasure of working with him. Several qualities shine out from these many accounts: his first-rate intellect and world-renowned charm, his wisdom and fairness, and, above all, his human warmth. It is perhaps both remarkable and unsurprising that over the course of his life Sir Ninian Stephen was honoured by no fewer than five knighthoods. Most notably, Her Majesty the Queen appointed Sir Ninian a Knight of the Garter in 1994, making him the most recent Australian to receive this personal gift of the sovereign.

Sir Ninian Stephen will be remembered for his many achievements as a jurist and a diplomat and for being a man of enormous intelligence and immense charm—the paradigm of the modern statesman. He was a truly eminent Australian, but he was also a dedicated family man, supported in all that he did by Lady Stephen. Sir Ninian and Lady Stephen have aptly been described as one of the great enduring double acts in Australian public life, and it is to Lady Stephen and their children, Mary, Ann, Sarah, Jane and Elizabeth, and to their 12 grandchildren and five great-grandchildren that I tender my condolences on behalf of the government and of a grateful nation.