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Joint Symposium on “Towering Judges”: Sir Anthony Mason: Towering over the High Court of Australia

Gabrielle Appleby and Andrew Lynch, University of New South Wales Faculty of Law

[Editor’s Note: This is part of the joint I-CONnect/IACL-AIDC Blog symposium on “towering judges,” which emerged from a conference held earlier this year at The Chinese University of Hong Kong, organized by Professors Rehan Abeyratne (CUHK) and Iddo Porat (CLB). The authors in this post formed part of a panel on “Towering Judges in Mature/Stable Democracies.” The introduction to the joint symposium can be found here.]

Two figures tower over the history of the High Court of Australia: Sir Owen Dixon (1929-1964) and Sir Anthony Mason (1972-1995). While our argument is that it is Mason who has risen to be the contemporary towering jurist of Australia’s High Court, they both remain obvious contenders for the appellation of a ‘Towering Justice’ in Australia, and any consideration of their respective legacies requires an appreciation of the other.

Dixon’s legacy stems from his long and distinguished tenure, in which he was famous for his articulation of a vision of a court constrained by the rigour of legalism. ‘Dixonian legalism’ affirmed the previous approach of the High Court from the decades since 1920, and held the Australian High Court in its conservative grip after Dixon’s tenure for more than half a century. Much more than a rhetorical shield against political criticism of the occasional decision in which government was thwarted, Dixon’s ‘strict and complete legalism’ was an affirmation and defence of Australian legal and political values that, unsurprisingly, embraced the positivist English legal tradition which proved both familiar and congenial to generations of Australian lawyers.[1]

Our case that it is Mason who has risen as the contemporary ‘Towering Judge’ of the Australian High Court is founded on his effective challenge to that orthodoxy – both as an individual judge and as the unquestioned leader of a remarkably talented and vibrant Court. The ‘Mason Court’ (1987-1995) reset contemporary debates about the institutional role of the Court in the Australian constitutional system, which was reflected in a distinct shift in its constitutional jurisprudential approach. Mason and his Court’s influence has endured in the face of efforts, through executive-led judicial appointments, to revert to formalism.

Mason started his judicial career on the High Court closely associated with a more legalistic formalism in his constitutional and other jurisprudence. However, by the time of his elevation to be Chief Justice of the High Court in 1987, it was clear that there had been a judicial metamorphosis.[2] Although such a neat bifurcation of Mason’s career tends to be overly simplistic and fails to heed earlier indications as to his developing views that legalism had run its course as the Court’s jurisprudential guiding light, there is no doubt that the full force and direction of his jurisprudence was clear by this time. It was also at this time that a number of other factors coalesced that Mason would draw on in his jurisprudential turn, including the snipping of the final constitutional ties to the UK through the passage of the Australia Acts in 1986, and the appointment of a bench inclined to move beyond Dixon’s coveted legalism.

We argue that Mason’s jurisprudential legacy is best understood in three distinct dimensions – each of which have proven so durable as to make him the towering jurist of contemporary Australian law.

The three dimensions can be broadly categorised as first, his rejection of formalistic legalism that had dominated the Court at least in its rhetoric since the 1920 decision in the Engineers Case and had peaked under Dixon. By advocating for a more transparent examination of value judgments in judicial development of law, Mason launched Australia’s first sustained conversation about the proper role of the judge as a law-maker and what should guide judicial choice in constitutional interpretation. Indeed, it remains an ongoing conversation that continues to be defined by reference to the values-based reasoning introduced by Mason.[3]

The second was his turn away from an unfaltering faith in Parliament’s role in securing the protection of the rights of individuals, towards a more highly-developed understanding of democracy, one that moved away from simple and exclusive emphasis on legislative enactments as an expression of majority will, and towards ‘a notion of responsible government which respect[ed] the fundamental rights and dignity of the individual.’[4] He advocated a concomitant rise in the role of the Court in securing these protections, explaining judicial decision-making as ‘more likely to be principled and reasoned’ than the political process for protection of rights.[5]

Mason’s preference for judicial intervention to protect and promote the rights of individuals was evident in a multitude of areas addressed by the Court he led. Most importantly were the 1992 decisions pertaining to recognition of the common law native title in Australian land held by its indigenous population (Mabo v Queensland [No 2]) and those that established a constitutionally implied freedom of political communication (Nationwide News and ACTV v Commonwealth).

The third dimension was his articulation of a consistent set of constitutional values through which he would approach the resolution of constitutional issues, in place of legalism’s cloaking of a conservative value set. Those values may be succinctly presented for present purposes as three meta-values: (1) popular sovereignty and the role of the individual in a democratic system; (2) federally driven values, emphasising the need for equality across the nation but also the importance of a strong national government operating in a global system of governance; and (3) the importance of judicial fair process. Mason’s value-set was remarkable in Australia’s jurisprudence for its clarity and its unabashedly progress-minded nature, reflecting the changing context in which the nation found itself. More importantly, it was capable of attracting a majority of the Court both then and since – and so has secured the specific doctrinal developments to which those values gave rise.

Evident in Mason’s jurisprudential legacy is what Richard Cornes has referred to as constitutional ‘guardianship’ or leadership as a constitutional guardian, providing and explaining to the nation a coherent and contemporary constitutional vision.[6] Through his extra-curial forays, dealing in particular with the executive and the media, defending judicial independence and integrity against government and public criticism, and promoting access to and efficiency of justice, Mason performed this role in a way no Chief Justice before him had.

Mason’s tenure as Chief Justice attracted controversy not just for his attempt to shift the Court’s institutional relationship to the political branches. He has been the subject of criticism for his role as a sitting High Court judge in advising the Governor-General during the constitutional crisis that led to the dismissal of Whitlam. His extra-curial position on the desirability of appointing more women, and his continued assertion of merit as the guiding principle for appointment to the bench has also attracted controversy, and was in stark contrast to the position taken by his successor, Sir Gerard Brennan. Nonetheless, his jurisprudential legacy, and his reputation as a constitutional statesperson, have been largely undented by these issues.

Since he retired in 1995, it is against Mason’s legacy that a new generation of legalists on the Court have had to define – and indeed, defend – themselves. In the face of a conscious political attempt through the executive’s power of judicial appointments to push back against the jurisprudential shifts effected by Mason and his Court, the methods, values and doctrinal developments they effected have proved remarkably resilient. This resilience can be traced back to his work on the Court, as well as almost a quarter of a century’s work since departing the Court in extra-curial speeches and papers, academic posts, public addresses and post-judicial appointments particularly to foreign courts.

Suggested citation: Gabrielle Appleby & Andrew Lynch, Joint Symposium on “Towering Judges”: Sir Anthony Mason: Towering over the High Court of Australia, Int’l J. Const. L. Blog, Mar. 8, 2019, at: http://www.iconnectblog.com/2019/03/joint-symposium-on-towering-judges-sir-anthony-mason-towering-over-the-high-court-of-australia


[1] Jeffrey Goldsworthy, ‘Australia: Devotion to Legalism’ in Jeffrey Goldsworthy, Interpreting Constitutions – A Comparative Study (Oxford University Press, 2006) 106, 155.

[2] See Michael Kirby, ‘AF Mason – From Trigwell to Teoh’ (1996) 20 Melbourne University Law Review 1087; Jason Pierce, Inside the Mason Court Revolution – The High Court of Australia Transformed (Carolina Academic Press, 2006).

[3] See, eg, Rosalind Dixon, ‘The Functional Constitution: Re-Reading the 2014 High Court Constitutional Term’ (2015) 43(3) Federal Law Review 455; Rosalind Dixon (ed), Australian Constitutional Values (Hart, 2018).

[4] Anthony Mason, ‘Future Directions in Australian Law’ (1987) 13 Monash Law Review 149, 163.

[5] Anthony Mason, ‘The Role of a Constitutional Court in a Federation: A Comparison of the Australian and the United States Experience’ (1986) 16 Federal Law Review 1, 11.

[6] Richard Cornes, ‘A Point of Stability in the Life of the Nation: The Office of Chief Justice of New Zealand – Supreme Court Judge, Judicial Branch Leader, and Constitutional Guardian and Statesperson’ [2013] New Zealand Law Review 549

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Published on March 8, 2019
Author:          Filed under: Analysis
 

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