Scott Ryan (President, Special Minister of State) Share this | Link to this | Hansard source

I inform the Senate of the death, on 29 October this year, of former Governor-General the Rt Hon. Sir Ninian Martin Stephen KG, AK, GCMG, GCVO, KBE, QC, Governor-General of the Commonwealth of Australia from 1982 to 1989.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to 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.

Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to 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.

Richard Di Natale (Victoria, Australian Greens) Share this | Link to this | Hansard source

On behalf of all of my parliamentary colleagues in the Greens—and, indeed, the entire Australian Greens family—I'd like to offer our deepest condolence to the family of Sir Ninian Stephen, including to Lady Stephen, their daughters and their respective families. I won't spend too long, as most of the contribution that I wanted to make has been covered by both the Attorney-General and Senator Wong. We've heard of Sir Ninian's incredibly distinguished legal career with the Supreme Court of Victoria before moving to the High Court of Australia, where he brought a moderating influence to the bench. He was often a voice of reason. Among many things Sir Ninian will be remembered for is providing the deciding opinion in the case of Koowarta v Bjelke-Petersen, effectively to uphold the legitimacy of the Commonwealth government to make the Racial Discrimination Act and to give effect within Australia to the United Nations International Convention on the Elimination of All Forms of Racial Discrimination. The effect of that decision was that the Wik traditional owners of the Aurukun region of the Cape York Peninsula were able to purchase land, a right that one might think today is unquestionable, but it wasn't; it was a hard-fought right, and Sir Ninian played a pivotal role in that outcome.

He was held with regard while Justice of the High Court. His calm and measured style well explains his appointment to the role of Governor-General, where he contributed to the restoration of trust and confidence in that office following the events of 1975. Sir Ninian went on to become Australia's first ambassador for the environment and in that capacity he worked to ban mining in Antarctica. He headed up peace talks in Northern Ireland. He was a judge for the international criminal tribunal investigating war crimes in the former Yugoslavia, and he helped draft a constitution for Afghanistan. Sir Ninian was a statesman, he was a humanitarian and he was a devoted family man. On behalf of the Australian Greens, we would like to thank and honour him for his service.

Nigel Scullion (NT, Country Liberal Party, Minister for Indigenous Affairs) Share this | Link to this | Hansard source

I rise on behalf of the Nationals to pass on our condolences to the family of Sir Ninian Stephen and to celebrate his contribution to the nation. Much has already been contributed in this place to his remarkable career. Sir Ninian was a man of humility, intellect, generosity and courtesy, and a man with a sense of a lifelong duty and warmth of character. He is most notably known for his role as Australia's 20th Governor-General serving between 1982 and 1989, but his life is full of achievements that deserve reflection in this place.

Born on a poultry farm in Nettlebed near Oxford in the United Kingdom on 15 June 1923, he was the only child of Frederick and Barbara Stephen. Sir Ninian's father passed away when he was only six months of age, so he was raised in the loving care of his mother, who worked for an expatriate daughter to a wealthy Queenslander, Miss Beatrice Mylne. Miss Beatrice Mylne was a strong-minded woman with some political views that I'm sure many people in this place would take some issue with, but she did make a significant contribution to the education and early years of Sir Ninian's life. Miss Beatrice Mylne and his mother insured Sir Ninian received a good education, and it was on this solid foundation started in the United Kingdom and continued here in Australia that set Sir Ninian on a life path of humble achievement. He spent time abroad in Europe, and because of this Sir Ninian became fluent in German as well as speaking French impeccably—a skill he would use in later life, including as Governor-General during a conference with French President Mitterrand.

At the age of 16, Sir Ninian moved to Australia with his mother, and he spent a year at Scotch College in Melbourne. In 1941, he commenced the study of law at the University of Melbourne whilst working as an article clerk with Allen Arthur Robinson solicitors in Melbourne. But Sir Ninian's time as a university student was short lived, as he stood like many men of the time in active service of our country in World War II. From 1941 to 1946—a significant time both in history and in a young man's life—Sir Ninian served with the Australian military forces in the Pacific, specifically in Borneo and New Guinea, and he made his way up to the rank of lieutenant before being discharged. Upon return to Melbourne, he resumed studies and completed a law degree and a legal career followed. Others have reflected upon this career that lead to his appointment as Justice of the High Court in 1972.

Prior to all this, however, Sir Ninian met and married his lovely wife, Valerie Mary, and together they had—what may have been seen certainly from him as his five proudest achievements, his daughters—Mary, Ann, Sarah, Jane and Elizabeth. Mrs Stephen was described by The Canberra Times in 1982 as the very model of a Governor-General's wife, but we know she was an esteemed lady in her own right involved in many of the community activities supporting other women and children, as well as successfully raising five career-orientated and successful daughters. Prime Minister Malcolm Fraser chose Sir Ninian Stephen as an admiral successor to Zelman Cowen, Australia's 19th Governor-General. Sir Ninian Stephen's posting was said to be years in the making, well deserved and widely welcomed. In fact, Gough Whitlam congratulated the then Prime Minister, Malcolm Fraser, for a Governor-General of Sir Ninian Stephen's calibre.

Governor-General was a role that Sir Ninian was humbled by, stating in his official statement to the posting: 'This is a very great honour that our country has done us.' He articulated his thoughts on the role as representing not simply the Queen in Australia but 'the Australian nation to the people of Australia'. He is remembered as a highly successful Governor-General, including for his contribution to Australia's foreign affairs. Sir Ninian Stephen's contribution in this area continued in his future career, including in his role in peace negotiations in Northern Ireland. He would acknowledge that his contribution might not have brought immediate peace to Northern Ireland; however, many have reflected that his patient efforts helped bring about the Good Friday agreement in 1998.

I think we could all learn something from his approach to these and other difficult discussions that he was involved in. His technique was to encourage those he was working with to state their positions and then allow a solution to be brokered through that discussion rather than imposing himself and his solutions onto others. It is a tribute to his humility that, when asked what he thought of the role of Governor-General and why he was chosen, he thought it best that his actions do the talking and responded with:

I don't know. That calls for an immodest answer. It's much better that others should think up the reasons.

The reasons are certainly renowned now. Since his passing on 29 October 2017, tributes have flooded in for Sir Ninian and the man that he was. High Court Judge Michael Kirby, at Sir Ninian's 80th birthday, said:

Serving Australia was not enough for Ninian Stephen. He went beyond and served a wider world.

He was a great statesman, a great mind and an even greater man. Vale Sir Ninian Stephen.

Question agreed to, honourable senators standing in their places.