Sir Anthony Mason's judicial activism is alive and well, even in retirement

To mark the High Court’s centenary on 6 October 2003, the print media devoted a great deal of space to the Court itself, to some of its most notable cases, and to the Chief Justices and Justices who have comprised its benches. It was interesting to see just how many commentators used the word “activist” to describe the Court of which Sir Anthony Mason was Chief Justice, and to describe Chief Justice Mason himself.

In this they were echoing the words of Justice Dyson Heydon in his October 2002 Quadrant dinner address “Judicial Activism and the Death of the Rule of Law". Mr (as he then was) Dyson Heydon spoke of the dangers for judicial probity that arise where a court deliberately sets out to alter the law. In relation to the High Court of Australia, he contrasted the view of Sir Owen Dixon, whom he described as “probably the greatest of Australian judges”, with the quite different views of some of those appointed to the Court over the last 47 years, and whom he named as innovators who set out deliberately to alter the law. Of one of them Dyson Heydon said: “Among the greatest innovators of them all, until he retired in 1995, was the once cautious Sir Anthony Mason.”

Readers might be interested to know that former Chief Justice Sir Anthony Mason has continued to be innovative, even in retirement. Indeed, Sir Anthony’s contribution to the constitutional debate which took place in Australia between the February 1998 Constitutional Convention and the November 1999 Constitutional Referendum is best described in the words of Lewis Carroll: “That’s not a regular rule: you invented it just now.” (Alice’s Adventures in Wonderland); or “The [White] Knight said ... ‘It’s my own invention.’ ” (Through the Looking-Glass). For Sir Anthony did better than merely alter an ordinary law: he “discovered” hidden in our fundamental law, the Australian Constitution, a constitutional convention which simply does not exist, and he based it on a so-called long-standing practice that has never occurred.

Over several months following the Constitutional Convention, the Faculty of Law at The Australian National University held a series of seminars jointly sponsored by the Public Policy Program and the Centre for International and Public Law. Sir Anthony Mason’s contribution to the series was given on 11 May 1998 in a paper entitled The Republic and Australian Constitutional Development.

Sir Anthony wanted to demean and diminish the role of the Governor-General under the Constitution, so he presented his Law School audience with a number of so-called facts, none of which was true. This former Chief Justice of the High Court cited the wrong Act of Parliament and attributed to it a legal effect which it does not have; spoke about overseas travel by the Governor-General but got the year of the visit, the nature of the visit and the name of the Governor-General wrong; selectively quoted sec. 2 of the Constitution but ignored the existence of the all-important sec. 61; misrepresented a set of so-called facts involving former Governor-General Sir Zelman Cowen and, ironically, the opening of the new High Court building by the Queen in 1980; and proceeded to erect on his errors of fact a non-existent constitutional convention. Sir Anthony claimed to have “discovered” what he was pleased to describe as a “robust” constitutional convention which he alleged had been hidden in the Australian Constitution since 1901. The claim was nothing more than the figment of a fertile imagination.

In order to reduce the Governor-General to a mere representative of the Queen, with no constitutional powers or functions in his own right, Sir Anthony wanted to convince his audience that, when the Queen was in Australia, she took over the Governor-General’s duties and the Governor-General ceased to function. This has never happened in all of the Queen’s 14 visits to Australia, for the simple reason that the Constitution, and specifically section 61, which Sir Anthony steadfastly refuses to mention, doesn’t allow it. The Governor-General does in fact have significant constitutional powers and functions, including the definitive head of state power to appoint and remove Prime Ministers. Furthermore, he does not exercise these powers and function as a delegate or surrogate of the Queen, but in his own right as Governor-General, a fact which was acknowledged in 1988 by the Hawke Government’s Constitutional Commission.

The basis for Sir Anthony’s inventiveness lay in the fact that, when the Queen opened the High Court building in Canberra in 1980, the then Governor-General, Sir Zelman Cowen, was not present. Sir Anthony never sought to discover the reason for this, preferring to invent one that suited his purpose.

Governors-General have not always been included in Royal occasions in Australia. As Official Secretary to the Governor-General, I knew of no constitutional basis for this practice. I also knew that Sir Zelman, himself a distinguished constitutional lawyer, wished to attend the opening of the new High Court building, so I took the matter up with Buckingham Palace in the course of preparations for the 1980 Royal visit. I was told that the Palace knew of no reason why the Governor-General should not be present, and on the following day I received a message that the Queen herself had said that she would be pleased if he were present.

I so informed the ceremonial officers of the Department of the Prime Minister and Cabinet, and orders of arrangements were prepared which included the Governor-General. It was only when the Prime Minister, Malcolm Fraser, saw the draft that he decided that the Governor-General should not be present. With the Governor-General absent, the Prime Minister would be able to move up one place in the procession and in the seating of the official party on the dais. Sir Zelman was later publicly to describe Fraser’s decision as “wanting in principle and demeaning to the Office of the Governor-General”.

When the Queen opened the Commonwealth Games in Brisbane in 1982 Sir Zelman’s successor as Governor-General, Sir Ninian Stephen, was present and seated next to her, as had been the Governor-General of Canada when the Queen had opened the Commonwealth Games in Edmonton in 1978 – two years before the opening of the High Court in Canberra. When the Queen unveiled the Naval Memorial in Canberra in 1986 the Governor-General was present. When the Queen opened the new Parliament House in Canberra in 1988 the Governor-General was present.

Despite these recent examples to the contrary, the former Chief Justice told his 1998 seminar audience that, under the Australian Constitution, there was no place for the Governor-General when the Queen was present. He cited as his authority for that view the disgraceful episode of the opening of the High Court. But the Governor-General had been excluded, not by the Constitution or by constitutional convention but by selfish and self-serving prime ministerial whim and fiat. On the basis of that event, the former Chief Justice claimed to have discovered a constitutional convention which he described as “robust and full of life”.

Sir Anthony should have known that there was and is no such constitutional convention, robust or otherwise, that prevents the Queen and the Governor-General from appearing together in public. After all, when the Queen opened the new Parliament House on 9 May 1988, not only was the Governor-General on the dais with her, but the then Chief Justice, Sir Anthony Mason, was present in the audience as an honoured guest and was seated in the very front row!