Australian Dictionary of Biography

Kenneth William Asprey (1905–1993), judge and taxation system reviewer, was born on 15 July 1905 at Marrickville, Sydney, second of three sons of New South Wales-born parents William Asprey, musician, and his wife Elizabeth, née Palmer. Ken was educated at Newington College. He was awarded a public exhibition at the University of Sydney (BA, 1926; LLB, 1929), where he played first-grade cricket and won a Blue for the sport. After graduating—with honours in law—he joined the solicitors Minter, Simpson, & Co. He was admitted to practise as a solicitor in June 1929. On 4 March 1935 at St Philip’s Church of England, Sydney, he married Margaret Elizabeth (Betty) Gosling (d. 1977), the daughter of the solicitor J. E. Gosling.

By 1934 Asprey had become a partner in the firm of Baldick, Asprey, and Co. and was developing a wide practice in taxation and commercial law. His father was a musician, and he represented interests in the entertainment business. Pursuing his interest in the theatre and films, he visited and worked in London, New York, and Hollywood in the mid-1930s. He met the studio chiefs Louis B. Mayer and Sam Goldwyn, and, among many others, the actors (Sir) Noël Coward and Shirley Temple, experiences which added to the fund of anecdotes with which he later entertained his friends and colleagues. After negotiating a reconstruction of J. C. Williamson Ltd’s businesses, he became chairman of J. C. Williamson Theatres Ltd in May 1938. He was also for a time chairman of Australian and New Zealand Theatres Ltd. Later he would represent the nascent television industry.

In 1939 Asprey was admitted to the Bar of New South Wales. From Denman Chambers in Phillip Street he rapidly established a large practice in commercial law, equity, common law, and taxation. He took silk in 1952 and began his judicial career with an appointment in October 1962 as an acting justice of the Supreme Court of New South Wales. In June 1963 he was appointed to that bench. On its commencement on 1 January 1966 he became a judge of the New South Wales Court of Appeal.

Asprey was highly regarded as a solicitor, barrister, and then judge. Among those who read with him were (Sir) Anthony Mason, who became chief justice of the High Court of Australia; (Sir) Ken Jacobs, later a judge of the High Court of Australia; the leading barrister and Federal attorney-general Tom Hughes; and Gordon Samuels and Frank Hutley, who became colleagues on the bench of the New South Wales Court of Appeal. Mason remembered Asprey’s ‘rare ability’ and ‘excellent mind’ (1994, 84), and thought his ‘judicial performance was exemplary’ not least because Asprey was ‘at heart an actor and he acted the part of both a trial judge and an appellate judge splendidly’ (2008, 843). More than a decade after his death, Asprey’s rulings were still being quoted in cases before the courts. One of his judicial contributions, recalled Mason, was his insistence on a contextual approach to contract interpretation, against the ‘plain meaning’ approach then predominant. He was vindicated by later interpretations, Mason commenting in 2008 that this shift was ‘one of the defining changes in judge-made law in the last half-century’ (843).

Tall and imposing, Asprey was a lively, good-humoured, and sharp raconteur. Familiarly known in Phillip Street as ‘Aspro Jack’ or ‘The Grand Cham’ (Mason 2008, 843), he was known for the care with which he prepared for cross-examinations, striding around his office, his firm belief being that the first question would usually be decisive. ‘Conferences with him,’ Mason recalled, ‘invariably involved stories of his endless successes, whether … as a deadly cross-examiner,’ a cricketer, or ‘an astute adviser’ to businessmen; tales about his cross-examinations ‘generally featured the words “When I rose to cross-examine, the witness went white with terror”’ (2008, 843).

While prominent among his colleagues as a lawyer and judge, Asprey became best known to the public for his work on two government inquiries. In 1967 he was one of three judges appointed to the second royal commission into the sinking in 1964 of the destroyer HMAS Voyager. This second commission exonerated Captain John Robertson, the commander of the aircraft carrier HMAS Melbourne, which had collided with and sunk the escorting Voyager. On 14 August 1972 he assumed the chairmanship of the Commonwealth Taxation Review Committee set up by the Liberal and Country parties’ coalition government. ‘I am no stranger to matters of taxation,’ he confidently told the press. ‘During my time at the Bar, I handled quite a few cases and appeared both for and against the Taxation Commission’ (Sydney Morning Herald 1972, 1). What became known as the Asprey Committee held its first meeting on 14 September, shortly before the election that brought the Australian Labor Party to power. The new Whitlam government confirmed that the committee’s work should continue.

The terms of reference required the committee to investigate the structure and functioning of the Commonwealth tax system and propose improvements, bearing in mind the need for revenue to match spending, the effective use of resources, fairness, and the avoidance of undue complexity. The committee was not specifically asked to look at the spending side of the budget, or into State and local government taxation, though it did so.

When tabled by the acting treasurer, Bill Hayden, on 27 May 1975, the full report exceeded 500 pages, with a companion volume of commissioned studies. Its major findings had been published earlier, however, in a preliminary report delivered on 1 June 1974, and released on budget night, 17 September. Asprey and his fellow committee members made a number of major proposals in the interim report, which were little changed in the final version. They argued that Australia should introduce a value-added or goods and services tax to replace the inefficient wholesale sales tax. The committee reported that ‘the lack of tax on capital gains is seriously inequitable’ (Taxation Review Committee 1974, 39), and suggested that the absence of a fringe benefits tax was also undermining the fairness of the personal income tax system. Looking at company tax, Asprey and his colleagues recommended a form of imputation that would recognise company tax already paid on dividends disbursed to Australian shareholders.

The most important of the recommendations had been advanced in a 1964 article by the only economist on the committee, David Bensusan-Butt. The committee presented the proposals clearly, without unnecessary technical detail, with supporting facts drawn from Australian experience, and with arguments designed to appeal to the middle ground of Australian politics. Though the government of Malcolm Fraser largely ignored the report, the major tax reforms in Australia over the following twenty-five years built on the Asprey report. In 1985 the treasurer, Paul Keating, proposed, in a Treasury white paper, all the major recommendations of the report—a 12.5 percent broad-based consumption tax, a capital gains tax, dividend imputation, and a fringe benefits tax. While a goods and services tax (GST) did not proceed at that stage, the other three measures were legislated, together with cuts to personal income tax rates. The government of John Howard eventually introduced a GST in 2000.

Not all lines of thought in the committee’s report, however, were successful. It had called for a national system of death and gift duties. Instead, the existing duties were scrapped. Asprey and his colleagues also thought that once the GST was in place it would be possible gradually to increase the rate, and to reduce income tax rates. Though often suggested, to date there has been no agreement among politicians over raising the rate and the related necessity of either compensating or not compensating low-income earners.

Asprey had retired from the bench in 1975. Recognising his services to the government, in 1977 he was appointed CMG. After the death of his first wife he would marry Mary Dent Rutty, née Snow, daughter of the retailer and United Australia Party stalwart Sir Sydney Snow, on 10 September 1977 at St Andrew’s Uniting Church, Longueville. Survived by his wife, and the two daughters of his first marriage, he died on 28 October 1993 at Wahroonga, and was cremated. His daughter Sally and her husband Robert Stitt QC gave his vast collection of colonial and modern law texts to the University of Sydney Law School in 2011.