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Prima facie

by Dr Sarah Engledow, 5 August 2019

The Right Honourable Sir Ninian Stephen KGAK GCMG GCVO KBE QC, 2006 by Rick Amor
The Right Honourable Sir Ninian Stephen KGAK GCMG GCVO KBE QC, 2006 by Rick Amor

Sir Ninian Stephen – amongst Australia’s preeminent figures, uniquely combining intelligence, elegance, eloquence, integrity and aptitude for household repairs – died in Melbourne in 2017. Rick Amor’s handsome portrait of him was displayed at his state funeral at St Paul’s Cathedral. It only took ten minutes to get it there; for it’s not in Canberra, but amongst dozens of portraits of other people displayed in the Peter O’Callaghan QC Portrait Gallery in Owen Dixon Chambers, in the legal district of the Melbourne CBD. If you’re not in the law game yourself, you might expect a gallery of barristers to be dreary – discreet, dour and dry. But nay! There are some cracking portraits in the O’Callaghan collection, of interesting people, by a few of the best twentieth century Australian painters as well as some of the hot names in Australian contemporary art.

The O’Callaghan Gallery came about because Amor’s painting of Stephen ignited the imagination of Peter Jopling QC, who’d served, early in his career, as Stephen’s associate. Jopling envisaged pulling all of the portraits out of the corridors and chambers occupied by the Victorian Bar and putting them together to see what kind of a group they’d make. A good one, as it turned out, but more were needed. As it happened, Jopling the associate had grown up to take silk and practice in commercial law by day, while serving, by night, on the boards of the Australian Centre for Contemporary Art and the Melbourne Humanities Foundation. While chair, too, of both the University of Melbourne’s Ian Potter Museum of Art and the Menzies Foundation, by 2017 he’d gained the necessary experience to establish a foundation to finance commissioned portraits of remarkable members of the Victorian Bar, many of whom had found top jobs outside chambers or courtroom.

Since 2017 the Peter O’Callaghan Foundation has commissioned fifteen portraits from very impressive artists, including Warwick Thornton, Brook Andrew, Louise Hearman and David Rosetzky. On a hot evening in March 2019, as High Court Chief Justice Susan Kiefel ac opened the Gallery extension – transforming the ground floor of Owen Dixon Chambers (East and West) into a professionally curated exhibition space, open to the public – I craned over the suited throng to see the portraits on display.

1The Honourable Diana Bryant AO QC, 2019 by Sally Ross. 2The Honourable Kenneth Hayne AC QC, 2017 by Bill Henson.

There was Diana Bryant AO QC, chief justice of the Family Court of Australia from 2004 until she reached the statutory retirement age of 70 in October 2017, in an elegant, linear oil portrait on wood by Sally Ross. Kenneth Hayne AC QC, former High Court judge, who as chair of the royal commission into Australia’s financial services industry had handed down his voluminous report in February 2019, looked self-deprecating and approachable in his photograph by Bill Henson. That night was just three weeks after Robert Richter QC had announced he was too distressed at the guilty verdict against George Pell to be able to represent him in an appeal. I’d recently read that Richter came to Melbourne as the child of displaced European Jews and was the first of his family to go to university.

Looking left, I saw the brilliant man in the crush – and looking right, I saw Martin Tighe’s dramatic depiction of him with Philip A Dunn QC, preparing to make a practical demonstration to a jury.

1The Honourable Susan Crennan AC QC, 2016 by Lewis Miller. 2Portrait of Susan Crennan, 2017 Lewis Miller.

I saw the real Susan Crennan AC QC – first female president of the Australian Bar Association and second-ever female judge of the High Court, renowned for her literary allusions – hurry past Lewis Miller’s powerful portrait of Susan Crennan AC QC, for which the National Portrait Gallery has a fine oil study.

The Portrait Gallery also has a preparatory drawing for the portrait of Sir Zelman Cowen AK GCMG GCVO PC QC. He and his sisters were the first generation in their family to attend university, too, but he would spend most of his life there. An outstanding student at Melbourne and Oxford, he lectured for many years at both. Between 1967 and 1977 he was vice chancellor of the University of New England and then the University of Queensland; after five years as Australia’s governor general he returned to Oxford in 1982 as provost (head) of Oriel College. Cowen relates in his autobiography, A Public Life, that Manning Clark, in his autobiography, The Quest for Grace, accused him of talking too much. ‘No doubt he was right’, Cowen said; ‘it was the expression of a huge enjoyment of the life I was leading.’ Key features of Andrew Sibley’s portrait are the sharp light; the width of Cowen’s trousers; and the faint coats of arms on the skirt of the chair, on a dais off which his feet hang. He seems very deeply in the seat; we imagine him straining to get up.

It wasn’t I who said ‘urbanity and charm are not qualities we associate with justices of the High Court’; it was Sir Anthony Mason AC, chief justice of Australia from 1972 to 1995. Some of the portraits in the O’Callaghan Gallery embody Mason’s generalisation. Perhaps it’s just the wigs; but they daunt. (Incidentally, online, the Hong Kong-based enterprise Legal Tailor makes a claim worth examining: ‘Our wigs are hand made from the hair of Mongolian ponies and Australian Brumbies … retrieved using natural methods of cutting, that in no way harm the animals.’) Other portraits pique such interest that, pacing round the Gallery, I began to choose my ideal dinner guests. I wouldn’t have to sit down with them. Sir Owen Dixon, Sir Douglas Menzies, Sir Ninian Stephen and Sir Edward Woodward could safely be left, I think, to chuckle amongst themselves.

Archibald Douglas ‘AD’ Colquhoun painted two arresting wiggy portraits in the O’Callaghan collection. Owen Dixon, depicted by Colquhoun in foaming lace and full-bottomed horsehair headpiece, was a barrister from 1910, took silk (was made King’s Counsel) twelve years later, and became a judge on the High Court in 1942. He remains the intellectual giant amongst Australian judges, and the man who brought Australia’s High Court international renown. Introducing Philip Ayers’ biography of Dixon, judge James Spigelman QC wrote that he had ‘a particular genius for reasoning and clarity of expression which placed him in the first rank, not only of lawyers but of philosophers’. Except for two years he spent in Washington DC during the Second World War, tightening Australia’s entwinement with the USA, Dixon was on the High Court for the rest of his career, and its chief justice for twelve years from 1952. In argument, Mason recalled, Dixon said little; he ‘confined himself to Delphic comments, conveying that sense of Olympian omniscience and detachment which is apparent when reading his judgements’.

The whole time Dixon was chief justice, his friend and former pupil, Robert Menzies, was prime minister. A prized product of the Victorian Bar himself, the PM unveiled Colquhoun’s portrait of Dixon to mark the opening of Owen Dixon Chambers in the spring of 1961. It seems, however, that everyone overlooked a self-portrait by Colquhoun in the portrait until Rick Amor remarked upon it in 2019. While probably painted in Colquhoun’s studio, Dixon looks as if he’s on his way to court. Surely those flat gloves are yet to be donned? At present, in a glass case in the O’Callaghan QC Portrait Gallery, the very tricorne, gloves and buckled pumps he wears on the canvas are reverently deployed.

Colquhoun also painted the Victorian Bar’s portrait of Sir Douglas Menzies, Robert’s attractive cousin. Ambitious and alert, he affects a miniature wig, one of its little tails flicking up, and a severe white jabot. Douglas Menzies, born, like Robert, in reasonably ordinary circumstances, won scholarships at the University of Melbourne. Mason relates that Douglas had quite a significant stutter and Robert felt he should, perhaps, advise him not to go to the Bar – but kept his misgivings quiet. Douglas, undeterred, proceeded to practice in commercial and taxation law, write Victorian Company Law and Practice, and lecture at the University of Melbourne. At the end of 1949 he took silk, and having appeared very often in the High Court over the 1950s, was appointed to its bench in 1958. Working alongside Dixon for six years, he recalled that differing from him was a course ‘always taken with hesitation and never without foreboding’. He said: ‘I never found Dixon held views about anything tentatively. When he spoke he spoke with authority. I have heard him spoken of as a modest man. I saw nothing of that side of his character except in his attitude to those to whom he gave his affection.’

Douglas Menzies was one of those to whom Dixon gave his affection. Despite a 21-year age difference, the men were friends for more than four decades and only died two years apart in the early 1970s. Still, Dixon didn’t feel that Menzies excelled as a judge. Mason explained that ‘Menzies was a dazzling advocate ... Engaging, agile of mind, witty and urbane, with a mastery of the case law relating to the case in hand, he was, I thought, the model that counsel should aspire to be.’ When Menzies died at the age of 67, not far from Michael Kirby at the annual dinner of the New South Wales Bar, friends felt the loss of a gladsome man. Mason remembered the laugh that always broke out before Menzies reached the punch line in the anecdote he was telling.

Dixon was an old widower when he died, and past laughing. In his end time, his son Franklin read him hundreds of books including the six volumes of Gibbon’s Decline and Fall of the Roman Empire. Robert Menzies, in hospital after a stroke, sent him a couple of messages on cassette tape, and he replied the same way. Ninian Stephen, while close to Douglas Menzies, had had very little to do with Dixon; but just after he was appointed to the High Court he paid his respects in a sad, short visit to Dixon’s neglected home.

The Amor portrait of Ninian Stephen looking refined, resolute and shrewd appears on the cover of the festschrift Sir Ninian Stephen: a tribute. A conventional portrait can tell us neither what a person’s done, nor what their voice was like; but Mason, again, tells us that ‘By common account, [Stephen] possessed the most mellifluous voice in the Australian legal world. The seductive quality of his voice added persuasion, even authority, to the argument which it advanced.’ Plausibly, the seductive quality of Stephen’s voice had something to do with the fact that by 1960 he and his beloved wife Valery had five daughters – named, Austen-like, Mary, Ann, Sarah, Jane and Elizabeth.

His attractiveness shines through his biography by Philip Ayres, Fortunate Voyager. Ayres says ‘[T]o be driven is thought a necessary ingredient of high achievement. Stephen’s character, on the contrary, was relaxed and nonchalant, although he had an enormous capacity for work.’ He describes how Stephen would typically be found in chambers ‘leaning back in his swivel chair, feet up on his desk, shoes off, holding his pipe or a lit cigarillo with his left hand while with his right he flicked the pages of a law report resting on his lap, calmly looking for whatever it was’. Mason, similarly, tells the story of the day the fire alarms went off in the old Supreme Court of Queensland, where Stephen was working in his customary way: ‘The firefighters burst into the chambers to find him serenely writing a judgement.’ In the long run, the building did burn down, but Stephen was out of town that day.

In the weeks before Christmas 1981 Stephen took a call from Malcolm Fraser, who presented him with the prospect of becoming governor general. Ayres’ book includes a transcript of the notes Stephen made, phone in hand: ‘Call on Queen ... Shares – declare.’ Delivering nearly a thousand speeches, Stephen held viceregal office for seven years. In 1985 he officiated at the handing back of Uluru to the Anangu traditional owners.

During the 1990s there could have been few people in Australia so conversant and engaged with the most pressing issues of the world as Sir Ninian Stephen. An essay in Sir Ninian Stephen: A tribute describes his tenure as Australia’s ambassador for the environment. In March 1991 he presciently declared that henceforth it would not be ‘business as usual’. Policymakers, he said, would have to make ‘essentially political and value judgements on behalf of the community’ as they were ‘compelled by scientists to become visionaries in ways totally unfamiliar in a democratic system predicated on plans or visions that rarely extended beyond a term of government’.

In the second half of 1991, Stephen was a facilitator at the second strand of peace talks in Northern Ireland. At the end of that year, he represented the Commonwealth as a ‘distinguished observer’ at the convention for a democratic South Africa. He was a member of the International Criminal Tribunal for the former Yugoslavia from 1993 to 1997. In 1998 he took on the frustrating task of analysing options for an international criminal court to try Khmer Rouge leaders in Cambodia. In 2001, when he was 77, he went on a three-week fact finding visit to Burma, investigating forced labour there for the UN’s International Labour Organisation. In 2003 he had to be talked out of going to Afghanistan. While much-occupied, too, with Australian affairs during this period, as a ‘compulsive handyman’ he was also deeply engaged in household projects and repairs.

When Stephen first went to the Victorian bar in 1952 he shared tiny chambers with two other barristers. One of them, Ivor Greenwood, had been Owen Dixon’s associate; twenty years later, as federal attorney general, he was to invite Stephen onto the High Court. The other was Edward ‘Ted’ Woodward. In the preface to Woodward’s autobiography, One Brief Interval, Stephen wrote that he’d known him for more than 50 years, as ‘barrister, judge, then in his more sinister role as head of ASIO, and subsequently as benign university chancellor’.

Like Ninian Stephen, Ted Woodward received an unexpected phone call. His was from Gough Whitlam, on 20 September 1975, which happened to be Woodward’s 25th wedding anniversary. While he joshed Whitlam about ringing to offer congratulations, he really ‘knew’ that Whitlam was calling to talk over the possibility of integrating Aboriginal laws and customs into Australia’s existing legal system. In fact, Whitlam had rung to invite Woodward to become head of ASIO. Lois Woodward was fearful; but his children – the Woodwards had seven – encouraged him to take the job. They wouldn’t have to move; until the mid-1980s the ASIO headquarters, like the High Court, were in Melbourne.

From boyhood, Sir Edward Woodward ac obe om wanted to be prime minister. He studied at the University of Melbourne in the late 1940s, and was admitted to the bar in 1951. In 1957, just as he might have entered politics, his father became Governor of New South Wales. Woodward junior, loath to cause embarrassment, shelved his plans. Remarkably for a man who ended up getting one of the last of the Imperial knighthoods – at age 52 – he claims he only twice applied for a position: first, to be promoted in the Citizen’s Military Force (the reserve army), for which he had to undertake an advancement course; and secondly, to become a Queen’s Counsel, which he was appointed in 1965. All Woodward’s other jobs came to him – and, he conceded, he got some ‘pretty good offers’.

Woodward had no more interest than most people of his time in Aboriginal land rights until 1968, when he was briefed by a small Melbourne solicitors’ firm to appear for the Yirrkala people in the Gove Land Rights Case, Milirrpum v Nabalco Pty Ltd and Commonwealth of Australia. Subsequently, Gough Whitlam invited him to head a royal commission into land rights in the Northern Territory. Recommendations of the Woodward Royal Commission of 1973-1974 laid the foundations for Northern Territory land rights legislation enacted by the Fraser government in 1976. Later, Woodward chaired the Aboriginal Justice Committee.

Woodward was head of ASIO in between two royal commissions into the organisation: the Hope Royal Commission on Intelligence and Security in 1974-1977, and its second iteration in 1983. For much of ASIO’s history, during which very close relationships with the CIA and MI5 were cultivated, its focus was on Soviet spies and communist front organisations. Some lawful leftists, both committed and occasional, felt persecuted. Labor minister Tom Uren claimed in 1979 that his phone had been tapped by ASIO for more than fifteen years, and Clyde Cameron believed he was under surveillance. Notoriously, Labor attorney general Lionel Murphy suspected ASIO of suppressing information on a murderous right-wing concern, the Croatian separatist group Ustaša. On 16 March 1973, in hours of darkness, the Commonwealth Police raided ASIO’s regional office in Canberra. They ransacked the Melbourne office the following morning – at two hours’ notice, as it turned out, because Murphy was delayed at Canberra Airport – but found no proof that ASIO had withheld information on the group at all. In due course, ASIO was mocked by the left for their lack of material on Ustaša. Interesting ulterior motives for the raids have been proposed ever since.

In Woodward’s absorbing, at times devastatingly intimate autobiography, the cover of which features a detail of the Pugh portrait, Woodward describes how it fell to him to rebuild ASIO in a time of unprecedented public interest in it. Inevitably, this meant restructuring, and introducing the ‘new accountability’ required by the evolving public service. He lamented the ‘almost complete absence of university graduates among the intelligence officers, and the complete failure to recruit women to such positions’, and stated he found some officers defective in intelligence or character. John Miller, a former intelligence officer, has a very different view of the skillset of the pre-Woodward staff. He writes that while most of them thought Woodward a fair and decent man, he made it ‘abundantly clear that serving ASIO officers were essentially a pack of outlaws ... the rank and file were regularly reminded of their previous indiscretions and the potential for their redeployment elsewhere.’ Adding to everyone’s stress was the forthcoming relocation of the agency to Canberra. In general, Woodward presided over a hopeful period for recruits to ASIO, and a miserable one for long-term employees.

A bomb exploded outside the Sydney Hilton, venue for the Commonwealth Heads of Government Meeting, in February 1978. The Hilton bombing – masterminded, it’s generally agreed, by a violent faction of an Indian cult called Ananda Marga – constituted Australia’s initiation into international terrorism. Malcolm Fraser felt more nervous about his own safety, and that of his family, than any previous prime minister, and his personal tensions informed policy. Meanwhile, some alleged that ASIO agents had planted the Hilton bomb themselves to underscore the organisation’s relevance. ASIO’s obsession with communism began to wane in this period. Anyway, Woodward jested that he had a working knowledge of Soviet activity because the guest bedroom in his mother’s tenth-floor flat in Woollahra looked straight down on electronic gadgetry on the roof of the adjoining Russian consulate. When he left ASIO, his staff gave him a pair of binoculars.

Woodward doubtless gained a huge body of general knowledge about Australia through his participation in seventeen royal commissions, of which he led four, including the 1982 Royal Commission into the Australian Meat Industry (in which Kenneth Hayne was an assisting barrister). Apart from that, he was a justice of the Federal Court of Australia from 1977 to 1990. Ninian Stephen had already accepted the position of chancellor of the University of Melbourne in late 1989 when he was named ambassador for the environment. From 1990 to 2001, Woodward held the keys to the chancellor’s office instead. Amongst his governance activities, which included sustained involvement in mental health initiatives, he was chairman of the Victorian Dried Fruits Board.

Figures in portraits by Clifton Pugh often feature steeply sloping shoulders, the lines of which extend into the suggestion of an egg shape within the rectangular composition. Typically, the face and hands appear more attentively rendered than other elements of the work, which are frequently gestural; there’s often an element of pattern somewhere. In conversation recently, Rick Amor observed that Pugh tended to make his sitters look wistful, no matter how forceful their personalities. The portrait of Woodward comprises all these elements and tendencies.

In her memoir of the period of her life she spent with the artist, Judith Pugh tells of Clifton Pugh’s meeting with Edward Woodward. The Pughs had tasked friends with introducing them to interesting people. Betty and Ray Marginson – the latter long-time vice-principal of the University of Melbourne and founder of the Potter Gallery – invited them for dinner with Ted and Lois Woodward. Judith had heard that Gough Whitlam had recently asked a Ted Woodward to become head of ASIO; but the couple they met at the Marginsons’ were so intelligent, pleasant and forthright that Judith initially thought they must have been matched with a different Ted Woodward. She became increasingly uneasy as Pugh, an inveterate leftie, alternately sentimental and pugnacious, made one of his characteristic generalisations, and the judge, unrelenting, backed him into a corner over it. Thanks to Woodward’s geniality, general laughter ensued, but I recognised the table tactic, with a wince. You get that when you have QCs to dine.

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