Tribute to Sir Zelman Cowen
On 23 October, the Hon Dr Barry Jones AC paid tribute to Rt Hon Sir Zelman Cowen AK GCMG GCVO QC in a speech at the Melbourne Law School's Golden Alumni Reunion.
I was delighted, indeed honoured, to have been invited to pay tribute to a great Australian, Sir Zelman Cowen, to commemorate the centenary of his birth.
Zelman Cowen was born in Crimea Street, St Kilda on 7 October 1919.
As he often reminded me, Alfred Deakin died in South Yarra on the same day, and was later buried in St Kilda.
Sir Samuel Griffith, major architect of the Australian Constitution and first Chief Justice of the High Court, retired in the same month and Sir Edmund Barton, first Prime Minister of the Commonwealth, then a Justice of the High Court, died three months later.
Zelman felt that he had been born at a turning point in Australian history.
His parents were both Australian born but both sets of grandparents had migrated to Australia from what is now Belarus.
Zelman Cowen was 13 years older than me but many factors in our lives overlapped. We both grew up in the St Kilda/Caulfield area, haunted the Victory and Palais Theatres, enjoyed Luna Park, were avid listeners to the ABC, loved music and were influenced by the musician Henri Penn, were both failed pianists, had some contact with the controversial academic Professor W A Osborne, and were challenged and mentored by John Vincent Barry.
The Hon Dr Barry Jones speaks to MLS Alumni at the Golden Alumni Reunion.
His sister Shirley and I were born within weeks of each other.
Educated at St Kilda Park State School, then Scotch College and the University of Melbourne, Zelman was a tutor at this university at the age of 19. He joined the RAN when World War II was declared, became the Rhodes Scholar from Victoria for 1941, but was unable to take up the scholarship until after hostilities had ended. He worked for a time in the cipher unit in General Douglas MacArthur’s headquarters in Brisbane.
He married Anna Wittner in 1945.
At New College, Oxford, he completed a BCL, became Vinerian Scholar and a Fellow of Oriel College 1947-50. He was also a legal consultant to the British Army of Occupation in Germany.
His stellar career was marked by exceptional diversity:
- Professor of Public Law, University of Melbourne 1950-66
- Dean of the Melbourne Law School 1951-66
- Vice Chancellor of the University of New England 1967-70
- Vice Chancellor of the University of Queensland 1970-77
- Governor-General of Australia 1977-82
- Provost of Oriel College, Oxford 1982-90
- Chairman of the UK Press Council 1983-88
- Pro Vice-Chancellor of Oxford University 1988-90
- Chair of John Fairfax Holdings Ltd 1992-94
In 1950, aged 30, he was appointed as Professor of Public Law at Melbourne. On returning from Oxford in 1951 to take up his appointment he was immediately thrust into the position of Dean of the Law School after Professor George Paton became Vice Chancellor.
Australia then had seven universities, with a total enrolment of about 33,000 students, overwhelmingly male. The University of Melbourne was the only one in Victoria, with about 4500 students.
At a time when the legal profession in Victoria was extremely conservative, and patriarchal, Zelman Cowen created a very strong Law Faculty. Wolfgang Friedmann was already here and the faculty included Pat Donovan, Harold Ford, Arthur Turner, Norval Morris, David Derham, Hans Leyser, Peter Brett, Julian Philips, Sandy Clark and Louis Waller.
Its strength was also because, for the first time, staffers were mainly full-time professional teachers, a number of whom had been exposed to the rigorous and stimulating methods of the best American law schools.
Many barristers – and future judges – lectured in their areas of speciality, including T. W. Smith, Alistair Adam, George Lush and Dick McGarvie.
At various times he was a Visiting Professor at the Universities of Chicago, Harvard, Utah, Illinois, Washington, Calcutta and Virginia. I can recall hearing him described as ‘the Visiting Professor from Harvard.’
Zelman Cowen was an outstanding teacher and one of the finest orators I ever heard. He became a very effective broadcaster and effortlessly made the transition to television.
He became the prototype for ‘the public intellectual’. Journalists classified him as ‘AA’ – always available.
We were both regular panellists on two radio quiz shows, Information, Please on what was then 3DB, belonging to The Herald and Weekly Times, and later on the ABC, Beat the Brains, a reincarnation of Information, Please.
I hasten to add that these were not quiz shows like Hard Quiz, when contestants compete with each other for prizes: they were in the apostolic succession to the BBC's Brains Trust, where an expert panel collaborated in finding answers to complex questions submitted by listeners.
In December 1961 I spent just over three weeks with Zelman on SS Mariposa sailing from Sydney to San Francisco. The Mariposa voyage was a prize that I had won on the television quiz Pick-a-Box. (I explain this for the benefit of anyone here aged less than 70).
I don't want to fall into anecdotage but in the last few days I have had a sharp recollection of an event at a break in the long voyage to California.
Zelman had a prize student, an American, who spent a term or two in Melbourne and became an academic lawyer and attorney in Honolulu. He picked us up from the dock and drove us to observe some of the great beauties of Hawaii.
Then we went to lunch.
At lunch, Zelman's protégé's voice dropped and he confided that Hawaii was not only under surveillance from UFOs but that he could demonstrate that aliens had landed.
He offered to show us proof.
Zelman, whose face was a study, said that we had to get back to the Mariposa immediately.
And so, we lost our chance to be part of a critical moment in history.
Zelman regarded himself as a ‘liberal conservative’ but he was an outspoken and exceptionally lucid advocate for many progressive causes:
- Opposition to Menzies’ Referendum in 1951 for the abolition of the Communist Party
- Opposition to the death penalty
- Author of the official ‘Yes’ case for the 1967 Referendum on recognising Aboriginal People in the Constitution
- Opposition to White Australia Policy
- Liberalising censorship
- Promoting civil liberties
- Recognising the Peoples’ Republic of China
- Advocating an Australian Republic
He was a member of the Victorian Anti-Hanging Committee – formed first to campaign against Premier Henry Bolte's decision in August 1962 to hang Robert Peter Tait and revived in 1966 in an unsuccessful attempt to stop the execution of Ronald Ryan (1967).
He spoke very powerfully on the Tait case and was part of the legal team which tried to persuade the Supreme Court to order a stay of execution. Ultimately, the High Court intervened and within a few days Cabinet commuted Tait’s sentence.
Throughout the unsuccessful campaign to save Ryan, Professor Cowen was in Brisbane, and not directly involved, although he offered wise advice and moral support.
He delivered the ABC's Boyer Lectures for 1969, The Private Man, on the erosion of privacy.
He also served with Michael Kirby on the Australian Law Reform Commission 1976-79 (which overlapped with his Governor-Generalship).
His books included Sir John Latham and Other Papers (1965) and Sir Isaac Isaacs (1967), the latter becoming his DCL thesis at Oxford.
He was absent from Melbourne from 1967, when he took up the Vice-Chancellorship of the University of New England, until 1990, when he returned from Oxford.
Appointed CMG in 1968, he left UNE in 1970 to become Vice Chancellor of the University of Queensland in 1970.
He was knighted in 1976, courtesy of Sir Joh Bjelke-Petersen, then Premier of Queensland. It was not for nothing that Brisbane was known as ‘the city of dreadful knights’ but Sir Zelman was unusually deserving.
Later, he was appointed PC, AK, GCMG and GCVO.
In 1977, Zelman Cowen became the first and, so far, the only academic appointed as Governor-General of the Commonwealth of Australia. There have been 13 British peers, three Australian soldiers, four politicians, four judges and one archbishop. Quentin Bryce has been the closest in background to Zelman.
Gough Whitlam made one very bad appointment as Governor-General, Sir John Kerr, while Malcolm Fraser made two very good ones.
The Dismissal, 11 November 1975, was a turning point in how the Governor-General’s role was regarded.
Whitlam failed to grasp Kerr’s barely concealed fury at feeling condescended to, especially by Whitlam’s much repeated insistence that the Governor-General would act only on his advice.
John Kerr read the Australian Constitution very literally and convinced himself that the Governor-General’s reserve powers in s. 5 and s. 64 were still operative (although this view was, surprisingly, shared by Barwick, CJ and Mason, J.)
Zelman Cowen’s historical and philosophical approach was far more subtle and acute and he would have not acted pre-emptively, nor would he have concealed from his Prime Minister his discussions with the Palace and members of the High Court.
Even after his term of office as Governor-General ended, Sir Zelman never directly commented on the actions of his predecessor.
After the Dismissal, while Malcolm Fraser won the 1975 election handsomely, Kerr became an increasingly embarrassing remembrance of things past. By mid 1977 Fraser was steering Kerr towards the exit, especially as his public appearances were becoming more florid.
Ian Sinclair, former Leader of the National Party, was the MP for New England and observed Zelman Cowen at close quarters in his period as Vice Chancellor of the University of New England. He was a significant influence in convincing Malcolm Fraser to nominate Cowen as Governor-General.
As Governor-General, Cowen saw his role as providing ‘a touch of healing’, adopting the words of Jawaharlal Nehru. He and Anna Cowen were exemplary in their openness, empathy and accessibility.
But after five years in Yarralumla, the appeal of the dreaming spires proved irresistible and he returned to Oxford as Provost of Oriel College, also doubling up as Chairman of the UK Press Council and Pro Vice-Chancellor of Oxford.
Back in Australia, he chaired John Fairfax Holdings and was active on many other boards. As chairman of Fairfax he negotiated a charter of editorial independence and described it ‘as my most significant achievement’. (A Public Life, p. 368).
The Law School at Victoria University and the Music School at Monash are named for him and he played a valuable role in establishing the Australian National Academy of Music (ANAM).
He died 8 December 2011 at the age of 92, much honoured.
Zelman Cowen’s achievement was extraordinary – scholar, mentor, communicator, administrator, and – as Governor-General – healer.
He did nothing by halves. His enthusiasm and energy, and urge to spread it around, made him a force of nature.
At a time when many in the Australian community are losing faith in our institutions, we do well to honour the memory of our great achievers, who challenged us with important ideas and concepts, did not evade, conceal or infantilise.
Zelman Cowen gave Australia tremendous service and his centenary gives us much to think about.
The Hon Dr Barry Jones