Law

The Fortunate Life Of Ninian Stephen

stephenPhilip Ayres is one of the best biographers this country has ever produced. He is also one of the ablest contemporary Australian non-fiction writers. His latest subject is one he knows very well—Sir Ninian Stephen. (Hereafter that subject will be called, for short and with respect, “Stephen”.) Ayres’s title is Fortunate Voyager: The Worlds of Ninian Stephen. The allusion is to Robert Louis Stevenson’s contention that a traveller in the wilderness of this world who finds many honest friends is a fortunate voyager. But Ayres demonstrates that Stephen was fortunate in numerous other ways.

Stephen must be the most decorated of Australians. He possesses four awards for more than four years’ service in the Second World War, including the New Guinea campaigns at the end of it. He possesses five knighthoods (two in the personal gift of the Queen). The first knighthood, conferred shortly after his appointment to the High Court, was largely in consideration of services to be rendered, not those already rendered as barrister and judge of the Supreme Court of Victoria. The rest recognise the labour and self-sacrifice involved in a remarkable career after he left the High Court—as Governor-General from 1982 to 1989, as Australian Ambassador for the Environment, as chairman of Northern Ireland peace talks, as an ad hoc judge of the International Court of Justice, as a founding member of the International Criminal Tribunal for the former Yugoslavia (the first war crimes tribunal since those which sat at Nuremberg and Tokyo), as mediator between government and opposition in Bangladesh, as leader of the United Nations delegation to Cambodia to work out how former Khmer Rouge leaders should be tried, and as leader of two United Nations missions to Burma to investigate the extent of forced labour in that country. Other activities involving extensive overseas travel included work for the Melbourne Olympic Bid Committee, other work related to the International Olympic Committee, and numerous legal addresses. Then there were many domestic tasks. Examples include reviewing the future of the Institute of Advanced Studies at the Australian National University, chairing the Constitutional Centenary Foundation, and chairing an inquiry into the safety of Australian blood banks. Those activities were carried out by Stephen at various stages between his sixty-fifth and eighty-second years. And there are many other activities he has maintained until very recently.

Not all these enterprises were enjoyable. Stephen generally enjoyed excellent health, but he was far from young during this late blooming career. Some of his activities involved working in conditions of real hardship in places which had been and continued to be ill-governed, like Cambodia, Burma and Bangladesh. Some involved handling people whose murderous pasts did not enhance their attractiveness (in Ireland, the Hague and Cambodia). Some involved dealing with people, such as academics or advocates of particular constitutional positions, whom it was hard to bring to agreement. But he managed to establish fruitful relationships with difficult customers against all the odds. For example, there was mutual respect between him and Ian Paisley, who supplied Ayres with warm tributes to Stephen.

What talents did Stephen bring to his attempt to perform this extraordinary range of difficult tasks?

Stephen’s first striking talent was his temperament. He was charming, gentle, slow to wrath, relaxed, confident, urbane, and, as he grew older, authoritative and dignified. His calm courtesy was rarely ruffled. Within the limits marked by those traits, he was a very good negotiator, adviser and public speaker.

His second talent lay in his intellect. His parents were poor. His father left the matrimonial home in Oxfordshire while he was a baby, and never returned. Stephen’s youth became peripatetic. His development was greatly influenced by a woman for whom his mother worked, originally as a maid, Nina Beatrice Milne. Miss Milne was a strong-minded woman who dominated decisions about Stephen’s education, which she funded entirely out of her own resources. Until Stephen came to Australia at the age of seventeen, he spent a lot of time on the Continent. He went to very good schools like George Watson’s College in Edinburgh, the Edinburgh Academy, St Paul’s School in London, various Swiss schools, and finally spent a year at Scotch College, Melbourne.

Miss Milne was fanatically anti-Semitic, anti-Catholic and pro-Nazi. She took Stephen to the 1938 Nuremberg Rally, where he photographed Hitler. But it is not possible to imagine two human beings more unlike than Hitler and Stephen. Miss Milne’s attitudes were not adopted by Stephen and, as children often do when excessively pushed in one direction, he may have reacted against them.

In the course of these travels, Stephen came to speak German well and French impeccably—a skill he employed as governor-general in conference with President Mitterrand, without an interpreter. His unusual education also seems to have inculcated habits of hard work and clear expression.

A third quality seems to have been generosity of spirit. Like one of the characters in Oklahoma, he found it impossible to say “No”. This may have reduced the efficiency with which he performed some tasks. He certainly spent a lot of time on jobs in Australia which, though difficult, were much less significant and worthwhile than his even more difficult work overseas.

Ayres convincingly demonstrates that some of Stephen’s activities were unsuccessful, notably the Constitutional Centenary Federation. But what successes can be claimed in this long career! Stephen is sailing into his rest, and it is appropriate to approach the question sympathetically.

With his superb natural dignity, he was a very successful governor-general. Like most governors-general since his day, he was criticised for speaking on controversial questions. Virtually every person appointed to that post has had qualities of character or intelligence or experience which led to the development of strong and usually informed opinions. No doubt it is important that some restraint be exercised in expressing them in the numerous speeches which are a large part of the vice-regal lot, but it would take super­human self-control to make that restraint complete. If Stephen sinned in this respect, his sins were relatively venial.

Ayres claims that, apart from Sir John Kerr, Stephen was the first governor-general to represent Australia to the world in any significant way. This claim appears to be substantially correct. But whether the development was a wise one is more questionable. Whatever the extent of the governor-general’s reserve powers, the conduct of foreign affairs is best restricted to professionals reporting to a minister responsible to parliament.

At all stages he showed humanity to the wretched and the defeated—to John Koowarta, for example, and the exiled Sir John Kerr.

He may not have brought immediate peace to Northern Ireland in 1992. No one ever had, since the reign of William and Mary, or even since the reign of Henry II. But he earned respect from all sides. He managed to prevent any fundamental breakdown. There is a strong argument that his patient efforts helped bring about the Good Friday Agreement of 1998. If it lasts, it may come to be seen as the greatest achievement of both the Major and Blair governments, whose annals are barren of many others. His technique was to encourage the parties to state their positions as clearly as possible and let them arrive at their own solution, rather than devising some brilliant initiative of his own and forcing it on the parties. It is very doubtful whether the latter course would have been more successful than the former.

There has long been a controversy about whether the Nuremberg tribunal had jurisdiction: figures as diverse as Bishop von Galen and Sir Owen Dixon denied it. The same is true of the Tokyo tribunal. There is a similar controversy about whether the International Criminal Tribunal for the former Yugoslavia had jurisdiction. Assuming it did, and putting aside numerous other arguments against trials of that kind, there can be no doubting the skill, dedication and professionalism Stephen brought to his duties—devising procedural and evidentiary rules, making interlocutory rulings in the trial of Tadić, and eventually deciding the case. In particular 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.

There is no reason to suppose that anyone could have performed Stephen’s role in Cambodia and Burma more successfully.

Ayres passes on the opinions of contemporaries that Stephen was a very capable barrister. The passing of time makes it difficult to contradict opinions of that kind. He was a good Supreme Court justice. Ayres describes Stephen as being “certainly among the best on the High Court bench” in the 1970s and 1980s. In a sense that is true. In another sense it is misleading. In assessing the claim for Stephen’s period—1971 to 1982—it is necessary to remember that his period on the court, and indeed the decade or so after he left it, were times when the prevailing style by which the justices tested arguments rested on courtesy and decorousness. That approach contrasted with earlier periods, particularly the 1950s and 1960s. But two members of the court did not fall into this category. Sir Garfield Barwick believed in the determined testing of any proposition antithetical to his desired course, however much his pugnacity alienated the other judges. He practised the technique which the young Owen Dixon had disliked in Griffith CJ—that of tearing arguments to shreds before they had been fully admitted to the mind. And Murphy J, who was often compelled to consume a dreary diet of dissent, adopted an approach to argument which varied between maintaining a surly sullen silence, emitting the sounds of slumber, and delivering earnest, impassioned and minatory statements of his point of view. The other judges were much more content to let counsel develop the case which the respective parties wanted to advance, at least until the longueurs of counsel were ceasing to produce any useful returns at all.

At the time Stephen was sometimes described as being only “a good front of house man”. But that was a minority opinion. Most observers highly respected his diligence and skill.

Where, then, did Stephen rank? It is difficult to rate him above Gibbs J or Mason J. Because of their ordered and business-like methods they might be described as being the engine room of the High Court in this period. It is also difficult to rate Stephen above Barwick. As Ayres says, Sir Garfield’s judgments frequently appear ill-written. They often seem to have been published in some form other than the final draft. But their author knew an immense amount about the law and about the conduct of litigation. Murphy’s judicial method was unusual, and he had little impact before his death, but many of his ideas have proved very influential posthumously. Stephen’s achievement was certainly superior to that of Wilson J, and also to that of McTiernan J, charming old gentleman though he was. It may have been superior to that of Menzies J, whose skills at the bar did not seem to translate themselves fully to the bench. The same might be said of Aiken J, but it is hard to call him inferior to Stephen.

Perhaps Stephen was superior to Owen J, although two relevant factors must be remembered. There was in Owen J immense physical courage and probity: he showed heroic endurance of terrible pain at the end of his career. He was also a master of personal injury law, now a much reduced part of the High Court’s work. The short career of Walsh J, terminated by a premature death, revealed deep intellectual power. The short career of Jacobs J, terminated by erroneous medical advice, displayed considerable originality. And the very long career of Brennan J reflected deep thoughtfulness.

It may be that there are no golden ages in the law, but the High Court was strong in the period in which Stephen served on it. Stephen was one of a group of able justices. If not “among the best”, he was a worthy colleague in a strong court. Like all his contemporaries but Murphy J, he was concerned primarily to enunciate the received law and develop it only incidentally and piecemeal—an approach which has tended to become less common since his departure. His judgments are not free from self-contradiction, but that is an occupational hazard of judicial office. It is said that towards the end of McTiernan J’s forty-six-year career on the Court he became paralysed with worry about whether he was reaching conclusions inconsistent with those he had reached decades earlier. Ayres usefully draws attention to several important Stephen judgments, particularly Watson v Lee (on the importance of publicising regulations) and his joint judgment with Aiken J in Bunning v Cross (on illegally obtained evidence).

Stephen was reluctant to overrule prior cases. He, and Gibbs J, demonstrated self-abnegation in that respect in 1977, in Queensland v Commonwealth (the “Second Territory Senators Case”). In 1975, in Western Australia v Commonwealth (the “First Territory Senators Case”), the High Court had upheld the validity of legislation permitting four new senators to be elected—two for the Australian Capital Territory and two for the Northern Territory. Both Gibbs J and Stephen J dissented. In the Second Territory Senators Case changes in the membership of the court meant there was a majority view critical of the reasoning in the First Territory Senators Case. But Gibbs J and Stephen J declined to act on that view for various orthodox reasons. That is, they followed earlier authority even though their personal view was that it was wrong. I am not intending criticism of others in saying that there was a certain purity and integrity in that course.

Stephen was fortunate in more ways than his acquisition of many honest friends. He was fortunate in his upbringing, despite the loss of his father, learning about his fate only in 2007, and meeting his Canadian half-sisters only in 2009. He was fortunate in his gifts, those he had inherited and those he developed. He was fortunate in his good looks and his beautiful speaking voice. He was fortunate in the way he drifted into the law by accident, stayed in by accident, and took up all his later posts without any solicitation of them. That is, he was fortunate in the diverse politicians, conservative and socialist, who saw his merits. He was fortunate to have retained good health into old age sufficiently to perform the many tasks he undertook—generously, but sometimes unwisely. He was fortunate in that while Sir Garfield Barwick and Mason J were exposed to much obloquy for the events of November 11, 1975, he escaped that obloquy despite his conduct differing from theirs only in degree.

If there was one respect in which he was unfortunate, it was his propensity to vagueness and ambiguity. That propensity has caused him to be criticised for trimming and fence-sitting. Whether or not he actually had those traits, he certainly sometimes gave the strong impression that he had them. In part this stems from the emollient tendency of ex-governors-general—their desire not to upset people. In part it stems from his innate courtesy. In part it stems from a desire to see an opposing point of view. In part it stems from a natural scepticism—a lack of ultimate certainty. It is seen most clearly in certain press interviews which Ayres quotes. Subtly phrased answers are given, each of which seems clear enough by itself, but each of which tends towards contradiction of other answers. These traits mean that Stephen appears to have changed his views on issues such as federalism, or the desirability of the external affairs power in its currently favoured wide construction, over the course of his long career. As Ayres says in another context, there is a point “at which courtesy and consideration decline into complaisance”. The Stephen public style has a beneficial negative consequence: it is a reminder of the virtues of plain, blunt speech.

This book casts light on Stephen’s views on one little controversy unfolding at the moment amongst judges and ex-judges. It concerns the relations—actual and ideal—between different members of an appellate court, and their methods of arriving at their conclusions. Should each judge publish reasons, or should all majority reasons be joint (as in the United States Supreme Court), or should all reasons be joint with no separate concurring or dissenting judgments (as was the former practice of the Privy Council and as happens in the European Court of Human Justice)? Most people do not favour the first course, though Lord Neuberger, President of the United Kingdom Supreme Court, seems sympathetic with it. Up to a point Stephen apparently was too. Ayres records that in 1995 Stephen informed Gareth Evans that one feature of the procedure at the International Court of Justice could be adopted by the High Court with advantage. In the International Court, the individual judgments of each judge were distributed only to those who had already written theirs. Stephen thought that this “makes everyone work out their own solution rather than one or two merely agreeing with a more dominant or energetic member of the Court”.

This fine book is written with the clarity and generosity characteristic of Philip Ayres. His conclusions about Stephen are generally but not universally favourable. He paints charming pictures. One is of Stephen’s life at the Victorian Bar in the pre-skyscraper era. Another is of the domestic life of the family in the 1950s, with the “sitting-room shelves always [carrying] a lot of Penguin books in orange (general fiction) and green (crime)”. Another is his closing picture of Stephen now, sitting after meals on the balcony of his flat, “looking over the city where his career had started sixty-three years ago, in his left hand a decent whisky and in his right a lit cigar”. Even those who do not smoke and dislike whisky will regard that as not a bad way to spend one’s ninety-first year.

This book will raise the already high reputation of Ayres. And it will develop in many readers some admiration for Stephen—qualified, but real.

The Hon. Dyson Heydon AC served as a judge on the High Court from 2003 to 2013. He is now presiding over the Royal Commission into Trade Union Governance and Corruption.

 

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