Obituaries Australia

His was a distinguished career in the law, part of a life-long commitment to his profession. But Justice Robert Marsden Hope, who has died at the age of 80, was a many-sided man who made a significant contribution to Australia’s public, intellectual and cultural life.

His wide-ranging interests took in art, music, theatre, Australia’s heritage and education, including Aboriginal education and training.

He was liberal-minded by instinct and outlook and remained so throughout his life. A lively, humorous man, he was a great raconteur with a rich fund of wonderful stories reflecting his abiding interest in people.

However, he is probably best remembered as the QC and former NSW Court of Appeal judge who headed two landmark royal commissions into Australia’s security and intelligence services. These led to major reforms, including changed structural, procedural and administrative arrangements which made the Australian Security and Intelligence Organisation (ASIO) more accountable and enabled greater control to be exercised over its operations. Another result was the establishment of a parliamentary committee in a watchdog role and the appointment of an inspector-general of security. It was on his recommendation, too, despite some opposition in Defence quarters, that the Office of National Assessments (ONA), based on a Canadian model, was set up to broaden the scope of intelligence gathering and improve the evaluation process.

In even more controversial circumstances he presided over three other security-related inquiries  - the Coombe-Ivanoff affair, protective security arising from the Sydney Hilton hotel bombing and the Melbourne Sheraton Hotel break-in by the special operation section of  Australia’s  Secret Intelligence Service (ASIS).

His role in the Coombe-Ivanoff matter attracted a fair amount of hostile press exposure and proved somewhat of a bugbear for him. He had expected it to take about six weeks, but it ran for six months, The difficulty, Hope found, was in confining the inquiry to what he had been asked to examine - whether ministers were justified in deciding not to have any dealings with Coombe as a lobbyist without him being given some opportunity to respond to the ban that had been imposed. In the event, he found that ministers were not legally bound to see Coombe or any other lobbyist.

The ASIS exercise, which went gravely wrong at the Sheraton Hotel, also presented difficulties as did many of ASIO’s practices which Hope sought to have corrected. But he remained convinced that such agencies had a valuable function to perform in a democracy, even though they could, at times, be inimitable of civil liberties. He remained impressed and convinced of the importance to Australia’s national interests of such much-criticised facilities as Pine Gap. To such inquiries he brought his breadth of interests, fair-mindedness and common sense, plus a concern for people’s fundamental rights.

His upbringing probably had a good deal to do with him being imbued with these qualities. Born in Sydney on 29 July 1919, he was one of four children of Sydney Natt Hope and his wife Pearl Blyth (nee James). His father, a woolbuyer, worked for the then well-known wool firm, and stock and station agents, Goldsborough Mort, and often travelled by Cobb and Co. coaches in doing his business rounds of pastoral properties. His mother was very gregarious, keen on music, with a great interest in magic and spiritualism. She had a wide circle of friends, among whom was Billy Hughes and his wife, Dame Mary, and she mixed throughout Sydney’s Bohemian society.

The family moved around a good deal as he was growing up, but he attended public school at Lindfield before going as a day boy to Sydney Church of England Grammar School (Shore). Though he did well academically he reacted against the high degree of conformity demanded at the school and he took little part in organised sport. On leaving school, the young Hope wanted to do an arts degree. But his career path had really been set when, at age four, his mother took him to a phrenologist. This gentleman felt the bumps on the youngster’s head and declared that he would develop an aptitude for the law.

Bowing to his parents’ quiet insistence, he began law studies at Sydney University in 1937 under professor Sir John Peden, who made a strong impression upon him as he did upon many of Hope’s generation of law students. But Hope’s studies were interrupted in May 1940. As World War II took a turn for the worse, he decided to enlist. He joined the AIF’s 7th division as a private and was drafted to an artillery unit. He served in the Middle East and Papua New Guinea, rising to the rank of bombardier (corporal). In the Middle East he went down with malaria and got it again in Papua New Guinea as well as scrub typhus. As a result he was sent back to Australia where he spent six months being treated at Concord Repatriation Hospital.

While in hospital he completed his law studies and qualified LLB with first-class honours. For a time he lectured in property and divorce at Sydney University law school. As with many of the university’s law students who served in the forces, Hope came under the notice of Margaret Dalrymple-Hay, the law faculty’s clerk and librarian. Influential in the placement of graduates and articled clerks, Hope believed her influence helped him get his lectureship and, when he began his practice, to get work from the Legal Services Bureau. He was admitted to the Bar in 1945, married in December that year to June Carter, of a Barraba, NSW, grazing family, and took up practice in 1946.

His practice gradually improved and in 1960 he became involved, as a junior, in his first Privy Council case. In December that year he took silk and, as a QC, built up a solid practice in the commercial and appellant fields, appearing before the High Court in a range of cases. Elevation to the Bench followed in 1969 when he was appointed a judge of the NSW Supreme Court, becoming a judge of the NSW Court of Appeal in 1972. He held these appointments until 1989 before becoming chairman of the NSW Law Reform Commission 1990-93.

In 1973 Hope was proposed to fill a vacancy on the High Court arising from the retirement of Sir Edward McTiernan. Hope was believed to have the ‘inside running’, but in the event the appointment went to his close friend and colleague on the NSW Supreme Court Bench Ken Jacobs, whom Hope understood to have had the backing of the then Prime Minister, Gough Whitlam.

Hope was never to regret missing out on the High Court place as other areas of endeavour, which he found of absorbing interest, opened up for him. Before the royal commissions into the security and intelligence agencies came up, Hope was appointed by the Whitlam government to head a royal commission into the national estate. In later life, he was to rate the national estate inquiry, his first, as the best he had ever done and said that he had been greatly helped by poet Judith Wright.

His first security services inquiry came in 1974 when the Whitlam government appointed him as royal commissioner to look into the activities of ASIO, ASIS, the Defence Signals Division (DSD) and the Defence Intelligence Organisation (DIO). He found ASIO very much in Cold-War mode, when anyone who was “slightly pink” was bound to be given and adverse security appraisal. With ASIO, he found much that needed to be overhauled. The main thrust of his recommendations was to enable more control to be exercised over ASIO’s operations while enhancing its effectiveness. When, in 1983, Prime Minister Hawke asked him to review ASIO’s performance since the earlier inquiry, he found it had ‘improved itself quite a lot’, but recommended more scope for individuals to obtain reviews of adverse decisions affecting them and improved ministerial and independent scrutiny. He also found instances where misleading information had been passed on and regarded as ‘highly questionable’ the way ASIO kept its files. Nevertheless, he felt the work of such an agency was essential to Australia’s national interest.

In relation to the Hilton bombing, Hope was asked to head an investigation into protective security, not the bombing itself which remained a police matter. He found there were many inadequacies in Australia’s protective security measures and that closer co-ordination was needed to make them effective. Overall, the inquiry left him feeling unsatisfied and believing that ‘technicalities got in the way of reality’.

During his early law career, Hope became involved with the Council of Civil Liberties, of which he was president from 1967 to 1969. In this role, he took a close interest in the way NSW police treated Vietnam student protesters whose civil rights, he believed, were being infringed. He sought to have the regulations changed and wrote a booklet on what people should do upon being arrested. However, the Civil Liberties people became ‘aggrieved’ with Hope over his role in the security inquiries and some of his recommendations. Though he kept his membership of the Civil Liberties Council, he came to feel that it lost much of its effectiveness when, from being apolitical, it became dominated by the Left. He resigned as president of the council on being made a judge.

His role in education began with Sydney University and his law lectureship. On giving this up, he was elected by convocation to the university senate in 1970, serving until 1975. This involved him in some spirited discussions and disputes - a notable one with the redoubtable Dame Leonie Kramer over the introduction of women’s studies as part of the philosophy course. He had another interesting encounter with Dame Leonie in later life when, in May 1993, he was given an honorary degree by his old university. He probably made history for being the first law graduate of the university to pick up an honorary Doctor of Laws degree along with his LLB degree which, though awarded, had never been presented owing to his absence on active service. He received both - one 55 years late at the age of 73 - from Dame Leonie as chancellor of Sydney University. Hope remembered her as having greeted him with just one comment, ‘Who would have thought it would have come to this’.

It was in 1975 that he was approached by Max Willis, who had recently retired as president of the NSW Legislative Council to become chancellor of Wollongong University. Though he took it on with some misgivings, he found it immensely stimulating and rewarding. So much so that he stayed a record 22 years, only retiring in 1997. Working with successive vice-chancellors, but particularly Ken McKinnon, he presided over the university’s major development phase, during which the student body grew from some 1500 to about 12,000 and a campus was established in Dubai. His steady guidance was a factor not only in the university’s physical growth but also in building up its academic reputation.

His other educational interest was Tranby, an Aboriginal education and training organisation based in the Sydney suburb of Glebe. He maintained an active role over many years as a board member of Tranby, which concentrates on preparing Aborigines for tertiary education.

The demands of his professional life never deterred him from pursuing other interests. Thus, at the invitation of Ken Tribe, the then chairman, he joined the governing body of Musica Viva and later served as a member of its national council. Over the years, he had similar involvement with the Nimrod and Old Tote theatres, serving terms as chairman of each company. He was also chairman from 1978 to 1993 of the NSW Heritage Council. He also had an involvement with the Kuringai Old Peoples’ Welfare Association.

He was not just a nominal member of all these bodies, but used his wide experience to contribute in every way possible. Nor did these activities preclude him from spending time with friends and colleagues of the law fraternity. As well as Ken Jacobs, he had been particularly close to John Kerr who sought his opinion on whether he should take up Gough Whitlam’s offer of the Governor-Generalship. Hope advised against it but Kerr, lured by what he considered to be the power of the position, went ahead anyway.

Hope was proud of being a direct descendant of the Reverend Samuel Marsden, second chaplain of the fledgling NSW colony, despite his “flogging parson” reputation. He also held in high regard his uncle the Anglican priest Fr John Hope who, as a rector of Sydney’s Christ Church St Lawrence, befriended and often gave haven to the well-known Sydney eccentric of the time, Bea Miles. He was equally appreciative of the achievements of his cousin, the historian Manning Clark, yet not one to gloss over his faults and shortcomings.

In his approach to the law, he sought to be creative and to give a down-to-earth human face to it. Law reform was always a matter of concern to him and, at the end of his career, he still saw plenty of scope for it. He believed there was room for improvement in the way judges make decisions. He advocated a collegiate system - judges coming together to discuss the case they have to decide upon when sitting on the Appeals Bench, rather than each going off to write his or her own judgment and then handing it to the President. He deplored the fact that where they considered it necessary judges could not call witnesses and that an administrative appeals tribunal had not been set up in NSW.

In 1977 he was made a Companion of the Order of St Michael and St George (CMG) and in 1989 a Companion of the Order of Australia (AC).

Though he probably came to know more about Australia’s secret intelligence network than anyone else in the country, and was once dubbed ‘Godfather to the spies’, he never sought to promote himself as an expert on security matters. What probably gave him as much personal satisfaction as anything else was his work in building up Wollongong University as a highly respected tertiary institution. In his quiet, unassuming way he must be rated one of the nation’s more notable achievers.

He is survived by his wife, June, two daughters (Deborah  and Elizabeth) and a son, John.

Robert Marsden Hope born July 29, 1919; died October 12, 1999.