—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
Comments
One response to “Joint Symposium on “Towering Judges”: Sir Anthony Mason: Towering over the High Court of Australia”
While I agree that Sir Owen Dixon and Sir Anthony Mason qualify as “Towering Judges in Mature/Stable Democracies”, they do so for wholly opposite reasons in terms of what good and honourable judges should do. While Dixon’s “tall tower” is built on solid rock, Mason’s stands on clay which will eventually crumble and the tower will deservedly tumble. History shows that the truth always emerges, and in this case the ingredients are already in the public domain waiting for the inevitable accurate collation and evaluation to occur.
To date, Sir Anthony has demonstrated a remarkably plausible and bafflingly effective capacity to sanitise his culpability in destabilising mature/stable democracies and the rule of law in staggeringly many serious and totally unacceptable ways. While the crime committed against constitutional democracy (the Whitlam dismissal) in a conspiracy of three politically-appointed judges (one of whom was Governor General) was the most monumental of these, there are examples of unorthodox Mason Court adjudication which are hardly less serious. Honesty and integrity (first and foremost), impartiality, respect, humility and accuracy are essential character and competence attributes of all judges. Given the universal importance of the rule of law, this cannot be truer than for judges. No judge is above the law. The Judicial Oath and other binding law such as the crime of obstruction of justice makes that plain. Dixon’s safeguard of “strict and complete legalism” – expediently misrepresented and ridiculed as rigid by his “young generation” critics – recognised these fundamental principles. The illegitimate and uncontrolled “politicised, flexible and elastic activist adjudication”, most damagingly advocated and practised by Mason, brushed them aside. Such unjudicial conduct is inconsistent with Sir Anthony’s claimed value of “equality across the nation”.
Not every observer is gulled. For example, the respected Lord Bingham (definitely a genuine “Tall Tower”), first President of the Supreme Court of the United Kingdom (which replaced the House of Lords in 2009) cautioned: “we may agree with [High Court of Australia] Justice [Dyson] Heydon [regarding] judicial activism taken to extremes … to seek to recast the law in a radically innovative or adventurous way … is to make it uncertain and unpredictable, features which are the antithesis of the rule of law. It is also, of course, very tough on the loser in the particular case, who has lost because the goalposts have been moved during the course of litigation. This can, if the movement is substantial and unpredictable, offend the rule … that laws should generally take effect in the future.” 1 (Tom Bingham, The Rule of Law, Penguin Books 2011, at pp. 45-46, first published by Allen Lane 2010)
Certain famous allegedly “liberal” politicised judgments have in reality been wholly or partly illiberal, elitist, right-wing conservative (as distinct from centrist) and reactionary. For example, in Australian Capital Television (1992) the High Court of Australia found an implied constitutional right to “free political speech” over the broadcast media. Unfortunately, inconsistently with that finding, a majority of the judges led by Chief Justice Mason struck down egalitarian human rights legislation which banned highly expensive and overwhelmingly trivialising, inane, distorting, scaremongering “sound-bite” political advertising at election time.
As practice in America has amply demonstrated for decades, only the very rich can afford to buy broadcast political advertising – and thereby effectively buy democracy to the entrenched political and economic advantage of themselves. Therefore, following British and European precedent and the United Nations International Covenant on Civil and Political Rights 1966 (to which Australia is bound as a state party) the federal government’s legislation banned paid political advertising and required television and radio stations to allocate free airtime in the period before an election enabling a wider range of the people to communicate and debate political views. By striking down the government’s carefully crafted legislation and substituting crudely plutocratic American practice the majority judges drastically diminished rather than enhanced access to free political speech.1 (Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106) English High Court judge, Sir Stephen (later Lord Justice of Appeal) Sedley, denounced Australian Capital Television as being “so partial as to justify every fear the outcome watchers have expressed. … The Australian decision certainly makes it harder to defend the fitness of the courts to undertake constitutional adjudication on human rights issues.”1 (Stephen Sedley, “Human Rights: a Twenty-First Century Agenda” [1993] Public Law 386, at pp.393-394)
In the 1992 Mabo case on the land rights of indigenous Australians, the High Court recognised that leading English common law authority assumed that interests in property existing under native law or customs were preserved and protected by the domestic law of a new British colony after its establishment. Artificially, the court then conservatively took back with one hand much of that which it had progressively given to a tragically oppressed people with the other by denying native titleholders the rights to compensation which were also conferred on them by the relevant common law. In an extraordinarily brief judgment, Mason wrote that the judges had all agreed with his proposal to restrict the grounds for seeking compensation for extinguishment of native title to pursuing a statutory claim of racial discrimination under legislation that did not even exist until the late twentieth century. Without setting out comparative evidential, historical and legal analysis under the applicable English authorities, Sir Anthony argued that, except further to a claim of racial discrimination under the Racial Discrimination Act 1975, compensation should be denied on the artifice “that native title, where it exists, is a form of permissive occupancy at the will of the Crown.”1 (Mabo v Queensland (No.2) (1992) 175 CLR 1)
This sweeping argument was subjective and political as it had no basis in common law. It was self-contradictory, unjust and discriminatory since the Mabo judges had already recognised that, when colonisation began in 1788 (not in 1975, when the Racial Discrimination Act commenced) native title became a common law legal right – which is much more than merely a “permissive occupancy at the will of the Crown”. The right to occupy derived from the pre-existing native title, not a later limited, arbitrary, “might makes right” permission of the Crown. It follows that, if the Crown subsequently withdrew permission then compensation in some form was due, particularly as native title is a substantive ownership right, not simply a “permissive occupancy”. Furthermore, the reason why the Crown decided to diminish or destroy a native title in any given case may have been for a purpose that was completely incidental to the race of the titleholder, yet the Mason Court arbitrarily deprived aggrieved native titleholders of the right to seek compensation which was available to everyone else with an interest in property under the generality of the common law – not merely the Racial Discrimination Act – from which the reasoning in the Mabo judgment derived. The applicable common law did not make the existence, preservation and protection of interests in property under native law or customs – or, consequentially, compensation for impairment of those interests – contingent on the mere technicality, grace, favour or executive fiat of a permit to occupy by the Crown.
After retiring from the High Court of Australia, Mason became the second overseas judge to be appointed to the then fledgling Hong Kong Court of Final Appeal. He unfortunately continued to practice his brand of extreme illegitimate judicial activism there. The first overseas appointee was Sir Robin (later Lord) Cooke who had recently retired from the New Zealand Court of Appeal. Sir Robin soon departed upon the invitation of Lord Bingham to serve in the House of Lords.