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Wednesday, 8 February 2012
Page: 392


Mr TURNBULL (Wentworth) (10:56): Zelman Cowen was born in 1919 on the day of Alfred Deakin's death. As many people have observed—Michael Kirby was the first to do so—it was as though Sir Zelman always felt that some spark of Deakin had entered his soul at the time he came into the world. This is entirely inconsistent with Jewish theology or indeed Christian theology; nonetheless, it is a wonderful idea. And it is a reminder of the way in which the threads of Zelman Cowen's life—very long life—are connected in tangible and intangible ways to so many other important figures in Australian history, not simply to Sir Alfred Deakin. It is an interesting point to note that Zelman Cowen was of course the second Jewish Governor-General of Australia, the first having been Sir Isaac Isaacs. Again, is it a coincidence that Sir Zelman had written a biography of Isaac Isaacs some years before? And is it a further coincidence that they died at exactly the same age? What were the chances of that? There are a lot of threads in Zelman Cowen's life that connect him to the history and the prominent figures of our country, some that are rather more intangible.

I first became aware of Zelman Cowen in a law library. When he was a young scholar at Oxford—he was Rhodes Scholar at Oxford University—he wrote a very important book on evidence, called Essays on the Law of Evidence, in partnership with another academic named Peter Carter, who did not go on to greatness in public life but remained a teacher at Oxford University. Indeed, when he was lecturing me and others in 1979 on evidence, I have no doubt that the notes he was lecturing to us from were the same he had used when he was a fellow with Zelman Cowen, given that the notes were so ancient and tattered and that moths were practically flying off the page every time he turned one over. That was my first encounter with Zelman Cowen in print. But when I was at Oxford I learnt an enormous amount about Zelman Cowen from my very good friend and fellow Rhodes Scholar Steven Skala, who was one of the handful of guests at our wedding in 1980. Steven had grown up in Brisbane and had, it seemed, effectively become part of the Cowen family. He spoke of Zelman with a warmth and an insight that made Lucy and me almost feel as though we knew him, even though I had not at that stage of my life met Zelman, other than through the pages of his evidence text—which is not the best way to get to know anyone, I might add. So Steven spoke of a man who was warm and was a mentor, although mentor is a rather chilly term—I think it was almost as if he was a man who was prepared to be almost like a father to so many other young people. This was a long time ago. It is well over 30 years ago that I am talking of Steven's discussions about Zelman Cowen with me. It is very touching that, much later, in much more recent years our colleague the member for Kooyong, Josh Frydenberg, had a similar filial mentor relationship with Zelman Cowen. Just as Zelman inspired and helped fashion the ideals and values of Steven he has clearly done the same with Josh, and it says a lot about the character of the man. Of course, there are so many other people on whom he had this impact.

He was, above all, a natural teacher. This is an important point because many teachers and scholars of Sir Zelman's rank find teaching students a little bit beneath them, and they prefer to leave that to their assistants and concentrate on research and giving grand lectures. But his enthusiasm and passion for other people, particularly for young people, marked him out as a really special teacher, somebody who had not simply the intellect, the charisma and the ability to communicate but also the compassion and the genuine human interest in others. That is remarkable. The great scholars of whom you could make those observations would form a relatively short list, in my experience.

He held many university positions. He was a fellow at Oxford. He later became the Dean of the Melbourne University Law School, the Vice-Chancellor at the University of Queensland and prior to that at Armidale, and later, after his Governor-Generalship, he was the Provost of Oriel College. He had a range of interests and they went well beyond the academic. But the big event in his life was when Malcolm Fraser invited him to become Governor-General of Australia. At the moment of his appointment he described it as the opportunity to deliver a touch of healing, and that is exactly what he did. Whatever the rights and wrongs of the 1975 dismissal, the actions by Sir John Kerr and the subsequent political controversy had brought the office of the Governor-General into a degree of bitter contention and political acrimony that it had not had before nor, I am happy to say, since. It required a very special person to take over from Sir John Kerr.

Sir Zelman Cowen was able to bring a remarkable intellect but also a depth of humanity and empathy with all Australians that enabled him to reach out and reconnect that office with the people in a manner that restored confidence in it. He had a genuine warmth. Again, we have had many great viceroys at the federal and the state level. You can think today of the extraordinary warmth of Marie Bashir, the Governor of New South Wales. They are of course two very different people, although both great scholars and academics in their own fields, but each of them had that degree of humanity, compassion and warmth. I dealt quite regularly with Sir Zelman Cowen during the debate over the Australian republic. I am pleased to see my colleague the member for Goldstein, Andrew Robb, here who was also on the side of justice and truth in that campaign. Zelman Cowen had been an advocate for an Australian republic for some time, well before the referendum campaign in 1999. He had the same view about what an Australian republic should look like—that is to say, it should have a president who has essentially the same powers as the Governor-General—but he was strongly opposed, as indeed I was and the member for Goldstein was, to the idea that the president should be directly elected by the people.

His argument in that regard was very well made on a number of occasions but most notably in the Hawke Lecture in 1999, which he entitled 'The guide for the perplexed', which is a very neat literary reference to Maimonides work on theology. Sometimes constitutional law is even more obscure than theology. His argument was essentially that you must, in looking at the office of head of state, first ask yourself what you want your head of state to do and be. If your job description is, 'We want somebody who is nonpolitical, nonpartisan, seen as impartial and not caught up in political controversy,' then it follows that electing them directly in a contested public election is unlikely to deliver a person who would fit those characteristics. Almost invariably—and this is true in every country where presidents are elected, whether they are executive presidents as in America or non-executive presidents as in the Republic of Ireland—you would end up with somebody who is a nominee of one of the major political parties. We shared exactly the same views about it. He intervened in the debate, as his friends Sir Ninian Stephen and Sir Anthony Mason intervened, and that was very important, not simply because jurists of that stature gave support and credibility to the proposition that we should make this change but because they were able to assure Australians that the change was not going to result in red revolution. Of course, our opponents were busily saying that would be the case and running all source of scare campaigns.

Zelman and I spoke on a number of occasions about one of the most egregious scare campaigns run by the no case in that referendum which was that, if Australia became a republic, we would have to leave the Commonwealth—that we could not be a member of the Commonwealth any longer. It beggars belief that anyone would make a claim like that, because the largest country in the Commonwealth, India, is in fact a republic. Zelman was able to deal with this repeatedly. I will quote from part of his Hawke lecture in 1999. He said:

I therefore support the Constitutional Convention's proposal that the President be elected by two-thirds of a joint sitting of the two Houses of federal Parliament. This is the proposal which will be put to the people in November this year, and I believe it can be safely recommended to our fellow citizens as giving us an Australian head of state without radical change to our parliamentary system.

Of course there are other aspects which merit attention. There is one I would like to mention in closing. It is the question of whether Australia's becoming a republic has any implications for Australia's continued membership of the Commonwealth.

…   …   …

The point can be simply put: Australia's becoming a republic is entirely consistent with our continuing membership of the Commonwealth. This point was established almost exactly fifty years ago, when the consequence of a member state of the Commonwealth becoming a republic was considered by the Commonwealth Prime Ministers meeting in London in 1949.

It was there resolved that India, which had put the matter before the Prime Ministers, might maintain membership of the Commonwealth as a republic, and that India would for its part recognize the monarch as Head of the Commonwealth ... The upshot is that the modern Commonwealth includes states which are republics—the majority—those which have their separate monarchs, and a substantial minority which retain the monarch, among these Australia.

Interestingly, as he goes on in his speech he acknowledges that, at the time that he was a young law lecturer and a fellow at Oxford, he and all constitutional lawyers of the day had been brought up to believe that fealty to the Crown was an integral part of being a member of the Commonwealth, as indeed it had been. He says that this change in 1949 came as somewhat of a surprise. He goes on to note:

I remember that soon after the decision of the Commonwealth Prime Ministers was made public, I - then a young Oxford law teacher - was sitting alongside Mr Attlee, who was then Prime Minister of the United Kingdom, and a party to the London agreement. A youthful purist (some might say pedant), I asked whether in view of all of the history, he had difficulty in reaching his conclusion. The most laconic of men, he answered directly to the point. 'No.' That was all.

Sir Zelman was very important in that debate. He did not win the referendum, of course, but his input was intelligent, sober, sane, measured, nonpolitical and capable of providing the sort of intelligent input into policy debates that we could perhaps do with a little bit more of from time to time.

His healing hand was not only felt in the Commonwealth of Australia. Our paths had crossed previously, in the early nineties, when, after a long series of corporate catastrophes, John Fairfax had gone into bankruptcy and my firm was representing the subordinated debt holders, the so-called 'junk bond' holders. We put together a group comprising us, the bond holders, Kerry Packer, Conrad Black and an American private equity fund to make a bid for the companies as the so-called Tourang consortium. It was eventually successful, but, given all the colourful characters involved in that bid, it was no surprise that just about everyone fell out with everyone else.

The takeover of John Fairfax was effected at the end of 1991, we got the deal done, and then the company was relisted in early 1992, and Zelman was the first chairman of the board. Chairing a board with all of those characters on it, or represented on it, would have been pretty challenging—although we did have as a director Laurence Street, who ultimately succeeded him as chairman.

Zelman and I crossed swords, in a gentle way, at the Fairfax AGM on 25 November 1992, which was the first AGM of John Fairfax since young Warwick had recklessly taken it over in 1987, with all of the disasters that followed. I was then a shareholder. My shareholding was not substantial in a companies act sense but, for me, it was a very substantial shareholding in the company. I had taken exception about a month or so before the meeting when I learnt that the directors were proposing to issue to themselves and to some executives options exercisable at $1, notwithstanding that the market price for the shares was $1.50. I had rung up the chief executive, Stephen Mulholland, to complain about this, and he had abused me rather colourfully. An hour later, he sent me some flowers, which I thought was sweet of him. I rang him back and he did the same thing again. The second time, the flowers did not come.

So we commenced proceedings in the Federal Court in which my father-in-law was my counsel and Lucy was the solicitor—so it was definitely a family exercise—and we were successful. Regrettably for Fairfax and Conrad Black, their solicitors had made a few errors in the notice of meeting and there were some other deficiencies, and they basically had to surrender. So the options exercisable at $1 were not issued. This was a big issue leading up to their shareholders' meeting, and Conrad Black and I spent much of the meeting shouting at each other: me from the floor of the opera theatre, I think, and Conrad on the stage. Needless to say, there were 800 shareholders there, most of whom were small shareholders, and you can imagine their sympathy was not with the directors giving themselves options at $1.

Over all of this Zelman managed somehow to keep order and he was able to radiate a degree of calm. At one point he suggested he might have to rule some remarks of mine as out of order, and we had a debate about whether he was trying to gag me or not. With his charm and my sense that I might lose the support of the room if I had a row with such a distinguished chairman, we managed to get through to the end of the meeting satisfactorily.

He did a very good job at Fairfax and, just as he had been as chairman of the press council of Britain, he was not unfamiliar with the media. It was a good example, in a very practical and turbulent sense, with 800 largely very unhappy shareholders and some pretty arrogant directors and executive on the part of Fairfax, Stephen Mulholland and Conrad Black in particular. It was a good example, I thought, of Zelman's ability to provide a calming influence not just in a speech to a gentlemanly or ladylike gathering or in a committee meeting but in a big hall.

He led a long and incredibly full life, a life of great accomplishment. He died laden with honours and loved by all. He obviously, however, cherished his family above all, as we all should—and in this respect Zelman Cowen is an example to all of us. It is common to say of people, 'He was a good family man' or 'She was a good mother and wife' and all of that. That is a good thing to say, but Zelman Cowen's family was his passion. In that sense, it was part of his Jewishness. Of course the Jews are not by any means the only people who love their families, but family life and the warmth of family life, the hamesha family life, the warm homeliness of it, is so central to Jewish life, to Jewish culture and to Sir Zelman Cowen.

Mourned by all, missed by all but admired for a lifetime of achievement, we salute Zelman Cowen and, as a parliament, offer our condolences to his widow, Lady Anna, and to their children, grandchildren and all of their family, some of whom, like Josh and Stephen Skala, were effectively informally adopted.