Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Hansard source

I rise on behalf of the opposition to acknowledge the passing of the Rt Hon. Sir Ninian Stephen KG, AK, GCMG, GCVO, KBE, QC on 29 October 2017, and at the outset I convey the opposition's condolences to Lady Stephen and to Sir Ninian's family and friends. Sir Ninian Stephen was a pre-eminent Australian. The honours and awards conveyed upon him are testament to this—knighted in five separate orders including, as the Leader of the Government has said, the Order of the Garter. Yet these are surpassed by the inestimable value of the public service he provided over eight decades to the military, to the law, on the High Court, as Governor-General, as Ambassador for the Environment and as an international jurist and peacemaker. As former High Court judge Michael Kirby said at Sir Ninian's 80th birthday dinner, serving Australia was not enough for Ninian Stephen—he went beyond and served a wider world.

Sir Ninian Stephen was born in England, near Oxford, in 1923 and after a childhood that included living in continental Europe and being educated in Edinburgh, London and Switzerland he arrived in Australia as a 16-year-old in 1940, completing his education at Scotch College, Melbourne, before moving to the University of Melbourne. He was effectively raised, as his biographer Philip Ayres put it, by two caring mothers—his own mother, Barbara, and Miss Nina Mylne. His father left for Canada three weeks after the boy's birth and was not to return. It was the love and provision of these two women, particularly Miss Mylne, who had an inheritance of shares in large pastoral holdings in Australia, that saw him receive a varied education across multiple countries driven partly by the preferences of his carers and partly by necessity as hostilities drew closer on the continent in the late 1930s. The growing threat of war prompted emigration to Australia, Miss Mylne's home country, and they sailed from Genoa in December 1939 amongst some 300 passengers, including many Hungarian Jews getting out of Europe while they still could. Although he was already something of an internationalist given his upbringing, the sea journey provided an even greater window to the world, with stops in Suez, Colombo and Fremantle before docking in Melbourne in February 1940.

As was the case for many young men in Australia at that time, Sir Ninian Stephen's education was interrupted by the onset of war. He enlisted as a private in the Melbourne University Regiment at the end of his first year, in December 1941. En route by rail to a training camp in regional Victoria, they heard that the Japanese had bombed Pearl Harbor. Sir Ninian would go on to serve in the Australian Imperial Force, spending 1½ years in Geraldton, where his tent mates included the artist John Brack, before finding himself sent back to New South Wales. He retrained for infantry service and then saw action in Lae, Papua New Guinea. After being commissioned as an officer in 1945, he was posted to serve in New Britain, Bougainville and Borneo before being discharged in February 1946. As we reflect at this time on the extent of his service and the duration of his life, we should remember that Sir Ninian was once an ordinary soldier, serving alongside working-class men during one of the nation's and the world's darkest hours.

The year 1949 brought two significant developments for Sir Ninian Stephen. He married Lady Valerie in July of that year. They would go on to have five daughters. Then in December he graduated with his degree in law from the University of Melbourne. As the Attorney has outlined, Sir Ninian fell into law somewhat by accident, gaining a job as an office boy at the firm of solicitors known as Arthur Robinson and Co. in December 1940 whilst he decided what to do. This experience was sufficient to boost his confidence, and he was accepted to read law, beginning in February 1941. After the interruption of the war, to which I have referred, he resumed his articles and study in 1946. Significant teachers of influence in the law school at the time included Professor Wolfgang Friedmann, whose principal area of interest was international law, and Associate Professor Geoffrey Sawer, who would be a leading contributor to the study of Australian constitutional law and federalism over the ensuing decades. However, the teaching of law at the University of Melbourne at this time was, according to Sir Ninian, hardly designed to capture students' imaginations. He would go on to say that the only important feature of his time at university was 'meeting and marrying Val'.

Nevertheless, a career in the law followed. I note this came only after rejection for a position in the diplomatic corps. Beginning as a solicitor, he was called to the bar in January 1952. He shared his tiny chambers with two gentlemen who went on to significant service—Ted Woodward, who became Director-General of ASIO, a federal court judge and a chief proponent of Aboriginal land rights, and Ivor Greenwood, who became a senator and Attorney-General, eventually inviting Sir Ninian to join the High Court. It was pretty good company! But it ought to be remembered that Sir Ninian did not come to the bar with the qualifications of many others and was not deeply embedded in the Melbourne establishment, nor necessarily at that point highly credentialled in the law. However, within a decade, he established a reputation as a barrister that supplanted the need for such credentials by authoring opinions which were described as 'tightly written and clearly organised in their arguments' across many areas of law. He took silk in 1966 at the age of 43. He was appointed to the bench of the Supreme Court of Victoria in June 1970; however, that was a short stay because in March 1972 he became a justice of the High Court of Australia.

Some have written that Sir Ninian was regarded as being a judge in the tradition of Justices Dixon, Fullagar and Kitto. He received not a little encouragement to continue in this tradition upon his ascension, including from Sir Owen Dixon himself months before his death. This was a High Court before the constitutional amendment which fixed the age of retirement at 70. It was a court in which Justice McTiernan was still serving at the age of 80, having been appointed under Sir Isaac Isaacs, who had sat with the first Chief Justice, Sir Samuel Griffiths. In the 10 years Sir Ninian served on the court, it underwent substantial generational change. Sir Ninian brought a conscientious work ethic to his role at the court, but he did not allow himself to be consumed by his burdens. His first associate, Ross Robson, who has been quoted already by the Leader of the Government in the Senate, stated that Sir Ninian was 'not burdened by angst, worry, jealousy, ambition, envy or any other vices'. Perhaps that is advice or an example that should be followed in this parliament more.

During the time Sir Ninian was on the full court, there was great constitutional upheaval, not the least as a result of the events of Remembrance Day 1975 but also as a consequence of the new legislative broom that swept through the nation in the form of the Whitlam government's dramatic new legislative approach compared to the malaise and stupor of the previous two decades. These were interesting times on the court. Towards the end of his tenure, Sir Ninian described the difficulties that he saw could emerge from judges, and the High Court in particular, paying greater attention to parliamentary debates and committee reports as a means of interpreting legislation than to the legislation itself. He said, 'My own recent venture into Hansard debates left me more dubious than before about such excursions.' On his departure from the High Court, Sir Ninian expressed his belief that he had fulfilled the role of adjudicator rather than legislator.

In 1981, Mr Fraser recommended to the Queen that Sir Ninian Stephen replace Sir Zelman Cowen as Governor-General, and he took up the role in July 1982. A former jurist from Australia's highest court may seem like a natural fit for the role of Governor-General—particularly so given that, in addition to Sir Ninian, his successor in the High Court, Sir William Deane, would later be recommended for that role by the Keating government. Former judges of other courts have held the office before and since, but it is worth noting that the only time prior to Sir Ninian's appointment that a former High Court justice had occupied the position was Sir Isaac Isaacs in 1931. After the controversy that had embroiled Sir John Kerr, Sir Zelman Cowen had restored confidence in the role of Governor-General, and there was a great national interest for this to continue. Sir Ninian had recommended himself for the role not just through his record as a balanced and apolitical judge but also by his engaging personality and skill as a speech maker.

The constitutional turmoil of the previous decade was still very much front of mind for the country, and many of the questions asked of him at the informal press conference at his home after the announcement of his appointment addressed this matter. Asked for his views on the reserve powers, Sir Ninian said, 'These were a necessary fallback,' adding, 'For instance, if the Prime Minister has lost the confidence of the House and could no longer command a majority, then it is extremely doubtful that a Governor-General would be obliged to accept his advice.' As one would anticipate, he had a strong command of the constitutional responsibilities of a Governor-General but also recognised that the role did not require him to entirely surrender his independent judgement.

Senator Brandis has also referenced the events of February 1983, when Mr Fraser sought a simultaneous dissolution of the House and the Senate—in part, in an attempt to forestall the replacement of Mr Hayden as leader of the opposition by Mr Hawke. As Senator Brandis outlined, Sir Ninian insisted on being properly informed of the reasons for the simultaneous dissolution and acted to satisfy himself of the constitutionally correct course—of course, the appropriate action to take. But, in the process, Mr Fraser, so confident of the outcome of his request that he had scheduled the press conference for 45 minutes after his appointment at Government House, unannounced, found himself facing Mr Hawke, not Mr Hayden, and the rest is history. Of course, it was Bill Hayden who subsequently replaced Sir Ninian at Yarralumla in 1989.

The duties of a Governor-General are many and varied in addition to the constitutional role, and, certainly, many speeches were made by Sir Ninian Stephen. He came to the role at a time when it became more acceptable for the head of state to represent Australia overseas, and he did so. But perhaps one of the most significant acts of his term occurred in the centre of our country, because, in October 1985, Sir Ninian handed over the title deeds to Uluru to its traditional owners, who then leased it back to the nation as a national park. In this speech, he recognised that the handover symbolised the need:

… to balance specifically Aboriginal rights, morally based in natural law in the light of historical catastrophe and dispossession, with the concept of national unity.

Whilst there is no consistent precedent for the term of office of a Governor-General, it is a measure of the regard in which he was held that his tenure was extended beyond five years, to include the whole of the bicentennial year and into 1989. His biographer, Philip Ayres, stated that Prime Minister Hawke had the highest regard for him, his integrity, his intelligence and his commitment to this country. Sir Ninian saw his primary role as representing the Australian nation to the Australian people.

The next stage in Sir Ninian's service was, of course, as Ambassador for the Environment, a post to which he was appointed, as Australia's first ambassador, by Bob Hawke. Sir Ninian's interest in the environment had manifested itself in several different ways throughout his life. He was an occasional bushwalker, he had maintained a holiday residence on the River Murray and whilst on the High Court he had travelled the wilderness of Tasmania near Lake Pedder with Chief Justice Sir Garfield Barwick, then President of the Australian Conservation Foundation—that I had not remembered, Mr President—and a young doctor from Launceston, Bob Brown. I note that, as early as 1990, Sir Ninian was articulating the economic and environmental dangers that would stem from increasing average global temperatures. Reflecting on changes to the productivity of land and rising sea levels, he stated, 'Climate change may mean that in relatively few years our whole infrastructure becomes mislocated'.

I turn now to his work as an international jurist and peacemaker. The work Sir Ninian Stephen undertook in the 1990s and early 2000s is perhaps the most underappreciated of the phases of his career, but in many ways it is the most significant. He became a key peace broker in Northern Ireland in 1992, hardly an easy task given the sectarian divide which stretched back centuries. It's little wonder a headline in The Sunday Age asked the question 'Belfast bound, so why is this man still smiling?' Six years before the Good Friday Agreement, the going was tough. Sir Ninian attempted to mediate a dialogue between parties who at that time were not ready to come to the table with sufficient compromises or a willingness to accept others in order to bridge the gulf between them. In 2012, Lord Mayhew, who was Secretary of State for Northern Ireland at the time of the talks, stated that he had:

… absolutely no doubt that Sir Ninian's contribution prepared the ground very significantly for the developments that subsequently culminated in what came to be known as the Good Friday Agreement.

In 1993, the UN General Assembly elected Sir Ninian to the International Criminal Tribunal for the former Yugoslavia for a four-year term. The Attorney has spoken in more detail about that contribution. Already serving on the International Court of Justice—in which he was involved in a case between Portugal and Australia contesting oil exploration and exploitation rights in the Timor Gap, an issue that only now seems to be coming to an acceptable conclusion—and the Permanent Court of Arbitration, Sir Ninian's nomination was announced by the then Minister for Foreign Affairs, Gareth Evans, and Attorney-General, Michael Lavarch. His duties later extended to the tribunal for Rwanda.

Following the completion of his term at the international tribunals—he had elected to retire rather than seek reappointment—Sir Ninian found himself at work again, at the request of UN Secretary-General Kofi Annan, who appointed him to head a group of experts inquiring into the feasibility and practicalities of a tribunal to try former leaders of the Khmer Rouge in Cambodia. It was a difficult, political assignment but, much like his mission in Northern Ireland, Sir Ninian's groundbreaking endeavours would later bear fruit. Three surviving Khmer Rouge leaders finally went on trial in November 2011. International assignments such as this continued into the 2000s, including as head of an International Labour Organization team to investigate whether or not assurances to eliminate forced labour were being fulfilled in what is now known as Myanmar.

The first whole-of-life biography of Sir Ninian Stephen, by Philip Ayres, is titled Fortunate Voyager. It is easy to see how Sir Ninian, a warm and caring man described by Ayres as 'charming and witty in conversation, and non-judgemental and optimistic in outlook', was indeed a fortunate voyager. Yet in his journeys along multiple paths throughout his life—all 94 years of it—one can appreciate how fortunate so many have been to benefit from his dedicated and selfless service. His work was diverse, his contributions significant, his commitment to service manifest. Our country—indeed, the world—owes Sir Ninian Stephen a great debt. We mourn his passing and again extend our deepest sympathies to his family and friends at this time.