Legacy of a giant: the judge who reshaped Aussie law

Anthony Mason presided over one of the most adventurous and contentious High Courts in Australian history.

As chief justice from 1987 to 1995, Sir Anthony led a court that delivered landmark decisions and ended a long history of legalism by strictly adhering to precedent and the text of the constitution.

Instead, the court sought to interpret the law to take into account Australia’s changing social and economic conditions.

This was also a form of nationalism; it was a conscious decision to develop Australian common law rather than always follow English precedent.

This approach, particularly in the Mabo case and on free speech issues, was widely welcomed by some, including former Labor prime minister Gough Whitlam, who declared Sir Anthony Australia’s top chief justice.

To some, he was a judge who dangerously made laws rather than interpreted them, and in doing so usurped the role of parliament.

Whatever the merits of the competing claims, people began to speak of the “Masonic Court” more often than of his predecessor Harry Gibbs or his successor Gerard Brennan.

Sir Anthony disliked the term, noting the collegial structure of the court and the solid independence of the other six judges.

Moreover, early in his 23 years on the field (only Owen Dixon and Isaac Isaacs were there longer) he was more cautious.

Some commenters mentioned Mason 1 and Mason 2. It was probably Mason 1 who secretly advised Governor-General John Kerr on the dismissal of the Whitlam government.

Anthony Frank Mason, who died on Tuesday just shy of his 101st birthday, was born in Sydney on April 21, 1925.

The product of an upper-middle-class education with law in his genes, he attended the prestigious private school Sydney Grammar and the University of Sydney; his second tour of duty was interrupted by combat service in the RAAF.

His rise within the legal fraternity was rapid. At 25, he went to the pub with family friend Kenneth Asprey QC, a future NSW Supreme Court judge.

Mr. Asprey’s secretary was Patricia McQueen, who was being courted by a prominent lawyer.

But Silk recalled: “Then Master Mason came into my office and that was the end of the other man’s luck.”

The couple married in the same year and had two sons.

Sir Anthony specialized in capital and commercial law, developed his sharp tongue and sarcastic humor, and became the favorite young man of the future judge Garfield Barwick.

The judiciary loved him too, partly because he didn’t waste his time.

Years later, while on the bench, he asked, “Are there any other extraneous matters you would like to bring to our attention?” He discouraged long-termists with questions like these.

Perhaps it was a failed case that affected him the most.

In 1955, suburban newspaper owner Raymond Fitzpatrick was not allowed to appear in the House of Representatives due to charges of contempt of parliament.

The institution jailed Mr. Fitzpatrick and the journalist Frank Browne for three months without allowing their lawyers to speak on their behalf. The Supreme Court refused to intervene.

The case strengthened Sir Anthony’s resolve to defend individual rights against government abuses of power.

In 1964 he took silk and was appointed attorney general of the commonwealth.

In this role, he was the architect of the so-called new administrative law, including the Administrative Appeals Tribunal, the ombudsman, and freedom of information provisions.

In 1969 he went to the NSW Court of Appeal and three years later the McMahon government appointed him to the Supreme Court, where his former leader and mentor Sir Garfield served as chief justice for eight years.

In his early years he was relatively conservative and wrote a number of joint decisions with the chief justice, a jurist in the Dixon tradition.

In one, he wrote that there were very strong reasons why the court should not assume the law-making role and that it was neither a legislative body nor a law reform institution.

He played a role in Whitlam’s dismissal in 1975, although it was not revealed until 2012.

The then governor-general said that in a hitherto secret “archive” he had passed on to Sir Anthony all the emerging details of the crisis “for the purpose of strengthening myself for the action I was to take”.

The judge told Sir John that he had the power to dismiss Mr Whitlam, but he did not actually advocate such a course of action.

And he said he should have given the prime minister advance warning that he would be dismissed if he did not accept the election.

Sir Anthony gradually became a middle-ground judge between the extremes of Sir Garfield and Lionel Murphy.

By 1980 he had moved on to a liberal enough path that he had ordered the Fraser government to stop newspapers from publishing classified defense and foreign affairs material.

He said it was unacceptable to stop publishing information that allows the public to discuss, scrutinize and criticize the government’s actions.

A year before he became chief justice, he noted that the legal profession could have a subtle and formidable conservative influence.

Sir Anthony brought change to court.

He tried to write down his own decisions first, thus creating a reference point for others. He got rid of the wigs.

Towards the end of his term, he tried to explain the court to the public with his speeches and press releases.

It also introduced a video link system that would allow the court in Canberra to hear special leave applications from state capitals.

At first, the image in Canberra inexplicably switched from court to Bananas in Pajamas.

Daryl Williams, the future federal prosecutor on the edge of Perth, was said to have remarked that there was not much difference.

Sir Anthony believed that Australia was changing economically and socially in the late 1980s.

He recognized that the federal government needed powers to manage a globalizing economy, but he also knew that individual rights needed to be carefully protected.

The removal of appeals to the UK Privy Council was another effect.

He said this meant the Supreme Court was no longer obliged to follow English precedent and was free to develop Australian common law.

The Mabo decision in 1992, in which the court held that Australian common law recognized native title under certain circumstances, brought the upper judiciary fully into the public spotlight.

It revealed deep divisions over Aboriginal land rights; While some applauded the decision for rejecting discriminatory legal doctrine, others abused it for overstepping the court’s role.

In the Teoh case, the court said the federal government should have taken into account the interests of the plaintiff’s Australian-born children before deporting the Malaysian because Australia had ratified an international convention on children’s rights. The government did not like this.

The Dietrich case, in which the court ruled that a person accused of a serious crime needed legal representation, had implications for Legal Aid funding.

Perhaps most legally controversial were the free speech cases, in which the majority found that what the constitution said about representative government implied the right to free political expression.

This allowed the court to, among other things, invalidate a law banning the airing of political ads during the election campaign and expand protection against libel against public figures.

But there were limits. Despite dissenting views from William Deane and Mary Gaudron, the court permitted courts-martial for serious crimes that generally fell under the Crimes Act as long as there was a service connection.

The Mason court divided commentators.

Critics included future Supreme Court justice Ian Callinan, who felt the court was particularly intrusive in free speech cases.

Sir Garfield said these decisions threatened democracy and parliamentary government.

Academic lawyer Greg Craven blamed the judges, saying there was distrust between the court and the government.

On the other hand, Maurice Byers, the state’s attorney general and a leading Sydney lawyer, said the court was one of the most talented and courageous in Australian history.

Michael McHugh, who joined the court in 1989 and is not keen on creative interpretation, said Sir Anthony was a great judge.

Retiring from the court did not mean retirement for the prominent jurist.

He became a judge of the High Court of Fiji, the Solomon Islands Court of Appeal and the Hong Kong Court of Final Appeal.

He has also held various senior positions at Australian universities and lectured at Cambridge.