Ceremonial Sitting in Memory of The Right Honourable Sir Ninian Stephen Kg Ak GCMG GCVO KBE Privy Councillor QC

[2017] HCATrans 246

[2017] HCATrans 246

H I G H   C O U R T   O F   A U S T R A L I A

CEREMONIAL SITTING

IN MEMORY OF

THE RIGHT HONOURABLE SIR NINIAN STEPHEN
KG AK GCMG GCVO KBE PRIVY COUNCILLOR QC

AT

CANBERRA

ON

TUESDAY, 5 DECEMBER 2017, AT 9.30 AM

KIEFEL CJ:   This ceremonial sitting is held to mark the death, on 29 October 2017, of The Right Honourable Sir Ninian Stephen, a former Justice of this Court and Governor‑General of Australia, and to pay tribute to him.

Sir Ninian was a Justice of this Court from 2 March 1972 until 11 May 1982.  Two former Chief Justices of the Court, Sir Anthony Mason and Sir Gerard Brennan, served as Justices with Sir Ninian.  They are unable to be with us today, and wish that their regret at not being able to attend be recorded.

Present at this morning’s proceedings are Ms Mary Stephen, the eldest daughter of Sir Ninian and Lady Stephen, Mr Harry Hume, Ms Stephen’s grandson, Mr Jack Maxwell, Ms Stephen’s nephew, the Honourable Helen Murrell, Chief Justice of the Australian Capital Territory, the Solicitor‑General for the Commonwealth, the Solicitors‑General for New South Wales, Queensland, Tasmania, Western Australia and Victoria, the President of the Law Council of Australia and a representative of the President of the Australian Bar Association.

Sir Ninian Stephen was born in Nettlebed, England on 15 June 1923.  His early childhood was spent in England, Europe and Scotland with his mother, Barbara Stephen, and Ms Nina Mylne, an Australian‑born woman to whom his mother was a companion.  He was educated in Scotland, England and Switzerland.  Following the outbreak of World War II, the three travelled to Australia in 1940 and settled in Melbourne where Sir Ninian attended Scotch College.

In 1941, Sir Ninian enrolled to study law at the University of Melbourne and commenced articles at Arthur Robinson and Co.  His studies were interrupted by his service in the Australian Military Forces.  He was placed in the 10th Field Regiment of the Royal Australian Artillery, most of which was later transferred to the Australian Imperial Force and subsequently merged into the 18th Infantry Training Battalion in 1943.  Sir Ninian served in the 43rd Water Transport Company and 41st Landing Craft Company in Papua New Guinea and in Borneo in 1944 and 1945 and was discharged in 1946.  He was awarded the 1939 ‑ 1945 Star, the Pacific Star, the War Medal and the Australian Service Medal.

Following his discharge, Sir Ninian resumed his legal studies whilst working as an articled clerk at his old firm.  Sir Ninian graduated in law in 1949.  It is perhaps unsurprising, given his later career, that his highest academic achievement was in the subject of public international law.  He worked as a solicitor at the firm following his graduation.

In 1949, Sir Ninian married Valery Sinclair.  He had been introduced to his future wife in 1946 by a friend with whom Sir Ninian had served in the war.  This was to be the beginning of an enduring partnership, much of which was spent in public life. 

Sir Ninian was admitted to the Bar in Victoria in early 1952.  He later shared chambers with Edward Woodward (later Sir Edward Woodward) and Ivor Greenwood, who served as Commonwealth Attorney‑General between 1971 and 1972. 

Sir Ninian soon developed a reputation as an outstanding junior counsel.  He was appointed Queen’s Counsel in 1966.  He appeared as counsel in over 30 reported High Court cases. 

Sir Ninian was appointed a Judge of the Supreme Court of Victoria in 1970.  He was appointed to this Court in 1972, replacing Sir Victor Windeyer.  At his swearing in, the Solicitor‑General, Mr Ellicott QC, said that Sir Ninian was “known for patience, kindliness and a willingness to listen”.  The President of the Law Council of Australia described Sir Ninian as a man of “unfailing courtesy”.  Anyone who appeared before Sir Ninian could attest to the correctness of this statement.

Sir Ninian did not subscribe to the view that any legal question admits of only one right answer.  In the Second Territories Representation Case, he expressed the view that the case was “very much one upon which different minds might reach different conclusions, no one view being inherently entitled to any pre‑eminence as conforming better than others to principle or to precedent”. 

It has been said that Sir Ninian’s main concern in deciding cases was the maintenance of correct legal principle.  Nevertheless, he was willing to depart from precedent which he considered to be wrong.  Perhaps the best known example of this was his sole dissent in Henry v Boehm. His opinion in this case concerning s 117 of the Constitution was later to be followed by the Court in Street v Queensland Bar Association.

Many of the judgments which he wrote, or in which he joined, have stood the test of time.  His reasons in Actors and Announcers Equity Association v Fontana Films Pty Ltd have been said to contain one of the clearest excursions on the subject of dual and multiple characterisation of statutes.  His judgment in Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” continues to be influential. 

Sir Ninian’s judgments endure in large part because of their clarity of expression, the deep knowledge of principle which they convey, their precision and their elegance of style.  Many judges and practitioners have remarked over the years that they are a pleasure to read. 

One of Sir Ninian’s lesser known achievements during his time as a Justice of the Court occurred during a circuit of the Court to Brisbane.  He set off the fire alarm at the old Supreme Court building while smoking his pipe late at night in chambers.  The local fire brigade was said to be “astonished, on arrival at the site of the hazard, to find a judge writing a judgment in a haze of smoke”. 

The importance of judicial independence was a topic upon which Sir Ninian often spoke extrajudicially.  On one occasion he memorably described an independent judiciary as a formidable protector of individual liberty yet also a vulnerable institution and a fragile bastion of that liberty. 

Sir Ninian resigned from the High Court on 11 May 1982 to take up the role of Governor‑General, replacing Sir Zelman Cowan.  At a ceremonial sitting to mark the occasion, Sir Ninian said that he would “always be proud to have been a member of a Court which has preserved strict judicial independence while striving towards two, not always easily reconcilable, goals:  the need for a high degree of certainty and continuity in the law and the equal need to ensure, so far as it lies in the Court’s power, that the law continues to satisfy the requirements of our evolving community”.

Sir Ninian was sworn in as Governor‑General on 29 July 1982.  As Governor‑General he was made a Knight of the Order of Australia, Knight Grand Cross of the Order of St Michael and St George and Knight Grand Cross of the Royal Victorian Order. 

Sir Ninian made numerous overseas visits in his capacity as Governor‑General.  These visits heralded his new role when his term as Governor‑General came to an end in 1989.  He would continue to make important contributions in the international sphere until 2009.  The breadth and depth of his work, in negotiations for peace and for the application of the rule of law internationally, may be gleaned from a short summary of his achievements in this period.

He was appointed Australia’s first Ambassador for the Environment in 1989.  A major focus of his work was preparation for “Earth Summit”, the United Nations Conference on Environment and Development.  In 1991 he served as an Observer at the Convention for a Democratic South Africa.  Although subsequent discussions ended in a stalemate, they were a step towards free elections in 1994.  1991 also saw Sir Ninian participate in an important Australian event, the Constitutional Centenary Conference, which commemorated the National Australasian Convention of 1891.  The success of this conference led to the establishment of the Constitutional Centenary Foundation, of which he was inaugural Chair.

Sir Ninian chaired Strand 2 of the Northern Ireland Peace Talks in 1992.  These negotiations did not lead to a substantive agreement, but it was said that he won the respect and confidence of all participants.  His services in the cause of peace in Northern Ireland were a contributing factor to him being made a Knight of the Order of the Garter by the Queen in 1994. 

He was appointed an ad hoc Judge of the International Court of Justice in 1992 to sit on the Case Concerning East Timor.  He chaired the First Plenary Meeting of Members of the Permanent Court of Arbitration.  He was a Judge of the International Criminal Tribunal for the former Yugoslavia and of the International Criminal Tribunal for Rwanda.  He was a Commonwealth of Nations Special Envoy to Bangladesh.  He chaired the Group of Experts for Cambodia and was a member of teams appointed by the International Labour Organisation to assess forced labour in Myanmar.  One of the last positions he held was membership of the Ethics Commission of the International Olympic Committee.

Sir Ninian Stephen will be remembered as a great statesman.  As a Justice of this Court he will be remembered by all who worked with him, or who appeared before him, for his intellect, his depth of knowledge of the law, his collegiality and his courtesy. 

Throughout his distinguished career, his wife Valery participated fully in their public life.  The Court extends its sympathy to Lady Stephen, to their five daughters, Mary Stephen, Ann Stephen, Sarah Stephen, Jane Kinsman and Elizabeth Stephen, their children and grandchildren.  We trust that his family will take comfort from the fact that he is acknowledged as one who gave great service to this Court and to his country.

The Court will adjourn until 10.15 am.

AT 9.43 AM THE MATTER WAS ADJOURNED