Anthony Mason (judge)

Last updated

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).

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. [16] He was also President of the Court of Appeal of the Solomon Islands and was a judge on the Supreme Court of Fiji. [17]

In addition to those judicial roles, from 1994 to 1999 Mason served as Chancellor of the University of New South Wales. [18] 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. [19] [20] 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

Sir Anthony Mason
Anthony Mason, Solicitor-General of Australia (cropped).jpg
Mason c. 1968
Chief Justice of Australia
In office
6 February 1987 20 April 1995

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. [21] [22]

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. [21]

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. [21]

However, on 11 November 1975, Kerr dismissed Whitlam summarily. Had Kerr notified Whitlam of his intention, Whitlam could have 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. [21]

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, [23] although without consulting him further a "very different" text was used. [21]

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. [21]

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. [21]

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. [21]

Honours

References

  1. 1 2 3 4 Walker, Kristen (2001). "Mason, Anthony Frank" (PDF). In Blackshield, Tony; Coper, Michael; Williams, George (eds.). Oxford Companion to the High Court of Australia. pp. 459–460.
  2. 1 2 "Obituary: Frank Maxwell Mason". Australian Surveyor. 38 (2): 143–144. 1993. doi:10.1080/00050326.1993.10438852.
  3. Mason, Anthony (2009). "Tribute: The Hon T E F Hughes AO QC" (PDF). NSW Bar Association News. Vol. 13. pp. 24–25.
  4. 1 2 Morgan, Clare (6 October 2016). "From mothers to Mabo, audience joins Sir Anthony Mason on a stroll through history". University of New South Wales. Retrieved 4 November 2024.
  5. "In Divorce". The Sydney Morning Herald. 19 December 1936.
  6. "Lost Inferiority Complex: Story of Wife's Remark About Drink". The Sun. Sydney. 18 December 1936.
  7. "Navigator named Chief Justice of High Court". RAAF News. 1 March 1987.
  8. "World War Two Service: Veteran Details". Department of Veterans' Affairs. Retrieved 4 November 2024.
  9. "Solicitor-General Q.C., 39". The Canberra Times. 27 November 1964.
  10. "Privy Council rules against IPEC appeal". The Canberra Times. 21 January 1966.
  11. "Appointed to ANU council". The Canberra Times. 6 October 1969.
  12. "Appointed a Justice". The Canberra Times. 25 July 1972.
  13. Williams, George; Brennan, Sean; Lynch, Andrew (2014). Blackshield and Williams Australian Constitutional Law and Theory (6 ed.). Leichhardt, NSW: Federation Press. ISBN   978-1-86287-918-8. chs 28–29
  14. Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh [1995] HCA 20; (1995) 183 CLR 273
  15. Williams, George; Brennan, Sean; Lynch, Andrew (2014). Blackshield and Williams Australian Constitutional Law and Theory (6 ed.). Leichhardt, NSW: Federation Press. pp. 887–891
  16. "Hong Kong Court of Final Appeal – Former Judges – Sir Anthony Frank MASON, GBM". 20 August 2015. Retrieved 3 June 2016.
  17. Susan Boyd (2003), "Australian judges at work internationally", 77 Australian Law Journal 303 at 305.
  18. "Chancellors Exhibition | Records & Archives - UNSW Sydney". www.recordkeeping.unsw.edu.au. Retrieved 30 July 2023.
  19. "Members of Council 1995–96". 36th Annual Report 1995–1996. National Library of Australia. 1996. p. 9. Retrieved 9 January 2025.
  20. National Library of Australia (1998). "Appendix 2. The Council of the National Library of Australia". Annual Report, 1997–1998. Archived from the original on 2 October 1999. Retrieved 16 February 2017.
  21. 1 2 3 4 5 6 7 8 "Mason Disputes Details But Largely Confirms Kerr's Account Of Their Discussions". WhitlamDismissal.com. Retrieved 19 March 2018.
  22. 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 (6 ed.). Leichhardt, NSW: Federation Press. pp. 361–65. ISBN   978-1-86287-918-8.
  23. Hocking, Jenny (19 March 2018). "Snub over 'palace letters' underlines why Australia should ditch the Queen". The Guardian. Retrieved 19 March 2018.
  24. It's an Honour: CBE
  25. It's an Honour: KBE
  26. It's an Honour: AC
  27. It's an Honour: Centenary medal
  28. "2013 Honours List". www.info.gov.hk. Retrieved 30 July 2023.
  29. "Anthony Mason – Member public profile". Australian Academy of Law. Retrieved 31 July 2020.

Further reading

Legal offices
Preceded by Chief Justice of Australia
1987–1995
Succeeded by
Order of precedence
Previous:
Peter Woo
Recipient of the Grand Bauhinia Medal
Hong Kong order of precedence
Recipient of the Grand Bauhinia Medal
Succeeded by
Maria Tam
Recipient of the Grand Bauhinia Medal
Academic offices
Preceded by Chancellor of the University of New South Wales
1995 2000
Succeeded by