| Honorific-Prefix: | The Honourable |
| Sir Anthony Mason | |
| Nationality: | Australian |
| Order: | Chief Justice of Australia |
| Term Start: | 6 February 1987 |
| Term End: | 20 April 1995 |
| Appointer: | Sir Ninian Stephen |
| Nominator: | Bob Hawke |
| Predecessor: | Sir Harry Gibbs |
| Successor: | Sir Gerard Brennan |
| Office2: | Justice of the High Court of Australia |
| Term Start2: | 7 August 1972 |
| Term End2: | 6 February 1987 |
| Nominator2: | William McMahon |
| Appointer2: | Sir Paul Hasluck |
| Predecessor2: | Sir William Owen |
| Successor2: | Mary Gaudron |
| Office3: | Judge of the Supreme Court of New South Wales |
| Term Start3: | 1 May 1969 |
| Term End3: | 6 August 1972 |
| Nominator3: | Robert Askin |
| Appointer3: | Sir Roden Cutler |
| Predecessor3: | New Seat |
| Successor3: | Robert Hope |
| Birth Date: | 1925 4, df=y |
| Birth Place: | Sydney, Australia |
| Education: | University of Sydney |
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.
Raised in Sydney, Mason was a student at Sydney Grammar School. During World War II, he served in the Royal Australian Air Force, holding the rank of flying officer. After the war, Mason studied at the University of Sydney, graduating with the degrees of Bachelor of Arts and Bachelor of Laws. Mason articled at Clayton Utz, where he met his wife, Patricia.[1]
Mason was admitted to the New South Wales Bar. For five years he lectured in law at the University of Sydney, his students including three future High Court Justices, Mary Gaudron, William Gummow and Dyson Heydon. In November 1964, aged 39, Mason was announced as the new Solicitor-General of Australia, with an accompanying appointment as Queen's Counsel (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 of the Attorney-General's Department.[2] 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.[3] He served until 1969 and during this time contributed greatly to the development of the Commonwealth's administrative law system.
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.[4] He served on the Supreme Court until 1972, when he was appointed to the bench of the High Court of Australia[5] 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:
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).
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.[9] He was also President of the Court of Appeal of the Solomon Islands and was a judge on the Supreme Court of Fiji.[10]
In addition to those judicial roles, from 1994 to 1999 Mason served as Chancellor of the University of New South Wales.[11] From 1996 to 1997, he was a professor of legal science at the University of Cambridge and served as Chairman of the Council of National Library of Australia in 1997–1998.[12] He is also a visiting fellow at the Faculty of Law at the Australian National University.
See main article: 1975 Australian constitutional crisis.
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.[13] [14]
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.[13]
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 so.[13]
However, on 11 November 1975, Kerr dismissed Whitlam summarily. Had Kerr notified Whitlam of his intention, Whitlam could pre-empted his dismissal 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.[13]
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,[15] although without consulting him further a "very different" text was used.[13]
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.[13]
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.[13]
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.[13]