Sir Ninian Stephen
Australia’s Governor-general who worked for peace in Northern Ireland and justice in Bosnia
SIR NINIAN STEPHEN, KG, who has died aged 94, was a British-born judge who became Australia’s Governorgeneral, a founder member of the International War Crimes Tribunal, a member of the World Court and chairman of the Anglo-irish strand of the Northern Ireland peace process.
Modest, unstuffy, fair-minded and possessing “the most mellifluous voice in the Australian legal world”, he was, during a long “retirement”, one of the most influential figures in international law.
Being Australia’s 20th Governorgeneral – from 1982 to 1989 – could have been the pinnacle of Stephen’s career. But it was, instead, the prelude to two hectic decades trying alleged war criminals from Bosnia, Cambodia and Rwanda, serving as Australia’s ambassador for the Environment, participating in the end of apartheid and trying to halt abuses in Bangladesh and Burma.
Stephen’s tenure as governor-general was low-key, but importantly so. He took office just seven years after Sir John Kerr precipitated a constitutional crisis by sacking the Labor prime minister Gough Whitlam. Sir Zelman Cowen had begun the healing process, but there was still some way to go.
The Queen’s representative in Australia and titular commander of its armed forces, Stephen redefined the governor-general’s role as “to represent the Australian nation to the people of Australia”.
He gained the trust of both main parties, being the only governorgeneral to approve two simultaneous House and Senate dissolutions, for the Liberal prime minister Malcolm Fraser in 1983 and Labor’s Bob Hawke in 1987.
Stephen’s contact with politicians was not as intensive as between British prime ministers and the Sovereign; there is no weekly audience. Moreover, he did his utmost to avoid making speeches. When pressure subsequently grew for Australia to become a republic, some felt he could have done more to buttress the monarchy.
On judicial matters, Stephen had, recalled a fellow judge, “a completely open mind, uncluttered by any preconceptions.” He never regarded one side as totally “right” and the other as “wrong”; this added authority to his opinions, rated “perfect examples of knowledge and wisdom, crafted without pomposity”.
Stephen opened up Australian justice to the influence of international law, and on the World Court and the International War Crimes Tribunal set a high standard. The Italian president of the latter said that if he had seen Stephen in action before the court convened, he would have vacated the chair for him.
His involvement with Ulster began after Peter Brooke, John Major’s Northern Ireland Secretary, announced in 1991 the achievement of a “basis for formal talks”. A chairman was needed for Strand Two, covering cross-border relations; when Unionists would not accept Brooke and the Irish foreign minister as joint chairs, London and Dublin agreed on Stephen.
Unionists and nationalists (Sinn Fein were excluded) accepted him, but agreed on little else. Only in May 1992 did Brooke’s successor Patrick Mayhew feel there was any point in sending for him. Stephen confessed to “great doubt as to whether this was actually going to lead anywhere”, but that July he formally opened the talks, first in London and later at Stormont.
He worked exhaustively to quell a vitriolic crossfire between Ian Paisley’s Democratic Unionists and the mainly Catholic Social Democratic and Labour Party. But any momentum was lost by the Republic calling a general election; Stephen – who personally kept the Queen briefed – wound up the talks that November.
Despite compliments from all sides, he wondered if he had achieved everything. Yet Sinn Fein eventually came in from the cold and in 1998 the Good Friday Agreement formally ended the “Troubles”.
Ninian Martin Stephen was born at Nettlebed, Oxfordshire on June 15 1923. Until 2003, he believed that his father, who had been a First World War motorcycle courier, had died when Ninian was less than a year old from the effects of exposure to gas in the war.
In fact, Frederick Stephen had walked out on his wife Barbara and the infant Ninian and started a new life – and family – in Canada. Stephen met his half-sisters for the first time when he was in his eighties.
Barbara Stephen was a paid companion for an Australian heiress, Nina Mylne (after whom he was named), and Ninian had a peripatetic early childhood, with periods spent in Switzerland, France and Germany. In 1929 they moved to Edinburgh, where Nina Mylne paid for Ninian to be educated at George Watson’s College and Edinburgh Academy, before a spell in London (St Paul’s) and Switzerland (Chillon College, Montreux). In 1940, when Ninian was 16, the three of them moved to Australia and he completed his education at Scotch College, Melbourne.
In 2013, in Fortunate Voyager: The Worlds of Ninian Stephen, his
biographer, Philip Ayres commented on the impact of Stephen’s eclectic childhood (which included, when he was 15, a visit with Miss Mylne to see one of Hitler’s Nuremberg rallies). It was an education, wrote Ayres, “least likely to produce anyone attracted by regimentation and propaganda”.
In 1941 he joined the Australian army, serving in New Guinea and Borneo; he was demobilised a lieutenant in 1946. He completed his LLB at Melbourne University, then in 1951 joined the Victoria Bar. By 1966, when he took Silk, he was one of Australia’s leading constitutional and commercial lawyers.
Stephen was appointed to Victoria’s Supreme Court in 1970, and two years later to the High Court of Australia. Appointed by a Liberal (conservative) government but not an upholder of states’ rights, he occupied the moderate centre of the court.
His most celebrated decision came in a case brought by aborigines thwarted in their efforts to buy a cattle station on their ancestral lands by Sir Joh Bjelke-petersen, the controversial premier of Queensland. Stephen agreed with the majority that the refusal did not violate the Racial Discrimination Act, then declared that it did violate the undefined “external affairs power” of Australia’s constitution.
The aborigines won their case 4-3, but Bjelke-petersen foiled them by declaring the area a national park. A later Labor premier handed over part of it.
Stephen was appointed Governorgeneral of Australia in 1982 on the advice of Fraser. In 1987 the Queen extended his term on Hawke’s recommendation by 18 months; Hawke reckoned Stephen the ideal governorgeneral to preside over Australia’s bicentenary, and the timing freed the Labor heavyweight Bill Hayden to succeed him.
When Stephen stood down, Hawke named him Ambassador for the Environment, preparing the way for the 1992 Rio Earth Summit. Stephen created an NGO Forum to bring all interested – and conflicting – parties into the process, worked for a ban on mining in Antarctica, and did much of the spadework toward agreements on climate change and diversity. But he missed Rio because things were moving on Northern Ireland.
Stephen also, in 1991, presided over the conference that led to the creation of the Constitutional Centenary Foundation, which he chaired. The 10-year project aimed to find ways of breaking an apparent deadlock over attempts to amend Australia’s constitution.
When the argument over making Australia a republic blew up, Stephen declined to advise the Labor premier Paul Keating on the practicalities. He stayed out of the debate when the referendum was held in 1999 – the republicans suffering a narrow defeat – but his foundation did its own research on the role of a head of state.
In 1993 Stephen was appointed to the tribunal investigating atrocities in Yugoslavia and Rwanda. He arrived in The Hague to find no courtroom and no staff but soon put matters right, also playing a major part in drafting the court’s rules.
From the outset, he warned against prosecuting “small fry” when community leaders bore greater responsibility. Over his four-year term he demanded scrupulous fairness; in the very first trial – of the Bosnian Serb militia leader Dusko Tadic – he dissented from the majority view that witnesses could give evidence anonymously. Stephen argued that Tadic could not be guilty of breaching the Geneva Convention as the conflict was not international, but he was outvoted.
In the International Court of Justice, Stephen sat in a case involving Australia and Indonesia over exploiting the resources of the Timor Gap ocean shelf under a treaty of 1989. Portugal took Australia to the ICJ saying the treaty breached the East Timoreans’ right to self-determination. Stephen held that the Court had no locus to get involved, but rejected Australia’s argument that no legal dispute existed between itself and Portugal.
He served, from 1989 to 2002, on the Permanent Court of Arbitration at The Hague, helping give the body greater international credibility. He also headed the tribunal arbitrating investment claims under the North American Free Trade Agreement.
He was a legal adviser to the South African government during the transition from apartheid, and a Commonwealth observer at the first formal negotiation, in 1991, between the white parties and the African National Congress.
In 1994 Stephen was appointed a Commonwealth envoy to Bangladesh as unrest grew over how the country should be run pending elections. He proposed a compromise; the government accepted it, the opposition did not and after 39 days he flew home.
Stephen, in 1998-99, headed an Expert Group investigating with Cambodian leaders the scope for trying former senior Khmer Rouge figures. He proposed a new court set up by UN, with trials outside Cambodia. Hun Sen preferred to prosecute them under Cambodian law, and in 2002 the UN pulled out. A tribunal eventually began hearing cases in 2007.
In 2001 Stephen investigated for the International Labour Organisation claims that the Burmese junta was turning a blind eye to forced labour. He met not only the generals but the detained opposition leader Aung San Suu Kyi, and visited 120 villages up country.
He found some military commanders relying on forced labour and many people afraid to talk; no one had been prosecuted for abuses up to and including murder. Stephen returned in 2005 to assess progress, but the junta refused to meet him.
From 2000, he served on the ethics committee of the International Olympic Commission – he was chosen because of his famed lack of any interest in sport.
Sir Ninian Stephen was an honorary Bencher of Gray’s Inn, a liveryman of the Clothworkers’ Company, a commander of France’s Legion of Honour and a Knight of St John.
He was appointed KBE in 1972, a Privy Counsellor in 1979, GCVO, GCMG and a Knight of Australia in 1982, and a Knight of the Garter in 1994.
Ninian Stephen married Valerie Sinclair in 1949; they had five daughters.
Ninian Stephen, born June 15 1923, died October 29 2017