Sir Anthony Frank Mason
HonFAIB DistFRSN (born 21 April 1925) is an Australian judge who served as the ninth
Chief Justice of Australia, in office from 1987 to 1995. He was first appointed to the
High Court in 1972, having previously served on the
Supreme Court of New South Wales
The Supreme Court of New South Wales is the highest state court of the Australian State of New South Wales. It has unlimited jurisdiction within the state in civil matters, and hears the most serious criminal matters. Whilst the Supreme Court ...
.
Education
Raised in Sydney, Mason was a student at
Sydney Grammar School. During
World War II
World War II or the Second World War, often abbreviated as WWII or WW2, was a world war that lasted from 1939 to 1945. It involved the vast majority of the world's countries—including all of the great powers—forming two opposing ...
, he served in the
Royal Australian Air Force
"Through Adversity to the Stars"
, colours =
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, anniversaries = RAAF Anniversary Commemoration ...
, holding the rank of
Flying Officer. After the war, Mason studied at the
University of Sydney
The University of Sydney (USYD), also known as Sydney University, or informally Sydney Uni, is a public research university located in Sydney, Australia. Founded in 1850, it is the oldest university in Australia and is one of the country's ...
, graduating with the degrees of Bachelor of Arts and Bachelor of Laws. Mason
articled
Apprenticeship is a system for training a new generation of practitioners of a trade or profession with on-the-job training and often some accompanying study (classroom work and reading). Apprenticeships can also enable practitioners to gain a ...
at
Clayton Utz
Clayton Utz is an independent, top-tier Australian law firm headquartered in Sydney, Australia. Established in 1833, it is generally considered a leading law firm, and has been known as one of the " Big Six" Australian law firms. The firm is rec ...
, where he met his wife, Patricia.
Legal career
![Anthony Mason QC](https://upload.wikimedia.org/wikipedia/commons/4/43/Anthony_Mason_QC.jpg)
Mason was admitted to the New South Wales Bar. For five years he lectured in law at the
University of Sydney
The University of Sydney (USYD), also known as Sydney University, or informally Sydney Uni, is a public research university located in Sydney, Australia. Founded in 1850, it is the oldest university in Australia and is one of the country's ...
, his students including three future High Court Justices,
Mary Gaudron
Mary Genevieve Gaudron (born 5 January 1943), is an Australian lawyer and judge, who was the first female Justice of the High Court of Australia. She was the Solicitor-General of New South Wales from 1981 until 1987 before her appointment to ...
,
William Gummow
William Montague Charles Gummow (born 9 October 1942) is a former Justice of the High Court of Australia, the highest court in the Australian court hierarchy. He was appointed to the Court of Final Appeal of Hong Kong on 8 April 2013 as a non-p ...
and
Dyson Heydon
John Dyson Heydon (born 1 March 1943) is a former Australian judge and barrister who served on the High Court of Australia from 2003 to 2013 and the New South Wales Court of Appeal from 2000 to 2003, and previously served as Dean of the Sydney ...
. In November 1964, aged 39, Mason was announced as the new
Solicitor-General of Australia
The Solicitor-General of Australia is the country's second highest-ranking law officer, after the Attorney-General for Australia. The position is often known as the Commonwealth Solicitor-General in order to distinguish it from the state solicit ...
, with an accompanying appointment as
Queen's Counsel
In the United Kingdom and in some Commonwealth countries, a King's Counsel (post-nominal initials KC) during the reign of a king, or Queen's Counsel (post-nominal initials QC) during the reign of a queen, is a lawyer (usually a barrister o ...
(QC). He was the first person to serve as solicitor-general in a standalone capacity, as the office had previously been held by the
secretary
A secretary, administrative professional, administrative assistant, executive assistant, administrative officer, administrative support specialist, clerk, military assistant, management assistant, office secretary, or personal assistant is a ...
of the
Attorney-General's Department. In 1966 he appeared opposite future High Court colleague
William Deane
Sir William Patrick Deane (born 4 January 1931) is an Australian barrister and jurist who served as the 22nd governor-general of Australia, in office from 1996 to 2001. He was previously a Justice of the High Court of Australia from 1982 to 19 ...
, successfully arguing that the
Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council (JCPC) is the highest court of appeal for the Crown Dependencies, the British Overseas Territories, some Commonwealth countries and a few institutions in the United Kingdom. Established on 14 Aug ...
should reject an appeal from the High Court case of ''R v Anderson; Ex parte IPEC-Air Pty Ltd''. He served until 1969 and during this time contributed greatly to the development of the Commonwealth's
administrative law
Administrative law is the division of law that governs the activities of executive branch agencies of government. Administrative law concerns executive branch rule making (executive branch rules are generally referred to as "regulations"), ad ...
system.
Judicial career
In 1969, Mason was made a judge of the
Supreme Court of New South Wales
The Supreme Court of New South Wales is the highest state court of the Australian State of New South Wales. It has unlimited jurisdiction within the state in civil matters, and hears the most serious criminal matters. Whilst the Supreme Court ...
, where he sat as a member of the
Court of Appeal. In the same year he was appointed by the
Gorton Government to a three-year term on the council of the
Australian National University
The Australian National University (ANU) is a public research university located in Canberra, the capital of Australia. Its main campus in Acton encompasses seven teaching and research colleges, in addition to several national academies an ...
. He served on the Supreme Court until 1972, when he was appointed to the bench of the
High Court of Australia and received a knighthood (
KBE). After fifteen years on the High Court, and following the retirement of Sir
Harry Gibbs
Sir Harry Talbot Gibbs, (7 February 191725 June 2005) was Chief Justice of the High Court of Australia from 1981 to 1987 after serving as a member of the High Court between 1970 and 1981. He was known as one of Australia's leading federalist ...
, in 1987 Mason was appointed Chief Justice; he retired in 1995 on reaching the constitutionally mandatory retirement age of 70.
Mason had a significant influence over the High Court. Initially a conservative judge, his tenure as Chief Justice can be seen as the high-water mark of the movement away from the "strict legalism" which characterised the High Court under Sir
Owen Dixon. Mason was more flexible in his attitude to
precedent
A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great valu ...
than many other judges, viewing it more as a policy for consistency than something which would strictly coerce and constrain his decisions.
During the years of the "Mason Court", a variety of important cases were decided. These included:
*''
Cole v Whitfield
''Cole v Whitfield'',. is a decision of the High Court of Australia. At issue was the interpretation of section 92 of the Australian Constitution, a provision which relevantly states:... trade, commerce, and intercourse among the States, whet ...
'' (1988): a landmark decision on the meaning of
Constitution
A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed.
When these princ ...
section 92. The unanimous judgment observed (par. 7):
:For the first time, the Constitution was interpreted with systematic reference to records of the
constitutional conventions of the 1890s in which the text of the Constitution had been agreed (a good edition of the records had recently appeared). The Court also examined not only the "legal" operation of a law (its effects upon legal relations) but also its "practical" operation (its "real or substantive", i.e. social or economic, effects). However, the facts in ''Cole v Whitfield'' were relatively simple and the Court soon divided in attempts to apply the criterion of practical operation to more complex facts: ''
Bath v Alston Holdings'' (1988) and ''
Castlemaine Tooheys v South Australia'' (1990).
*''
Polyukhovich v Commonwealth'' (1991): Mason was in the 4:3 majority who decided, although for a variety of reasons, that retrospective war crimes legislation applying to events in Europe during World War II was a valid exercise of the external affairs power, Constitution section 51(xxix), and was consistent with the judicial power of the Commonwealth, Constitution ch III.
*''
Mabo v Queensland (No.2)'' (1992): the colonialist doctrine of ''
terra nullius
''Terra nullius'' (, plural ''terrae nullius'') is a Latin expression meaning " nobody's land".
It was a principle sometimes used in international law to justify claims that territory may be acquired by a state's occupation of it.
:
:
...
'' was superseded by introducing "
native title
Aboriginal title is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty under settler colonialism. The requirements of proof for the recognition of aboriginal title, ...
" into Australian law. The decision provoked allegations of "judicial activism", but was soon given statutory form in the
Native Title Act 1993 (Cth).
*''
Australian Capital Television v Commonwealth'' (1992) and (decided on the same day) ''
Nationwide News v Wills'' (1992): an important stage in the emergence of a constitutionally implied "freedom of political communication". The Mason Court continued this development until 1994, but it was not to receive unanimous support on the Court until after Mason's departure, in ''
Lange v Australian Broadcasting Corporation
''Lange v Australian Broadcasting Corporation''. is a High Court of Australia case that upheld the existence of an implied freedom of political communication in the Australian Constitution, but found that it did not necessarily provide a defen ...
'' (1997). This freedom was considered to be implicit in Constitution sections 7 and 24, which provide that the Commonwealth Parliament shall be "directly chosen by the people". However, the Court has remained reluctant to find further implied freedoms. It has also continued to understand such a "freedom" as a limitation upon legislative power and not, at least directly, a personal freedom or right.
*''
Dietrich v The Queen
''Dietrich v The Queen'' is a 1992 High Court of Australia constitutional case which established a de facto requirement that legal aid be provided to defendants in serious criminal trials. The Court determined an adjournment ought to be gran ...
'' (1992): an accused is entitled to publicly funded legal representation where that is necessary to a fair trial (Mason among the majority).
*''
Minister for Immigration and Ethnic Affairs v Teoh'' (1995): the high point in Australia of the idea of "legitimate expectation", which Mason favoured although in this and other cases other members of the Court criticised it for illogicality and fictionality. The decision provoked formal ministerial objections, but bills to reverse the precedent failed three times with the calling of a general election. The Court has since considerably reduced the scope of the idea.
After retiring from the High Court, in 1997 Mason was appointed one of the Non-Permanent Judges of the
Hong Kong Court of Final Appeal
The Hong Kong Court of Final Appeal (HKCFA or CFA) is the final appellate court of Hong Kong. It was established on 1 July 1997, upon the establishment of the Hong Kong Special Administrative Region, replacing the Judicial Committee of t ...
, a position that he held until 2015. He was also President of the Court of Appeal of the
Solomon Islands
Solomon Islands is an island country consisting of six major islands and over 900 smaller islands in Oceania, to the east of Papua New Guinea and north-west of Vanuatu. It has a land area of , and a population of approx. 700,000. Its capit ...
and was a judge on the
Supreme Court of Fiji
The Supreme Court of Fiji is one of three courts established by the now-defunct Chapter 9 of the Constitution, the others being the High Court and the Court of Appeal. The Supreme Court is declared to be ''"the final appellate court of the S ...
.
In addition to those judicial roles, from 1994 to 1999 Mason served as Chancellor of the
University of New South Wales
The University of New South Wales (UNSW), also known as UNSW Sydney, is a public research university based in Sydney, New South Wales, Australia. It is one of the founding members of Group of Eight, a coalition of Australian research-intensiv ...
. From 1996 to 1997, he was a professor of legal science at the
University of Cambridge
The University of Cambridge is a public collegiate research university in Cambridge, England. Founded in 1209 and granted a royal charter by Henry III in 1231, Cambridge is the world's third oldest surviving university and one of its most pr ...
and served as Chairman of the Council of National Library of Australia in 1997–1998. He is also a visiting fellow at the Faculty of Law at the
Australian National University
The Australian National University (ANU) is a public research university located in Canberra, the capital of Australia. Its main campus in Acton encompasses seven teaching and research colleges, in addition to several national academies an ...
.
Role in the Dismissal
On 11 November 1975,
Governor-General Sir
John Kerr summoned Prime Minister
Gough Whitlam
Edward Gough Whitlam (11 July 191621 October 2014) was the 21st prime minister of Australia, serving from 1972 to 1975. The longest-serving federal leader of the Australian Labor Party (ALP) from 1967 to 1977, he was notable for being the ...
to his residence and, without warning, handed him a letter dismissing him, together with his ministers, from office. Kerr's 1978 autobiography mentions that he had discussed this possibility with Mason but gives no detail.
In 2012, statements in some of Kerr's papers, released by the
National Archives, following a request by Professor
Jenny Hocking were given publicity in her biography, ''Gough Whitlam: His Time''. Kerr confirms that in 1975 Mason had advised him on whether the
Constitution
A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed.
When these princ ...
allows a Governor-General to dismiss a Prime Minister who is unable to obtain supply. Kerr claims that Mason, as well as Chief Justice Sir
Garfield Barwick
Sir Garfield Edward John Barwick, (22 June 190313 July 1997) was an Australian judge who was the seventh and longest serving Chief Justice of Australia, in office from 1964 to 1981. He had earlier been a Liberal Party of Australia, Liberal Part ...
, had advised him that there is such power and that he had followed that advice.
In response, on 27 August 2012 Mason published his own account in major newspapers.
Mason's account challenges the accuracy and completeness of Kerr's account in several respects, but most importantly on his advice regarding power to dismiss a Prime Minister. He confirms that as early as August 1975 he had advised Kerr, as a "close friend", that the Governor-General does have such power. He confirms, as Kerr's autobiography had stated although Kerr's papers give a different impression, that he had only advised Kerr on the available courses of action and had not advised him to pursue the course of dismissal.
[
Mason also stresses that he had warned Kerr on several occasions and as late as 9 November 1975 that the Governor-General could exercise that power only after notifying the Prime Minister that he would do so if the Prime Minister did not agree to holding a general election. On 19 November, Mason says, he asked Kerr to ensure that his papers contained that warning, but Kerr did not do that.][
However, on 11 November 1975 Kerr dismissed Whitlam summarily. Had Kerr notified Whitlam of his intention, Whitlam could have got in first by advising the Queen to dismiss Kerr. Mason confirms that Kerr was well aware of the danger of what Kerr referred to as a "race to the Palace". Indeed, Mason says, Kerr had told him that Whitlam had once raised with him the possibility of such a situation.][
Mason recounts that, in August or soon after in 1975, Kerr had been told by a member of the Prime Minister's department that Whitlam was of the view that, if Kerr were to indicate that he might dismiss Whitlam, Whitlam would advise the Queen to dismiss Kerr. Mason states that at Kerr's request on 9 November he drafted a letter dismissing Whitlam, although without consulting him further a "very different" text was used.][
Mason says that he had declined to provide Kerr with written advice on his powers, particularly because it would be inappropriate for a Justice of the High Court to do so without consulting the Chief Justice. However, at Kerr's request Chief Justice Barwick did provide written advice, which was that he did have power to dismiss a Prime Minister who could not obtain supply and was unwilling to either resign or agree to a general election.][
Mason states that he saw that advice and expressed broad agreement with it. He says that, when Kerr asked him whether, if the matter came to the High Court, Barwick should sit, he had said that he did not know. He says that Kerr did not ask him what his own position would be in that event. But he recalls that he had thought it unlikely that the matter would come to the High Court (which had also been Barwick's advice to Kerr).][
Mason's statement ends:
:Despite my disagreement with Sir John’s account of events and his decision not to warn the prime minister, I consider that Sir John was subjected to unjustified vilification for making the decision which he made. I consider and have always considered that Sir John acted consistently with his duty except in so far as he had a duty to warn the prime minister of his intended action and he did not do so.][
]
Honours
* Commander of the Order of the British Empire
The Most Excellent Order of the British Empire is a British order of chivalry, rewarding contributions to the arts and sciences, work with charitable and welfare organisations,
and public service outside the civil service. It was established o ...
(CBE), 1969 Queen's Birthday Honours
* Knight Commander of the Order of the British Empire (KBE), 22 September 1972
* Companion of the Order of Australia
The Order of Australia is an honour that recognises Australian citizens and other persons for outstanding achievement and service. It was established on 14 February 1975 by Elizabeth II, Queen of Australia, on the advice of the Australian Gove ...
(AC), 1988 Australia Day Honours
* Centenary Medal, 1 January 2001
* Grand Bauhinia Medal
The Grand Bauhinia Medal () is the highest award under the Hong Kong honours and awards system; it is to recognise the selected person's lifelong and highly significant contribution to the well-being of Hong Kong. The awardee is entitled to the ...
(GBM), 1 July 2013
* Honorary doctorates in law from ANU, Deakin, Griffith
Griffith may refer to:
People
* Griffith (name)
* Griffith (surname)
* Griffith (given name)
Places Antarctica
* Mount Griffith, Ross Dependency
* Griffith Peak (Antarctica), Marie Byrd Land
* Griffith Glacier, Marie Byrd Land
* Griffith Rid ...
, Melbourne
Melbourne ( ; Boonwurrung/Woiwurrung: ''Narrm'' or ''Naarm'') is the capital and most populous city of the Australian state of Victoria, and the second-most populous city in both Australia and Oceania. Its name generally refers to a met ...
, Monash, Sydney, Hong Kong
Hong Kong ( (US) or (UK); , ), officially the Hong Kong Special Administrative Region of the People's Republic of China (abbr. Hong Kong SAR or HKSAR), is a city and special administrative region of China on the eastern Pearl River Delta i ...
, Oxford
Oxford () is a city in England. It is the county town and only city of Oxfordshire. In 2020, its population was estimated at 151,584. It is north-west of London, south-east of Birmingham and north-east of Bristol. The city is home to the ...
and UNSW universities.
* Invested as an Honorary Fellow (HonFAIB) of the Australian Institute of Building (AIB), by the Honourable Sir Peter Cosgrove AK MC( Retd) Governor General of Australia and the AIB's National President adjunct Professor Paul Heather AM FAIB FRSN November 2017 at Western Sydney University in the presence of the Chancellor Professor Peter Shergold AC FRSN.
* In 2018 elected as a Fellow of the Royal Society of New South Wales
* In 2019 inducted as a Distinguished Fellow of the Royal Society of New South Wales
* Elected Life Fellow of the Australian Academy of Law The Australian Academy of Law (AAL) is a permanent, non-government organisation devoted to the advancement of the discipline of law. According to its Constitution, the Australian Academy of Law comprises individuals of exceptional distinction from a ...
.
References
Further reading
*
*
External links
* Sir Gerard Brennan
Sir Francis Gerard Brennan (22 May 1928 – 1 June 2022) was an Australian lawyer and jurist who served as the 10th Chief Justice of Australia. As a judge in the High Court of Australia, he wrote the lead judgement on the Mabo decision, whi ...
â€
A Tribute to The Hon. Sir Anthony Mason, AC KBE
* Justice Michael McHugh â€
The Constitutional Jurisprudence of the High Court: 1989–2004
{{DEFAULTSORT:Mason, Anthony
1925 births
Living people
Chief justices of Australia
Justices of the High Court of Australia
Judges of the Supreme Court of New South Wales
Fellows of the Australian Academy of Law
Solicitors-General of Australia
Australian King's Counsel
Supreme Court of Fiji justices
Australian judges on the courts of Fiji
Australian judges on the courts of Hong Kong
Justices of the Court of Final Appeal (Hong Kong)
Australian judges on the courts of the Solomon Islands
Chancellors of the University of New South Wales
University of Sydney alumni
People educated at Sydney Grammar School
Companions of the Order of Australia
Australian Knights Commander of the Order of the British Empire
1975 Australian constitutional crisis
Royal Australian Air Force personnel of World War II
Royal Australian Air Force officers