Sir Anthony Mason, a towering figure in Australian jurisprudence and a former Chief Justice of Australia, has passed away just weeks before his 101st birthday. Renowned for his incisive intellect, unwavering principles, and a remarkably sharp wit, Mason’s legal legacy has profoundly shaped the nation. His contributions span from the landmark recognition of native title to the establishment of a constitutional freedom of political communication, leaving an indelible mark on Australian law and society.
Born Anthony Frank Mason on April 21, 1925, in Sydney, his formative years were shaped by the hardships of the Great Depression, the political landscape of Premier Jack Lang, and the global upheaval of World War II. While his father envisioned a career in surveying for his son, his mother harboured ambitions for him to follow in the footsteps of his uncle, a barrister. This familial influence ultimately guided young Mason’s path from an early age.
However, the outbreak of war intervened. In January 1944, Mason enlisted in the Royal Australian Air Force, a courageous decision given the perilous life expectancy of air crews in active service. He underwent training as a navigator, first in Australia and subsequently in Canada. The war concluded before he had the opportunity to see active combat.
Upon his return to Sydney, Mason embarked on a distinguished academic journey, pursuing arts and law at the University of Sydney. He achieved first-class honours in both disciplines. His academic prowess extended to teaching, as he later spent five years lecturing in equity at the university. Among his students were future High Court Justices, including Mary Gaudron, who would go on to serve alongside him on the bench.
His true calling, however, lay in advocacy. Admitted to the bar in 1951, Mason quickly established a stellar career. In 1964, at the young age of 39, the Menzies government appointed him Solicitor-General of the Commonwealth. In this pivotal role, he provided critical legal counsel to the government on a range of significant issues, from the curtailment of Privy Council appeals to voting rights and the filling of casual Senate vacancies. He also represented the Commonwealth in numerous High Court cases.
A significant shift in his career occurred in 1969 when he was appointed as a judge of the NSW Supreme Court, serving on its Court of Appeal. His tenure there was brief, as he was appointed a Justice of the High Court of Australia in August 1972 by the McMahon government. At just 47, this appointment afforded him an extensive period to contribute to the nation’s highest court.
Initially, Mason was perceived as a conservative, “black-letter” lawyer, one who was not inclined towards radical reform or innovation. However, in a trajectory uncommon with advancing age, Mason’s judicial outlook evolved, becoming increasingly receptive to change. This transformation became particularly evident after the Hawke government appointed him Chief Justice of the High Court in 1987, a leadership role he embraced with significant impact.
Mason moved away from a rigid adherence to inconsistent or incoherent precedents. Instead, he championed the evolution of law grounded in fundamental principles, often informed by their historical context.
A prime illustration of this approach is the landmark case of Cole v Whitfield. Here, Mason successfully united the court in a unanimous judgment that clarified the meaning of Section 92 of the Constitution. This ruling overturned decades of confusing and contradictory interpretations regarding the freedom of interstate trade and commerce, replacing them with a revised test derived from the provision’s constitutional history. Mason himself cited this judgment as his most cherished achievement, a testament to the considerable effort involved and its success in bringing greater rationality and certainty to the law.
This evolution in his judicial philosophy drew criticism from those who favoured his earlier, more conservative “Mason 1” approach over what they perceived as a more progressive or activist “Mason 2.” Conversely, many viewed Mason as possessing the intellectual rigour to effect necessary reforms in a logical and principled manner. Mason himself believed that any lack of evolution in his views over three decades would have warranted greater scrutiny.
His judgment in the 1983 Franklin Dam case provided an early indication of his departure from judicial conservatism. In this case, he adopted a broad interpretation of the Commonwealth’s external affairs power, holding that Parliament could legislate to implement treaty obligations, even if those obligations related to domestic matters such as the construction of a dam in Tasmania.
The enactment of the Australia Acts in 1986, severing most of Australia’s remaining constitutional links with the United Kingdom, had a profound influence on the High Court. These Acts terminated Privy Council appeals, establishing the High Court as Australia’s ultimate court of appeal. This development encouraged Mason and his fellow Justices to cultivate a more distinctively Australian jurisprudence, one that could diverge from British precedents.
A staunch nationalist, Mason was instrumental in developing an implied “nationhood” power within the Constitution. This power enables the Commonwealth Parliament to legislate on matters of national significance, encompassing everything from the national flag and bicentennial celebrations to responses to national emergencies.
Mason also played a critical role in the recognition of an implied freedom of political communication within the Constitution, most notably in the Australian Capital Television case. This landmark decision imposed significant constraints on legislative attempts to restrict freedom of speech, a principle that continues to be a point of contention for governments today.
Perhaps the most widely recognised judgment of the Mason Court is the Mabo case, which for the first time in Australian history, recognised native title. The ramifications of this decision were immense for the nation and its impact continues to be felt and debated on the national stage.
The 50th anniversary of the dismissal of the Whitlam government last year reignited discussions about Mason’s role in providing informal advice to then-Governor-General Sir John Kerr. Mason had previously clarified his involvement, including advising Kerr that Mr. Whitlam should be forewarned before any dismissal. Ultimately, Kerr proceeded with his own course of action, a decision that remains a subject of considerable controversy.
Following his compulsory retirement from the High Court in 1995, Sir Anthony Mason continued to serve the public in a variety of distinguished capacities. He held the position of Chancellor of the University of New South Wales, chaired the council of the National Library, and served as a judge on the Supreme Court of Fiji and as President of the Court of Appeal of the Solomon Islands.
For many years, he also sat as a judge on the Hong Kong Court of Final Appeal. His judgments from that court, including a significant ruling on the common law of misconduct in public office, continue to be cited and relied upon today.
Even at his 100th birthday celebration, Sir Anthony Mason remained a figure of immense intellectual brilliance and wit, his eyes sparkling with a characteristic hint of mischief. He will be deeply missed by his devoted family, his former associates who considered him akin to family, and his esteemed colleagues and legal peers who held him in the highest regard.
