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Stephen, Ninian Martin

The Oxford Companion to the High Court of Australia

Hilary Charlesworth

Stephen, Ninian Martin 

(born 15 June 1923; Justice 1972–82)

was the only child of Barbara, née Cruickshank, and Frederick Stephen. His father, a Scots poultry farmer, died when Stephen was only a few weeks old, after being gassed in World War I. His mother worked as a companion to a wealthy Queensland woman, Nina Beatrice Mylne, after whom Stephen was named. Mylne took a considerable interest in the young boy and sent him to the Edinburgh Academy and then to St Paul's School in London. As a teenager, he attended Chillon College on Lake Geneva in Switzerland. Mylne decided to return to Australia after war was declared, and Stephen and his mother accompanied her in 1940. On arrival, Stephen attended Scotch College, Melbourne, for two terms. He began his legal career as a five-year articled law clerk with Arthur Robinson & Co in Melbourne and at the University of Melbourne in late 1940, but this was interrupted after one year by war service in the Australian Imperial Forces from 1941 to 1946. On discharge, Stephen completed his law course and articles and was admitted to practice in Victoria in 1949.

On discharge, Stephen met Valery Sinclair, a University of Melbourne arts graduate. They were married in 1949 and have five daughters. The long, close, and happy marriage has no doubt contributed to Stephen's famous equanimity and charm. And perhaps because he has always been surrounded by women at home, Stephen was unmarked by the sometimes patronising attitude towards women encountered in the culture of the Bar and judiciary in Australia.

Stephen, Ninian MartinClick to view larger

Ninian Stephen, Justice 1972–82

In 1952, Stephen left Arthur Robinson & Co and joined the Melbourne Bar, developing a specialised practice in equity, company law, constitutional law, and taxation law. He read with DM Little, later a Victorian Supreme Court judge. Stephen developed a reputation as an outstanding junior counsel to Aickin, and indeed postponed taking silk to continue in this role. He was appointed QC in 1966, became a Justice of the Supreme Court of Victoria in 1970, and was appointed to the High Court on 1 March 1972.

Stephen's approach to High Court cases is not easily categorised. While he was personally a liberal and progressive thinker, these views are not consistently reflected in his judgments, which reveal a cautious attitude to judicial review and no particular social or political agenda or judicial philosophy. 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 outcomes 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 to let the result of the case take care of itself. His judgment in Simsek v Macphee (1982), on the rights of applicants for refugee status, is a clear example of his syllogistic method.

Early in his High Court career, Stephen was a dissenting voice for a broad interpretation of a constitutional guarantee in Henry v Boehm (1973). This case concerned the interpretation of section 117 of the Constitution, which prohibits discrimination on the basis of state residence. While the majority of the Court read section 117 very narrowly, Stephen was concerned with the practical effect of a South Australian Rule of Court applying to lawyers admitted in other Australian jurisdictions, which required three months residence in SA before admission as a legal practitioner. He pointed out that SA residents would not be affected by the rule, but a resident of another state would be forced to give up legal practice elsewhere for three months in order to meet the SA requirements. Stephen's common sense approach to section 117 was endorsed by the High Court in Street v Queensland Bar Association (1989).

This ‘common sense’ approach continued to display itself. In Adamson's Case (1979), Stephen had the ‘misfortune of disagreeing with other members of the Court’ on whether the South Australian National Football League was a ‘trading corporation’ for the purposes of the Trade Practices Act 1974 (Cth). In an impressive essay on Australian Rules Football, by a person who had no interest at all in the sport, Stephen said that ‘the fact that it is Australia's most popular spectator sport … which is in question is … of great importance’ (see Popular culture). It would not, he believed,

occur to many Australians to describe this Club as a trading corporation, and this for the good reason that both its predominant object and its sole activity is remote from trade and from profit-making. It does what it does to promote football, the income that comes its way being no doubt eagerly gathered in, but only as a means of better promoting its predominant purpose, the fostering of football.

In Clark King & Co v Australian Wheat Board (1978), Permewan Wright v Trewhitt (1979), and Uebergang v Australian Wheat Board (1980), Stephen contributed to the acceptance of a more generous approach to ‘reasonable regulation’ of interstate trade and commerce. In Permewan Wright, he said that the ‘guaranteed freedom should … be qualified in the interests of the community at large’ and provided a whimsical meditation on the nature of eggs. In that case, the testing and grading of eggs was held to be reasonably necessary to protect consumers of eggs (and therefore not to infringe section 92), since, as Stephen put it,

eggs are so notoriously perishable a foodstuff that in their deteriorated state they have much enriched the English language in a number of picturesque phrases. There are, perhaps, few other foodstuffs which combine the qualities of being so dependent for their wholesomeness upon freshness, of being so prone to deterioration and the freshness of which at the time of purchase it is so difficult for the consumer to determine from outward appearance. They are not merely perishable but are enigmatic to the ordinary shopper; nor is this quality confined to their state of freshness, it can be no easy matter to distinguish by eye alone between the various weight-related grades of egg.

Stephen often found himself occupying a singular position in major cases, sitting apart from both majority and minority. For example, in the AAP Case (1975), Victoria challenged a Commonwealth appropriation as outside Commonwealth power. While all the other members of the Court decided the case by determining the substantive meaning and effect of the relevant constitutional provisions (with the six Justices equally divided on the result), Stephen took a completely different tack by denying that Victoria had standing to bring the action.

In Koowarta's Case (1982), Stephen also took a position somewhere between the majority and minority Justices by presenting a narrower view of the scope of the external affairs power than the rest of the majority but a wider view than the minority. He insisted that, in order for a treaty to give rise to an external affair so as to activate the power of the Commonwealth to implement it by domestic legislation, its subject matter had to be a genuine matter of international concern.

Stephen's approach also differed from that of the other majority Justices, as well as from that of the minority Justices, in Ansett Transport Industries v Wardley (1980). Mason, one of the majority, reasoned that the Commonwealth law in question did not ‘confer a substantive right of dismissal’ on Ansett, but rather prescribed ‘the procedure … whereby the right to terminate may be effected’. Since the Commonwealth law assumed the right of dismissal provided by the general law, and Victorian legislation prohibiting dismissal from employment on the grounds of sex had modified that general law, there was no inconsistency under section 109. The minority Justices, on the other hand, took the view that the Commonwealth law did intend to deal exhaustively with all aspects of dismissal—substantive and procedural—and that the Victorian law intruded into a ‘field’ covered by the Commonwealth law. Stephen differed by saying that the Commonwealth law conferred a right of dismissal, but one that must be read in the context of the ends to which the Commonwealth law was directed: ‘the settlement of an industrial dispute’, not the entirely different purpose of preventing the ‘socially evil’ practice of sexual discrimination, with which the Victorian law was concerned. The two laws ‘intermeshed’; but there was no inconsistency.

Among Stephen's other noteworthy judgments are those in Russell v Russell (1976), where he and Mason provided the pivotal judgments that substantially upheld the validity of the Family Law Act 1975 (Cth), and in the Seas and Submerged Lands Case (1975), where he agreed with the majority that the Commonwealth's assertion of sovereignty over Australia's continental shelf was valid, but (dissenting with Gibbs) would have recognised state powers over the territorial sea. Another pivotal judgment was in A-G (WA); Ex rel Ansett Transport Industries v Australian National Airlines (1976), where he agreed with Barwick and Gibbs that the trade and commerce power does not authorise the regulation of intrastate trade when the only relationship with interstate trade is economic, but also agreed with Mason and Murphy that a similar economic justification was sufficient to bring the legislation within the territories power. In the Territory Senators Cases (1975 and 1977), Stephen joined with Gibbs in differing from the majority view, but also in adhering to it in the second case because they saw no sufficient reason for overruling the earlier decision. His tentative exploration in Caltex Oil v The Dredge ‘Willemstad’ (1976) of ‘the need … for some control mechanism based upon notions of proximity between tortious act and resultant detriment’ was subsequently to be picked up and substantially extended by Deane, while his eloquent essay on characterisation in Actors Equity v Fontana Films (1982) remains perhaps the clearest and most thoughtful exposition of the modern approach to that task.

Stephen maintained good personal relations with all his fellow Justices and never allowed jurisprudential differences to interfere in this. In the 2000 Sir Ninian Stephen Lecture at the University of Newcastle, Brennan observed that ‘collegiality in a numerically small court can be a fragile thing, especially when issues of great moment fall for decision. Sir Ninian's scholarship and experience, his urbanity and especially his openness of mind made professional association as easy and agreeable as personal friendship’. Brennan also recalled some memories of the one year the two men sat together on the Court:

I witnessed the working of an incisive and cultivated mind responding with seeming ease to an unrelenting caseload. There were moments of apprehension when, immediately before walking through the court door to take his seat on the Bench, Sir Ninian would tuck a fuming pipe into the pocket of his bar jacket. A sense of relief grew only with the passing minutes, although there was never a sign of conflagration.

In 1982, Prime Minister Malcolm Fraser appointed Stephen as Governor-General to succeed Zelman Cowen, a move that took most of Australia by surprise because Stephen had little public profile. The idea also surprised Stephen, but he accepted it with alacrity, perhaps as an antidote to ten rather solitary years on the High Court. At the time of the appointment, Gough Whitlam predicted that Stephen ‘would not frighten the horses’ as Governor-General. The comment significantly understated the energy, perspicacity, and curiosity both Stephen and his wife brought to the role. Stephen's relaxed manner and cheerful, self-deprecating humour dissipated much of the vice-regal pomp and ceremony. He would willingly admit to being true to the Scottish stereotype of being mean with money—although, he would point out, not successfully mean. The pipe-smoking, tall, urbane figure was known for his interest in others and his sudden uproarious laugh. He was much happier asking questions than speaking about himself or his views. Stephen quickly established cordial relations with both Prime Ministers with whom he worked, Fraser and Bob Hawke.

Stephen's term as Governor-General will also be remembered for his special interest in indigenous issues, particularly his participation in the grand gesture of the handing back of Uluru to its indigenous owners in 1985. Stephen was respected by Australian republicans such as Manning Clark, who declared that he would make an ideal Australian President. The particular regard in which Stephen was also held by his royal principal is indicated by his induction as a Knight of the Garter, a rare honour bestowed personally by the Queen, in June 1994. While in office, Stephen spoke of the constitutional role of Governor-General as a ‘fait accompli’ and ‘no use railing against’. In 1976, during his time on the High Court, he gave a subtle speech in the wake of the dismissal of 1975 in which he displayed rare insight into the role of the Governor-General and the intricate operation of the conventions of the Constitution—all couched in characteristically elegant and teasingly allusive prose.

After his term as Governor-General, Stephen has enjoyed the occasional controversial excursion into public affairs, including on one occasion calling for the abolition of the states. Stephen has taken on a wide range of international positions. He was appointed Australia's first Ambassador on the Environment in 1989. In 1992, the UK and Republic of Ireland governments appointed Stephen to chair Strand Two of the Talks on Northern Ireland. In 1993, he was elected, on Australia's nomination, for a four-year term as a judge on the International Criminal Tribunal for the Former Yugoslavia (ICTY). Stephen was subsequently elected to the appeal division of the ICTY and of the International Criminal Tribunal for Rwanda. His strong commitment to the values of the common law is evident in an opinion in the controversial Tadic Case (1995). At issue was whether witnesses in sexual assault cases could remain anonymous because of the trauma and danger involved in giving evidence. The majority of the Trial Chamber accepted that witness anonymity could be justified in certain exceptional circumstances. Stephen dissented, arguing that a fair trial required that the accused always know in advance the identity of all witnesses.

In 1995, Stephen was nominated by Australia as its ad hoc judge on the International Court of Justice in the Case Concerning East Timor and joined with the majority of the Court in dismissing on technical grounds Portugal's claim that the 1989 bilateral treaty between Australia and Indonesia dividing up resources in the Timor Gap was invalid. In 1998, the Secretary-General of the UN, Kofi Annan, asked Stephen to chair a commission on the establishment of a tribunal to deal with war crimes in Cambodia. He has also held a Commonwealth of Nations appointment as facilitator of discussion between government and Opposition in Bangladesh, has chaired a number of Australian government inquiries, and serves on the Ethics Commission of the International Olympics Committee.

Stephen is inevitably likely to be remembered more for his public role as Governor-General and internationally eminent person than for his ten-year term on the High Court. However, although his national judicial career has been overshadowed by his later achievements, Stephen's High Court legacy is a distinguished one. He was a wise, courteous, and insightful judicial figure with an elegant judicial style and a truly independent mind.

Hilary Charlesworth

Further Reading

Ninian Stephen, ‘Address to Mark the 75th Anniversary of the Constitution’ in David Marr, Barwick (1980) 302Find this resource:

    Ninian Stephen, ‘Judicial Independence: A Fragile Bastion’ (1982) 13 Melbourne University Law Review 334Find this resource: