Australian Dictionary of Biography

Nigel Bowen, by W. Pedersen, 1966

National Archives of Australia, A1200:L59329

Sir Nigel Hubert Bowen (1911–1994), barrister, judge, and politician, was born on 26 May 1911 at Summerland, British Columbia, Canada, second of four sons of Otway Percival Bowen, apple farmer, and his wife Dorothy Joan, née King, both English-born. The family moved to Australia shortly after his birth, settling at Gunnedah in northern New South Wales where Otway ran a sheep farm. When drought ended this endeavour they moved to Sydney, and his father became an accountant. With financial assistance from an English aunt, Bowen was schooled in London for two years (1919–21) before returning to Australia to attend The King’s School, Parramatta (1922–27). In 1928 he won a public exhibition to the University of Sydney (BA, 1931; LLB, 1934). A keen sportsman, he played first-grade cricket and rugby. The study of law, he felt, suited him as ‘I was always debating’ (Bowen 1984, 1:5). He tutored the future Labor prime minister Gough Whitlam, who later acknowledged that ‘he [Bowen] took every care but does not accept any responsibility for my subsequent career’ (Aust. HOR 1973, 12).

Bowen started his career in law with the Sydney firm of Sly and Russell, and was admitted to the Bar in 1936, practising widely across fields that included divorce, probate, and inheritance. Following the outbreak of World War II he enlisted in the Citizen Military Forces in May 1941 and began full-time duty on 1 October, before joining the Australian Imperial Force as a lieutenant in August 1942. He trained in Australia with the 3rd Armoured Regiment, and in August 1943 became a member of the staff of the Allied Land Forces First Australian Army Headquarters in Brisbane. In December 1943 he was promoted to captain, and made adjutant and quartermaster of the 43rd Water Transport Operating Company (Landing Craft) (later second-in-command of the renamed 43rd Landing Craft Company), Royal Australian Engineers. From April 1944 this unit transported personnel and supplies along the New Guinea coast and took part in the seaborne assault on Dove Bay near Wewak in May 1945. Its ranks also included the Sydney newspaper baron (Sir) Frank Packer, and a future governor-general, (Sir) Ninian Stephen. Bowen commanded the 45th Port Landing Craft Company, also in New Guinea, from December 1945.

Demobilised in March 1946, Bowen returned to practising law. He was appointed editor of the Australian Law Journal in 1946, and filled this post with distinction until 1958. On 21 February 1947, at St Philip’s Anglican Church, Sydney, he married Eileen Cecily Mullins, an army nurse. In 1951 he worked from the Denman Chambers, from which Whitlam, and another future governor-general, (Sir) John Kerr, also practised. Bowen’s career prospered: he took silk in 1953, became president of the New South Wales Bar Association (1959–61), and was vice-president of the Law Council of Australia (1957–60).

By the early 1960s Bowen felt that he ‘had done about everything I could do’ (Bowen 1984, 1:2) as a barrister. He seized an opportunity to fulfil his long- standing interest in politics when in 1964 Sir Garfield Barwick resigned from the Federal seat of Parramatta to become chief justice of the High Court of Australia. Bowen won the seat as the Liberal Party candidate at a by-election in June. He was conspicuous for a backbencher, moving thirty-five amendments to the 1965 income tax bill, and advocating the establishment of a federal court. In December 1966 he was appointed attorney-general in the second ministry of Prime Minister Harold Holt.

Exhibiting a desire to make his mark as a reforming attorney-general, Bowen introduced procedural changes to overcome a backlog in patents applications, and legislated the Copyright Act 1968 to replace British law that had long been in force in Australia. Equally ambitious was his introduction of legislation to limit appeals to the Privy Council against High Court judgments, a change which he saw as ‘consistent with the growth of Australia as an independent nation’ (Aust. HOR 1967, 835). The Privy Council (Limitation of Appeals) Act 1968 was a major step towards the abolition of such appeals, including by States, culminating in the Australia Act 1986.

Bowen’s most enduring contribution as attorney-general was to lay the groundwork for a superior federal court to reduce the pressure of non-constitutional cases on the High Court. The idea had been promoted by Whitlam in the mid-1950s, and Barwick had received cabinet approval for legislation shortly before his High Court appointment. Bowen introduced the Commonwealth Superior Court bill to parliament in November 1968, but it lapsed the next year after opposition from State supreme courts, only becoming a reality when the Fraser government passed the legislation seven years later.

Despite such bold initiatives, Bowen’s political instincts were dubious. Although Prime Ministers (Sir) John Gorton and (Sir) William McMahon relied heavily on his legal and policy advice, Bowen acknowledged that he had ‘come into politics a bit late in life to ever become a good politician’ (Farmer 1971, 10). When in 1969, egged on by the deputy prime minister, (Sir) John McEwen, he authorised a raid on the home of the journalist Max Newton over leaked official documents, the Australian Capital Territory Supreme Court deemed the search warrant to be illegal on a technical point. Regardless of ‘in circumstantial terms a mountain of evidence’ (Bowen 1984, 8:26) against Newton, in November that year an embarrassed Gorton demoted Bowen to the science and education portfolio.

After two relatively uneventful years, Bowen was reinstated as attorney-general after McMahon toppled Gorton as prime minister in March 1971. The appointment was short-lived, as in August McMahon moved him to the foreign affairs portfolio. Again, Bowen showed a lack of political judgement on occasion. Shortly after becoming foreign minister, he told the American Australian Association in New York that ‘some of the things’ the United States government was doing in the trade and civil aviation fields were giving ‘considerable impetus and comfort’ (Canberra Times 1971, 4) to the anti-American left wing of the Labor Party. Whitlam, now Opposition leader, castigated an unrepentant Bowen for ‘fouling Australia’s nest from the non-partisan forum they provided for him’ (Solomon 1971, 1).

Despite this inauspicious start, Bowen showed greater awareness of the rapidly changing international environment than did many of his Liberal colleagues, especially McMahon. In his first speech to parliament as minister for foreign affairs, Bowen recognised that ‘the fixed alignments of the Cold War are giving place to a more fluid and more complex pattern of relationships among the major powers’ (Aust. HOR 1971, 208). His recognition of ‘the need to increase genuine understanding and knowledge between Australia … and our … Asian neighbours’ (Aust. HOR 1971, 213) included the People’s Republic of China. Although not as enthusiastic about the PRC’s re-entry into the international community as was the Opposition, he concluded privately that Australia should recognise Peking (Beijing) as soon as possible, but doubted ‘whether sufficient members of his own party … support the move’ (Doran and Lee 2002, 675).

Bowen was also at cross-purposes with McMahon over developments in southern Africa. He argued that the Rhodesia Information Centre in Sydney should be closed down, and pressed the case for this following the release of documents in April 1972 proving that the centre was financed by the white minority regime in Salisbury (Harare). This failed in the face of opposition from party colleagues, but he remained deeply critical of the centre’s distorted portrayal of life in Rhodesia (Zimbabwe).

On less polarising issues, Bowen had more success. He negotiated the seabed boundary between Australia and Indonesian West Timor, and galvanised international opinion against French nuclear testing in the Pacific, which he and the New Zealand prime minister Sir Keith Holyoake made the subject of a successful United Nations General Assembly resolution in November 1972. Bowen also sought the transfer of responsibility for Australia House in London from the Prime Minister’s Department to the foreign affairs portfolio, advising McMahon that with respect to the United Kingdom, ‘we have foreign policy considerations of considerable importance, just as we do with any other independent, i.e. foreign, country’ (Ashton, Bridge and Ward 2010, 881). Bowen reluctantly agreed to the prime minister’s retaining responsibility for ties to the Crown, including appointment of the Australian high commissioner in London, while the foreign affairs portfolio would manage appointment of career diplomats to the position of deputy high commissioner.

Such attempts to modernise Australian foreign policy made Bowen a potential alternative to McMahon as party leader in the lead-up to the 1972 Federal election. When this was suggested to the deputy Liberal leader Billy Snedden in early 1972, he was both mystified and chagrined: Bowen was ‘a very nice guy,’ but was ‘miscast as a politician, or as a government leader’ (Snedden and Schedvin 1990, 135). Nevertheless, after Whitlam won the election and McMahon resigned the party leadership, the party room was faced with a choice between Bowen and Snedden. On the third ballot, the scrutineers announced a tie. It was only after the returning officer admitted that he had forgotten to vote that another ballot was held, which Snedden won by a single vote.

Bowen had forfeited his possible appointment to the High Court to contest his seat at the 1972 election. Having retained Parramatta by a mere 359 votes, he retired from politics in July 1973 to become a judge of the New South Wales Court of Appeal, and later chief judge in Equity (1974–76). In 1976 he was appointed KBE, and the attorney-general, Robert Ellicott, made him chief justice of the new Federal Court of Australia, the peak of Bowen’s legal career. He worked hard to dispel continuing opposition to the court from critics in the States by emphasising the different functions of the Federal and State court systems. In 1979 he was responsible for producing the report Legal Education in New South Wales, and a long-overdue assessment, Public Duty and Private Interest which became the basis of a code of conduct for Federal parliamentarians, judicial and statutory office holders, and public servants.

Eileen died in 1983, and on 9 June 1984 Bowen married Ermyn Winifred Krippner, a former secondary school principal. In 1988 he was appointed AC, and the Law Council of Australia conferred on him a rarely awarded honorary membership. Two years later, in February 1990, Bowen’s fellow judges assembled in the Federal Court building in Sydney to commemorate his retirement. The court’s reputation as one of Australia’s leading superior courts had grown under his leadership. By 1990 it had thirty-two judges and exercised jurisdiction over almost a hundred Federal statutes. In May that year the University of Sydney conferred on him an honorary doctorate of laws.

The short and dapper Bowen was an oddity, if not a contradiction, in Australian politics. Quietly spoken, he had an uncanny knack of arousing strong feelings of resentment in those who regarded him as an imposter. Yet his refusal to ‘engage in the game of rough, backroom, passageway politics’ meant that ‘both sides accepted him and recognised his qualities’ (Ellicott 1995, 146). He died at Wahroonga on 27 September 1994, survived by Ermyn and the three daughters from his first marriage, Pamela, Vivian, and Diane, and was cremated. The Labor prime minister Paul Keating described him as ‘a true Australian,’ while the Opposition leader Alexander Downer characterised Bowen as having ‘belonged to a generation which saw serving the community and the country as … the greatest honour’ (Aust. HOR 1994, 1548, 1549). The foreign minister Gareth Evans, who had come to know Bowen while he himself was attorney-general in 1983–84, remembered him as ‘charming, gentlemanly and wholly constructive … never losing sight of the public policy goals that we were mutually trying to achieve’(Aust. Senate 1994, 1313). The Commonwealth Law Courts building in Canberra is named for him.