Speech by Justice Kenny

Justice Kenny 24 July 2003

In Honour of the Right Hon Sir Ninian Stephen KG AK GCMG GCVO KBE in Celebration of his 80th Birthday, Ormond College, University of Melbourne

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Last Saturday, when the Bombers met the Brisbane Lions, my eight-year old son bought the junior football record. In it, a footballer told his readers of the “10 things [that would] make [them] a star”: humility, humour, work ethic, self-discipline, open-mindedness, commitment and pride (amongst others). My son related this information to me. So far as I am aware, Sir Ninian has never been a football enthusiast, but, as his dissent in Adamson[1] shows, he could appreciate the importance of the sport for many Australians. As a judge of Australia’s highest Court, he always had the ability to stand where others stood. And as it so happens, he had these 10 attributes for football stardom and more.

Sir Ninian was appointed to the High Court on 1 March 1972. The High Court was very different then from now, but some constants remain.

The Court is a judge’s window on the world. Litigant, lawyer and bystander watch the judge at work. If they like what they see, they are confident. Great judges know this. Four hundred years ago, one Chief Justice[2] directed himself to “carefully lay aside my own passions …”, and to “be wholly intent upon the business I am about, remitting all other … thoughts as unseasonable …”. Sir Ninian had the same discipline. Invariably courteous, this judge was never too busy to listen, notwithstanding the huge workload he carried. He had the humility, which Felix Frankfurter said was essential for a judge. If he asked questions, it was to understand the range of the problem. In his Court too, there were the occasional drops of gentle humour to ease the sting of an application dismissed.

If the work of a judge is an art, as Learned Hand believed, then a judge’s work falls to be judged by the manner of its execution. A long time ago King Solomon taught that judicial wisdom is generally to be found in how a judge decides a case. The hallmark of the Stephen method was an open-minded inquiry, within established bounds.

One hot day in Sydney, the Court, then sitting in Darlinghurst, was considering an application for special leave. The accused had shot his victim on the banks of the Murray. Ward was at the top of the bank, and his victim was some 30 feet below. Jurisdiction over Ward turned upon the place of his victim’s death. Was it Victoria or New South Wales? Justice Stephen sent his emissaries, the High Court librarian and me, to the Mitchell Library, to gather together the historical record. His Honour later concluded “[d]espite errors and omissions, whether due to want of historical method or otherwise”, the record supplied “certain indications of legislative intent”.[3] These indications, and the history of the river, led him to find that the northern boundary of Victoria was the top of the southern bank of the river Murray. Ward had been wrongly tried in Victoria.

In this judgment, as in the great Seas and Submerged Lands Case, Sir Ninian married (as in all things) intelligent perspicacity, luminous style, and a cultivated mind.

It was not simply that he liked maps, water and boats. Other decisions disclosed his faith in the common law. In Barrell, he dissented in holding that, in a period of high inflation, a compensation award should not be subject to discount for present payment. He observed that “[t]o sacrifice the fundamental principle of proper compensation … by adhering to methods of assessment which, in changed circumstances, no longer obtain cannot be a proper outcome of the doctrine of precedent”.[4]

As a judge he cannot be neatly pigeonholed: neither conservative nor radical, he did not adhere to any particular ideology. He had one commitment - to dispense justice according to law. For him, this meant that he must apply a valid statute, “whatever its moral or ideological overtones”[5], and make his own conscientious assessment of what the law required.

For example, by virtue of Northern Territory planning regulations, which the Administrator in Council had made, little populated parts of the Cox Peninsula had became part of Darwin town and, therefore, beyond any traditional land claims. The general opinion was that the Crown’s representative was immune from examination for improper purpose. In an elegant judgment[6] Sir Ninian said, the contrary view “appears to me to be in accord with principle”, involving no intrusion by the courts into the legislative or executive sphere and ensuring that each remains within their limits of power. There ought be no distinction in this regard between the Crown’s representative and its Ministers, since in the exercise of statutory powers the former acts on the advice of the latter.

If his trust lay in the common law, his pride lay in the Constitution. The Constitution was to be construed as an instrument for government, which drew its power from its democratic origins and its practical orientation. In Uebergang[7], Justice Stephen, with whom Justice Mason joined, offered a way out of the morass of difficult distinctions that had plagued s 92, away from the narrow view favoured by the Chief Justice and towards an approach that took account of the actual operation of the law in its economic and social context.

Sir Ninian was a luminous star in the firmament of the High Court, though not, perhaps, on the football field. If, sometimes, in the quiet of my chambers, I think I hear the clang and thud of a wooden pipe on metal as some bin is beaten yet again to accept a weedy tribute, I remember him with fond gratitude, as a powerful example of what it should mean to be a judge, especially on the High Court of Australia.

[1] The Queen v Federal Court of Australia; Ex parte W.A. National Football League (1979) 143 CLR 190

[2] Sir Matthew Hale, quoted in Campbell “Lives of the Chief Justices of England” (London: John Murray, 1858), Vol 1, pp 547-8.

[3] Ward v The Queen (1980) 142 CLR 308, at 322.

[4] Pennant Hills Restaurants Pty Ltd v Barrell Insurances Pty Ltd (1981) 145 CLR 625, at 651.

[5] N. M. Stephen, “Judicial Independence – A Fragile Bastion” (1983) 13 MULR 334, at 336.

[6] The Queen v Toohey; Ex parte Northern Land Council (1981) 151 CLR 171, at 194 et seq.

[7] Uebergang v Australian Wheat Board (1980) 145 CLR 266.