Anthony Mason (judge)

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.

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.

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.

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 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.

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.

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).

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 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.

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.

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.

However, on 11 November 1975, Kerr dismissed Whitlam summarily.

Kerr's 1978 autobiography mentions that he had discussed that possibility with Mason but gives no detail.

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:

"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."

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 Council of National Library of Australia in 1997–1998.

He is also a visiting fellow at the Faculty of Law at the Australian National University.

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 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.

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.