Sir Anthony Mason, a jurist who shaped Australia, dies at 100

Sir Anthony Mason, the former Chief Justice of Australia and one of Australia’s greatest and most influential jurists, has died just shy of his 101st birthday. He was a man of sharp mind, strong principles, and a wicked sense of humour. His jurisprudence shaped Australia, from the recognition of native title to a constitutional freedom of political communication. Anthony Frank Mason was born on April 21 1925, and grew up in Sydney during the Great Depression, the tumultuous era of Premier Jack Lang, and the second world war. His father was a surveyor who wanted his son to follow in his footsteps, but his mother was determined he would be a barrister, like his uncle. Young Mason agreed, and his course was set from an early age. But war intervened, and after leaving school, Mason joined the Royal Australian Air Force in January 1944. This was a courageous choice, because the life expectancy of air crews in action was poor. He trained first in Australia and then in Canada as a navigator. The war ended before he saw active service. Returning to Sydney, Mason studied arts and law at the University of Sydney, where he gained first-class honours in both. He also later taught equity at the university for five years, including to three students who were later to become Justices of the High Court. One of those, Mary Gaudron, served with him on the court.
But his vocation was to be a barrister, and he was called to the bar in 1951, enjoying a stellar career from very early on. In 1964, at the age of 39, the Menzies government appointed Mason solicitor-general of the Commonwealth. In that role he provided the government with legal advice on matters ranging from the restriction of Privy Council appeals to voting rights and casual Senate vacancies, and argued cases in the High Court.

In 1969 his path changed course when he was appointed as a judge of the NSW Supreme Court, serving on the Court of Appeal. But he was not there long. In August 1972, the McMahon government appointed him as a Justice of the High Court of Australia. He was still only 47, which gave him a long time to serve on the bench. At the time of his appointment, Mason was regarded as a conservative, black-letter lawyer – meaning he was not inclined towards reform or innovation. But unlike most people, who tend to grow more conservative as they age, Mason grew more receptive to change. This became particularly notable after the Hawke government appointed him as chief justice of the High Court in 1987, and he grew into the leadership role.
Mason rejected strict adherence to incoherent or inconsistent precedents. Instead, he favoured the development of the law based on fundamental principles, often rooted in their historical context. A notable example was Cole v Whitfield, where Mason united the court in a unanimous judgment on the meaning of section 92 of the Constitution. It rejected decades of infuriatingly inconsistent and bewildering judgements on the freedom of interstate trade and commerce, in favour of a revised test derived from the constitutional history of the provision. This is the judgement of which Mason was most proud, because of both the effort it took and its achievement in bringing greater rationality and certainty to the law. His change in judicial approach brought him the ire of those who preferred the conservative “Mason 1” to what they saw as a more progressive or activist “Mason 2”. Others, however, saw Mason as providing the intellectual heft to undertake necessary reforms in a logical and principled manner. Mason himself considered that he ought to have been the subject of greater criticism if he had not changed his views over 30 years.

Mason’s judgement in the Franklin Dam case in 1983, which gave a very broad interpretation to the Commonwealth’s external affairs power, was an early indicator that he was shedding his mantel of judicial conservatism. He held that the Commonwealth Parliament could rely on the external affairs power to legislate to implement treaty obligations, even though that legislation dealt with internal domestic matters, such as the building of a dam in Tasmania. A major influence on the High Court was the enactment of the Australia Acts in 1986, which cut off most of Australia’s ties with the United Kingdom. They terminated Privy Council appeals, making the High Court the ultimate court of appeal for Australia. This led Mason, and the rest of the court, to adopt a much more Australian-focused jurisprudence, which could depart from British precedents.

Mason, a nationalist, was instrumental in developing an implied “nationhood” power. This allows the Commonwealth parliament to legislate in relation to certain national matters, from the flag and the bicentenary through to national emergencies.
Mason was also critically important to the recognition of an implied freedom of political communication in the Constitution, in the Australian Capital Television case. It imposed constraints on legislative efforts to restrict freedom of speech, which governments continue to butt against today. Perhaps the best known case of the Mason Court was the Mabo case in which native title was recognised in Australia for the first time. Its consequences were profound for the nation and continue to play out on the national stage.

The 50th anniversary of the Whitlam dismissal last year brought forth much discussion of the role Mason played in providing informal advice to Sir John Kerr. Mason has explained his role, including his advice to Kerr that Whitlam should be given warning before any dismissal. Kerr took his own course, as controversial as it was. After his compulsory retirement from the High Court in 1995, Mason continued to serve the public in many roles. He was chancellor of the University of New South Wales, chairman of the council of the National Library, a judge of the Supreme Court of Fiji and president of the Court of Appeal of the Solomon Islands. For many years he was also a judge of the Hong Kong Court of Final Appeal. His jurisprudence on that court, such as his important judgement on the common law of misconduct in public office, continues to be relied on today. At his 100th birthday party, Sir Anthony Mason remained full of intellectual brilliance and wit, with a sparkle of mischief in his eyes. He will be sadly missed by his family, the associates who worked for him and felt like a second family to him, and his fellow judges and lawyers who respected him beyond measure.

Anne Twomey has received funding from the Australian Research Council and occasionally does consultancy work for Parliaments, Governments and inter-governmental bodies. She has known Sir Anthony since working in the High Court in the 1990s, and her husband was one of Sir Anthony's associates.