Sir Anthony Frank Mason (21 April 1925 – 17 March 2026) was 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. He had also served as a non-permanent judge of the Court of Final Appeal of Hong Kong from 1997 to 2015.

Early life and education

Mason was born in Sydney on 21 April 1925. He was one of four children born to Eileen () and Frank Maxwell Mason. His father, a World War I veteran and Military Cross recipient, was a registered surveyor who developed a substantial practice on the North Shore of Sydney. He served terms as president of the New South Wales bodies for surveying and town planning.

He received his early education at Kincoppal, Elizabeth Bay, where he was an acquaintance of future federal attorney-general Tom Hughes. He went on to attend Sydney Grammar School and became interested in law through his uncle Harold Mason, a prominent Sydney barrister who served briefly in state parliament. Mason's father divorced his mother in 1936, on the grounds she had engaged in "habitual drunkenness and neglect of domestic duties". His father later remarried to Elvira Clare "Bobbie" Wood. He was discharged in September 1945, at which time he was stationed at the 2nd Aircrew Graduate Training School in Calgary.

After leaving the military, Mason enrolled at the University of Sydney to study arts and law, graduating with first-class honours. In 1966 he appeared opposite future High Court colleague William Deane, successfully arguing that the Judicial Committee of the Privy Council 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 system.

Judicial career

In 1969, Mason was made a judge of the Supreme Court of New South Wales, 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. 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, 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 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 (1988): a landmark decision on the meaning of Constitution 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 was superseded by introducing "native 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 (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 (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, a position that he held until 2015. He was also President of the Court of Appeal of the Solomon Islands and was a judge on the Supreme Court of Fiji.

In addition to those judicial roles, from 1994 to 1999 Mason served as Chancellor of the University of New South Wales. From 1996 to 1997, he was a professor of legal science at the University of Cambridge and served as Chairman of the National Library of Australia Council from 1995 to 1998. He was also a visiting fellow at the Faculty of Law at the Australian National University.

Role in the dismissal of Prime Minister Gough Whitlam

On 11 November 1975, Governor-General Sir John Kerr summoned Prime Minister Gough Whitlam to his residence and, without warning, handed him a letter dismissing him from office, together with his ministers. Kerr's 1978 autobiography mentions that he had discussed that 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 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, 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 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. although without consulting him further a "very different" text was used.

Honours

  • Commander of the Order of the British Empire (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 (AC), 1988 Australia Day Honours
  • Centenary Medal, 1 January 2001
  • Grand Bauhinia Medal (GBM), 1 July 2013
  • Honorary doctorates in law from ANU, Deakin, Griffith, Melbourne, Monash, Sydney, Hong Kong, Oxford 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.

References

Further reading

  • Sir Gerard Brennan – A Tribute to The Hon. Sir Anthony Mason, AC KBE
  • Justice Michael McHugh – The Constitutional Jurisprudence of the High Court: 1989–2004