Dynamic and Principled: The Influence of Sir Anthony Mason

R D Turnbul

Sir Anthony Frank Mason served as a judge of the NSW Court of Appeal, and as a justice, and later Chief Justice, of the High Court of Australia. Upon his retirement he then served as a judge of the Supreme Court of Fiji, President of the Solomon Islands Court of Appeal, and most influentially as one of the first non-permanent judges of the Court of Final Appeal of Hong Kong, the body which replaced the Privy Council on handover.

Over that time, he decided cases in the context of not one, but two, former British colonies attaining their judicial independence from the United Kingdom – the Australian Commonwealth and States, and Hong Kong. In response to this life of achievement, much has been published. This latest work is a festschrift-like collection comprised of 23 essays analysing Sir Anthony’s work as a judge, and the enduring quality of his jurisprudence. Its publication was supported financially by the Francis Forbes Society for Australian Legal History.

The essays which make up the book almost cover the full breadth of legal issues Sir Anthony considered while a member of the High Court. Having them drawn together in this way, thematically, rather than disparately through the Commonwealth Law Reports, brings home to the reader the considerable contribution he made to Australian law. Sir Anthony left almost no area of jurisprudence unexplored. Constitutional law, fairly obviously, looms large. Associate Professor Sean Brennan considers Mason’s approach to constitutional interpretation.

Professor Peter Gerangelos deals with the external affairs power, which underwent a vast blossoming as a placitum of legislative power in the 1980s. Professor Anne Twomey explores the outer limits of the Commonwealth’s nationhood power, and how Sir Anthony dealt with it. However, if it is possible to single out a case, one might settle on Cole v Whitfield (1988) 165 CLR 360. Section 92 of the Constitution is little litigated today, but formerly was a fecund source of disputation. Professors Theunis Roux and Rosalind Dixon explain how Mason led the court in sweeping aside (with good reasons for so doing) over 80 years of conflicting jurisprudence, to settle on an interpretation of section 92 which is still with us today. As Gageler J has said, Cole v Whitfield marked a 'turning point in s 92 jurisprudence': Palmer v Western Australia (2021) 246 CLR 182, [28].

The field of private law receives ample treatment – chapters on contracts, torts, conflicts of laws, fiduciary duties, estoppels, trusts and unconscionable conduct. Standing on its own is Professor Prue Vines’ treatment of First Nations people and succession law. It considers the intersection of the important public law consequences of Mabo v Queensland (No. 2) (1992) 175 CLR 1, and the quasi-public, quasi-private nature of disputes about the distribution of the estates of Indigenous people. Coming at the end of the work, it perhaps points in a direction where the underlying architecture of our system of laws is preserved (as the High Court sought to do in Mabo) while recognising Indigenous customary law’s part in that system.

But perhaps the overarching chapters at the beginning of the collection merit the most attention. They situate Sir Anthony’s jurisprudence in its historical context. They remind us of the relative novelty of matters we now take for granted. The principal feature of his time as a judge was the continued erosion, and eventual elimination, of appeals from Australian courts to the Privy Council. Once that Imperial appellate body retreated from the apex of judicial decision-making in this country, and the Australia Acts 1986 (Imp and Cth) came into force, Australia achieved its undoubted independence (despite what some proponents of an Australian republic might continue to say). Similarly, the creation of a permanent intermediate appellate court in New South Wales formed (with some little rancour) a body of judges which generated precedents that other courts could follow or apply. That became even more important once the special leave gateway was introduced into the High Court. No less important was the publication of textbooks on Australian law, rather than mere Australian supplements to English texts. These events helped shape a distinctly Australian body of law, and Sir Anthony helped to shape it.

Some of the essays in the book are intensely practical, perhaps of greatest interest to a member of the Outer Bar trying to formulate or defend a case (late at night). Professor Fiona Burns’ contribution on private property law, or Associate Professor Hudson’s essay on estoppels, fall into that category. Others are of a more academic and theoretical bent, suited perhaps to full-time academics or enthusiastic amateurs, such as Professor Roux and Dixon’s examination of Cole v Whitfield.

The unfairest criticism of a book such as this is one of omission. Much has to be excluded to keep it to a manageable size and price.

Nevertheless, crime does not rate a mention. There is no essay on it; the word does not appear in the index. Cases such as Weissensteiner v The Queen; Dietrich v The Queen; and Chamberlain v The Queen (No. 2) were decided while Sir Anthony sat on the High Court. His contribution to this important field might have been addressed. The law, ultimately, is about people. The people who shape it, and the people who are shaped by it. Litigants, solicitors, barristers, judges, parliamentarians, and interested observers. Each plays their role, and each contributes to the maintenance, and continued improvement, in both legal principles, and their application in the lives of everyday Australians. Whether they know it or not, Sir Anthony Mason’s contributions to the law in their country has had an effect on all Australians.

With respect, Gageler J summed it up stylishly on launching the book, saying: '

Sir Anthony, thank you for your honouring all of us with your presence. Thank you for your service to Australian law and Australian legal institutions. Thank you for your contribution through that service to our national development. But for you, the book we have come to launch would have no hero. But for you, our national story over the last half century would have had a different plot.'

Whether practitioner or academic, judge or law student, active or retired, there is material in this collection to interest— and indeed engross—many lawyers and members of the Bar. BN

R D Turnbul