Remembering the Rt Hon Sir Ninian Stephen KG AK GCMG GCVO KBE QC 1923 – 2017

Sir Ninian Stephen led a remarkable life of public service, both in Australia and overseas. Professor Tim McCormack pays tribute to a much-loved member of the MLS community.

Sir Ninian Martin Stephen (LLB 1949, LLD 1985), who had many associations with the Melbourne Law School throughout his life, including his years as an honorary Professorial Fellow of the Law School.
Sir Ninian Stephen KG AK GCMG GCVO KBE QC. Image credit: Michael Silver, Magnet.

Ninian Martin Stephen (LLB 1949, LLD 1985) was born to Scottish parents, Frederick Stephen and Barbara Cruikshank, in Oxfordshire, England in June 1923. Generations on both sides of Ninian’s family had served on the estates of wealthy Scottish families as gamekeepers and domestic servants, and Ninian’s journey from this background to prominence as the most highly decorated Australian citizen (with five separate knighthoods) is testament to the profound potential of opportunity.

The crucial pivot for opportunity in Ninian’s life was his mother’s connection with an Australian benefactress named Nina Beatrice Mylne. Nina’s family were shareholders in a successful Queensland pastoral conglomerate, and Nina and her two sisters enjoyed relatively comfortable European lives funded by antipodean pastoral profits.

Ninian’s mother was employed as a personal maid to Nina Mylne in London in 1914 and the two became inseparable for the rest of Nina’s life. Ninian’s name was chosen to honour Nina.

Frederick Stephen had served in World War I and Ninian was told that his father had died prematurely from exposure to gas. It wasn’t until Sir Ninian’s 80th year that he discovered that Frederick Stephen had not died but had left his wife and infant son, travelled to Canada in 1928, married and produced a family of three children and several grandchildren.

Frederick Stephen died in British Columbia in 1974, presumably without any knowledge that his son had been elevated to the bench of the High Court of Australia two years earlier. Ninian and his family subsequently discovered, and have continued to enjoy warm and happy friendships with, three half-siblings and an extended Canadian family.

So it was that Ninian was under the care of his mother and Nina Mylne, whose relationship had shifted from one of employment to one of firm friendship. Nina devoted herself to assisting in Ninian’s upbringing, which Sir Ninian always acknowledged with deep gratitude. He recalled that there were always books for him to read, toys to play with and travel adventures to experience and embrace. Nina, Barbara and Ninian lived for relatively short stints in Geneva, Paris and Weisbaden before settling in Edinburgh in 1928, where Ninian commenced his schooling. Barbara managed private hotels there to help contribute income during the lean pastoral years of the late 1920s caused by prolonged drought  in Australia. Ninian attended George Watson’s School in Edinburgh and later the Edinburgh Academy, and enjoyed regular holidays with Grandpa and Granny Cruikshank in Tomatin. As pastoral returns increased, more travels ensued and Ninian attended a year of senior secondary education at Chillon College in Glion, a beautiful village nestled in the hills above Montreux, overlooking spectacular Lake Geneva across to Mont Blanc and the French Alps.

With the outbreak of World War II, Nina and Barbara decided to leave Europe and move to Australia. They sailed from Genoa and arrived in Melbourne in early 1940. Ninian spent his final year of secondary school at Scotch College in 1940 and then commenced his law studies at Melbourne Law School in 1941, while articled to John Harper at the legal firm of  Arthur Robinson and Co. During his studies, Ninian joined the Melbourne University Rifles officer training unit. News of the bombing of Pearl  Harbour was announced on the train as Ninian’s unit headed to a training camp at Puckapunyal Army Base near Seymour. What was expected to be a four-week training camp transformed into four years of military service. Ninian was assigned to a Water Transport Unit and served in far north Queensland and Borneo.

At the end of the war Ninian resumed his law studies and his position at Arthur Robinson and Co. During his studies he met and fell in love with Valery Sinclair.

Ninian often claimed that the greatest gift he received from the University of Melbourne was his beloved life partner.

Ninian and Val were married in 1949 and Val was a constant companion and soulmate throughout their 68 happy years together. They had five daughters – Mary, Ann, Sarah, Jane and Elizabeth – and many grandchildren and great-grandchildren.

Ninian joined the Victorian Bar in 1952, took silk in 1966 and was appointed to the bench of the Victorian Supreme Court in 1970. His practice at the Bar was mainly in commercial law and he developed a reputation as a skilled advocate, with what Sir Anthony Mason once described as “the most mellifluous voice” in the Australian legal profession.

Ninian’s intellectual acuity and insightful legal mind were acknowledged with his appointment to the High Court of Australia in 1972 and with his investiture as a Knight of the Realm (KBE) – the first of his five knighthoods.

Sir Ninian served on the Court for a decade and was part of a ‘moderate’ core of judges during the period of contrasting approaches of Chief Justice Garfield Barwick and Justice Lionel Murphy. In 1982, Prime Minister Malcolm Fraser appointed Sir Ninian Governor-General of the Commonwealth and Sir Ninian held the position until 1989. Sir Ninian and Lady Stephen were much admired for their warmth, hospitality and informality at Yarralumla and in vice-regal office around the nation. They were involved in the return of Uluru to the custodianship of the traditional owners of the land and always spoke with deep fondness of that experience.

I once asked former Prime Minister Malcolm Fraser why he had chosen Sir Ninian as Governor-General and he told me he admired Sir Ninian’s intellect and his commitment to justice and the rule of law. He had also heard Sir Ninian deliver a memorable speech to the Melbourne Scots and was impressed by Sir Ninian’s oratory, while also conceding he was keen to appoint someone the media had not identified as a potential candidate.

After vice-regal office, Sir Ninian and Lady Stephen could surely have been forgiven for choosing quiet retirement from public life but, instead, they embarked on a succession of significant appointments, nationally and globally. From 1989-1992 Sir Ninian served as Australia’s first Ambassador for the Environment, including leading Australia’s delegation to the Rio Earth Summit in 1992. From 1991 until the middle of the decade, he chaired the Constitutional Centenary Foundation, a non-partisan body dedicated to encouraging constitutional understanding and debate in the years leading to the constitutional centenary. While undertaking these roles, Sir Ninian also accepted an appointment by the Secretary-General of the Commonwealth to join a group of distinguished observers of the Convention for a Democratic South Africa (CODESA) in Johannesburg in December 1991. In 1992 Sir Ninian was appointed by the governments of Ireland and the United Kingdom to serve as Chair of the second strand of the Northern Ireland peace talks. By all accounts, Sir Ninian was a gracious, diplomatic and highly effective chair and shortly after the end of the process he was appointed by Her Majesty Queen Elizabeth II as a Knight Commander of the Most Ancient Order of the Garter – one of the highest honours the sovereign can bestow.

In 1993 Sir Ninian commenced an impressive international judicial  career. He served as Judge Ad Hoc at the International Court of Justice (ICJ) in the proceedings Portugal brought against Australia over East Timor’s status in maritime negotiations, and also as a Foundation Judge of the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague. As part of that role, Sir Ninian was asked to judge the ICTY’s first trial of Dusko Tadic, a Bosnian Serb politician and former Serbian Democratic Party leader who was convicted by the tribunal of crimes against humanity, grave breaches of the Geneva Conventions  and violations of the customs of war, and sentenced to 20 years imprisonment. Sir Ninian is universally remembered with admiration and respect by both his judicial colleagues and by those who appeared before him. The late Antonio Cassese, Foundation President of the ICTY, described Sir Ninian as “head and shoulders above” all his judicial colleagues and Cassese was not speaking only of physical stature.

Before the commencement of the Tadic trial, Sir Ninian accepted another appointment by the Secretary-General of the Commonwealth to travel to Bangladesh in 1994 to mediate in the growing political impasse between the government and opposition leaders of the country.

Following the end of his term as ICTY judge, Sir Ninian was appointed by the International Labour Organisation (ILO) to inquire into Burma’s implementation of its ILO treaty obligations – particularly in relation to allegations of forced and child labour. He was appointed by the United Nations Secretary-General to lead an inquiry into the feasibility and desirability of the establishment of an international criminal tribunal  for Cambodia and he also served for several years on the Ethics Commission of the International Olympic Committee in Lausanne.

The common thread throughout all the reports of Sir Ninian’s contributions in these high-profile international roles is of his personal warmth, his genuine interest in the subject matter of his appointments, his clarity of thinking on the nature and limits of his respective roles, his intellect, his diplomacy and the deep respect and admiration he engendered in all those around him.

Sir Ninian had a wonderful sense of humour and was excellent company. He loved his associations with Melbourne Law School and was always willing to participate in our programs. He served as the Foundation Patron of the Asia Pacific Centre for Military Law from 2001 until his passing and he attended many functions in that capacity. He was an honorary Professorial Fellow of the Law School for many years and unquestionably one of our most illustrious alumni. The Law School will continue to honour his memory through the annual Sir Ninian Stephen Visiting Scholarship to the Asia Pacific Centre for Military Law.

His passing is a great loss to those of us privileged to know him well, to our Law School, to our nation and to the global community.

This article originally appeared in MLS News, Issue 19, May 2018.