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.
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.[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:
Cole v Whitfield (1988):a landmark decision on the meaning of Constitution section 92. The unanimous judgment observed (par. 7):
No provision of the Constitution has been the source of greater judicial concern or the subject of greater judicial effort than s.92. That notwithstanding, judicial exegesis of the section has yielded neither clarity of meaning nor certainty of operation. Over the years the Court has moved uneasily between one interpretation and another in its endeavours to solve the problems thrown up by the necessity to apply the very general language of the section to a wide variety of legislative and factual situations. Indeed, these shifts have been such as to make it difficult to speak of the section as having achieved a settled or accepted interpretation at any time since federation. The interpretation which came closest to achieving that degree of acceptance was that embodying the criterion of operation formula which we shall subsequently examine in some detail. That formula appeared to have the advantage of certainty, but that advantage proved to be illusory. Its disadvantage was that it was concerned only with the formal structure of an impugned law and ignored its real or substantive effect.
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.
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.[6]
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):[7] 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.[8]
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.
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.[citation needed]
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.[citation needed]
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]
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
Edward Gough Whitlam was the 21st prime minister of Australia, serving from 1972 to 1975. He held office as the leader of the Australian Labor Party (ALP), of which he was the longest-serving. He was notable for being the head of a reformist and socially progressive administration that ended with his removal as prime minister after controversially being dismissed by the governor-general of Australia, Sir John Kerr, at the climax of the 1975 constitutional crisis. Whitlam is the only Australian prime minister to have been removed from office by the governor-general.
The governor-general of Australia is the representative of the monarch of Australia, currently King Charles III, and performs many constitutional, ceremonial and community roles in the Australian political system. When performing these roles, the governor-general acts independently and is not the King's delegate or agent. The current governor-general is David Hurley, having been appointed on 1 July 2019. Samantha Mostyn has been chosen by Prime Minister Anthony Albanese to be the next governor-general, beginning 1 July 2024.
The 1975 Australian constitutional crisis, also known simply as the Dismissal, culminated on 11 November 1975 with the dismissal from office of the prime minister, Gough Whitlam of the Australian Labor Party (ALP), by Sir John Kerr, the Governor-General who then commissioned the leader of the Opposition, Malcolm Fraser of the Liberal Party, as prime minister. It has been described as the greatest political and constitutional crisis in Australian history.
Sir John Robert Kerr, was an Australian barrister and judge who served as the 18th governor-general of Australia, in office from 1974 to 1977. He is primarily known for his involvement in the 1975 constitutional crisis, which culminated in his decision to dismiss the incumbent prime minister Gough Whitlam and appoint Malcolm Fraser as his replacement, which led to unprecedented actions in Australian federal politics.
George Graham Winterton was an Australian academic specialising in Australian constitutional law. Winterton taught for 28 years at the University of New South Wales before taking up an appointment of Professor of Constitutional Law at the University of Sydney in 2004.
Duncan James Colquhoun Kerr, SC is a barrister. He is a former justice of the Federal Court of Australia. He also served as President of the Administrative Appeals Tribunal from 2012 to 2017.
Sir Garfield Edward John Barwick was an Australian judge who was the seventh and longest serving Chief Justice of Australia, in office from 1964 to 1981. He had earlier been a Liberal Party politician, serving as a minister in the Menzies government from 1958 to 1964.
Sir Harry Talbot Gibbs was Chief Justice of the High Court of Australia from 1981 to 1987 after serving as a member of the High Court between 1970 and 1981. He was known as one of Australia's leading federalist judges although he presided over the High Court when decisions such as Koowarta v Bjelke-Petersen in 1982 and Commonwealth v Tasmania expanded the powers of the Commonwealth at the expense of the states. Gibbs dissented from the majority verdict in both cases. On 3 August 2012, the Supreme Court of Queensland Library opened the Sir Harry Gibbs Legal Heritage Centre. It is the only legal heritage museum of its kind in Queensland and features a permanent exhibition dedicated to the life and legacy of Sir Harry Gibbs.
Sir David Iser Smith was an Australian public servant. He was the Official Secretary to the Governor-General of Australia between 1973 and 1990, in which capacity he served Sir Paul Hasluck, Sir John Kerr, Sir Zelman Cowen, Sir Ninian Stephen and Bill Hayden.
Sir Owen Dixon was an Australian judge and diplomat who served as the sixth Chief Justice of Australia. Many consider him to be Australia's most prominent jurist.
Kable v DPP, is a decision of the High Court of Australia. It is a significant case in Australian constitutional law.
Security of tenure is a term with multiple meanings according to jurisdiction. In Australia, it is used in political science to describe a constitutional or legal guarantee that a political office-holder cannot be removed from office except in exceptional and specified circumstances.
The Whitlam government was the federal executive government of Australia led by Prime Minister Gough Whitlam of the Australian Labor Party. The government commenced when Labor defeated the McMahon government at the 1972 federal election, ending a record 23 years of continuous Coalition government. It was terminated by Governor-General Sir John Kerr following the 1975 constitutional crisis and was succeeded by the Fraser government—the sole occasion in Australian history when an elected federal government was dismissed by the governor-general.
Sir Kenneth Sydney Jacobs KBE QC was an Australian judge who served as a Justice of the High Court of Australia.
Sir Nigel Hubert Bowen, was a Canadian-born Australian lawyer, politician and judge. He was a member of the Liberal Party and served in the House of Representatives from 1964 to 1973, representing the New South Wales seat of Parramatta. He held senior ministerial office in multiple Coalition governments, serving as Attorney-General, Minister for Education and Science (1969–1971), and Minister for Foreign Affairs (1971–1972). After the Coalition lost the 1972 election he was an unsuccessful candidate to replace William McMahon as Liberal leader, losing to Billy Snedden by a single vote. After leaving politics he served as the inaugural chief justice of the Federal Court of Australia (1976–1990).
Australia is a constitutional monarchy whose Sovereign also serves as Monarch of the United Kingdom, New Zealand, Canada and eleven other former dependencies of the United Kingdom including Papua New Guinea, which was formerly a dependency of Australia. These countries operate as independent nations, and are known as Commonwealth realms. The history of the Australian monarchy has involved a shifting relationship with both the monarch and also the British government.
The Constitution of Australia is the fundamental law that governs the political structure of Australia. It is a written constitution, that establishes the country as a federation under a constitutional monarchy governed with a parliamentary system. Its eight chapters sets down the structure and powers of the three constituent parts of the federal level of government: the Parliament, the executive government and the judicature.
The chief justice of Australia is the presiding justice of the High Court of Australia and the highest-ranking judicial officer in the Commonwealth of Australia. The incumbent is Stephen Gageler, since 6 November 2023.
Sir Maurice Hearne Byers was a noted Australian jurist and constitutional expert. He was the Commonwealth Solicitor-General from 1973 to 1983, in which capacity he played a role in the Gair Affair and the 1975 Australian constitutional crisis. He had an unmatched record of success in his appearances before the High Court of Australia, and he has been characterised as the finest lawyer never to have been appointed to the High Court.
The Palace letters, sometimes labelled as the Palace papers, were letters between Queen Elizabeth II, through her Private Secretary Martin Charteris, and Australian Governor-General Sir John Kerr around the time of the 1975 constitutional crisis, in which Kerr dismissed Australian Prime Minister Gough Whitlam. The phrase 'Palace letters' originated in the work of Australian historian and Whitlam biographer Professor Jenny Hocking, who successfully overturned the Queen's embargo over these letters, as a reference to Buckingham Palace, the official residence of Elizabeth in London.
↑ Williams, George; Brennan, Sean; Lynch, Andrew (2014). Blackshield and Williams Australian Constitutional Law and Theory (6ed.). Leichhardt, NSW: Federation Press. ISBN978-1-86287-918-8. chs 28–29
↑ Williams, George; Brennan, Sean; Lynch, Andrew (2014). Blackshield and Williams Australian Constitutional Law and Theory (6ed.). Leichhardt, NSW: Federation Press. pp. 887–891
↑ "Hong Kong Court of Final Appeal – Former Judges – Sir Anthony Frank MASON, GBM". 20 August 2015. Retrieved 3 June 2016.
↑ Susan Boyd (2003), "Australian judges at work internationally", 77 Australian Law Journal 303 at 305.
↑ The dismissal letter, Kerr's statement of reasons and Barwick's advice are reproduced in Williams, George; Brennan, Sean; Lynch, Andrew (2014). Blackshield and Williams Australian Constitutional Law and Theory (6ed.). Leichhardt, NSW: Federation Press. pp.361–65. ISBN978-1-86287-918-8.
Mason, Anthony (2007). Geoffrey Lindell (ed.). The Mason Papers: Selected Articles and Speeches by Sir Anthony Mason. Leichhardt, NSW: Federation P. ISBN978-1862876521.
Pierce, Jason L. (2006). Inside the Mason Court Revolution: the High Court of Australia Transformed. Durham, NC: Carolina Academic P. ISBN978-1-59460-061-6.
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