Legacy of a giant: the judge who reshaped Aussie law

Anthony Mason presided over one of the most adventurous and contentious High Courts in Australia's history.

As chief justice from 1987 to 1995, Sir Anthony led a court that made landmark decisions and ended its long history of legalism, or adhering strictly to precedent and the text of the constitution.

Instead, the court tried to interpret the law in ways that would allow it to take account of Australia's changing social and economic circumstances.

It was also a form of nationalism, a conscious decision to develop an Australian common law rather than invariably following English precedent.

The approach, particularly in the Mabo case and on issues of free speech, was widely welcomed with some, including former Labor prime minister Gough Whitlam, proclaiming Sir Anthony Australia's greatest chief justice.

To others, he was a judge dangerously making rather than interpreting law and, in doing so, usurping the role of parliament.

Whatever the rights of the competing claims, people came to speak of the "Mason Court" more frequently than they did of his predecessor, Harry Gibbs, or his successor, Gerard Brennan.

Sir Anthony didn't like the term, pointing out the collegiate nature of the court and the sturdy independence of the other six judges.

Moreover, earlier in his 23 years on the court - only Owen Dixon and Isaac Isaacs were there longer - he was more cautious.

Some commentators spoke of Mason 1 and Mason 2. It was, presumably, Mason 1 who secretly advised Governor-General John Kerr on the dismissal of the Whitlam government.

Anthony Frank Mason, who died on Tuesday not long before his 101st birthday, was born in Sydney on April 21,1925.

The product of an upper-middle class upbringing with law in his genes, he went to prestigious private school Sydney Grammar and the Sydney University, the latter stint interrupted by war service in the RAAF.

His rise among the legal fraternity was quick. At 25 he went to the bar, under family friend Kenneth Asprey QC, a future NSW Supreme Court judge.

Mr Asprey's secretary was Patricia McQueen, who was being courted by a prominent lawyer.

But the silk recalled: "Then master Mason turns up in my office and that was the end of the other fellow's chances."

The pair were married within the year and had two sons.

Sir Anthony specialised in equity and commercial law, honed his sharp tongue and mordant humour and became future judge Garfield Barwick's favourite junior

The judiciary liked him too, partly because he didn't waste their time.

Years later, on the bench, he discouraged the long-winded with questions like, "Have you any other irrelevancies which you wish to bring to our attention?"

It was an unsuccessful case that perhaps influenced him most.

In 1955, he was refused permission to appear for suburban newspaper owner Raymond Fitzpatrick in the House of Representatives over a charge of contempt of parliament.

The house jailed Mr Fitzpatrick and journalist Frank Browne for three months without allowing their counsel to speak for them. The High Court refused to intervene.

The case strengthened Sir Anthony's determination to defend individual rights against governmental abuses of power.

In 1964, he took silk and was appointed commonwealth solicitor-general.

In this role, he was an architect of the so-called new administrative law, including the Administrative Appeals Tribunal, the ombudsman and freedom of information provisions.

In 1969, he went to the NSW Court of Appeal and three years later the McMahon government appointed him to the High Court, where Sir Garfield, his old leader and mentor, had been chief justice for eight years.

During his early years, he was relatively conservative and wrote a number of joint decisions with the chief justice, a legalist in the Dixon tradition.

In one, he wrote there were very powerful reasons why the court should not adopt a law-making role and that it was neither a legislature nor a law-reform agency.

Although it wasn't revealed until 2012, he played a role in the 1975 dismissal of Whitlam.

The then-governor-general, in a hitherto secret "archive", said he confided all the unfolding details of the crisis to Sir Anthony "to fortify myself for the action I was to take".

The judge advised Sir John he had the power to dismiss Mr Whitlam, but he didn't actually advocate that course of action.

And he told him he should give the prime minister advance warning that he'd be sacked if he didn't agree to an election.

Sir Anthony gradually became a middle-ground judge, between the extremes of Sir Garfield and Lionel Murphy.

By 1980, he'd moved down the liberal path enough to remove an injunction granted to the Fraser government to stop newspapers publishing confidential defence and foreign affairs material.

He said it was unacceptable to stop publication of information that would allow the public to discuss, review and criticise government actions.

A year before he became chief justice, he noted legalism could have a subtle and formidable conservative influence.

Sir Anthony brought change to the court.

He tried to get his judgments written first, thus setting a benchmark for the others. He got rid of the wigs.

Towards the end of his term, he tried to explain the court to the public through speeches and media appearances.

He also introduced a video-link system, allowing the court in Canberra to hear special-leave applications from state capitals.

At an early one, the image from Canberra inexplicably switched from the court to Bananas in Pyjamas.

Future federal attorney-general Daryl Williams, who was appearing at the Perth end, was said to have remarked there wasn't much difference.

Sir Anthony believed Australia of the late 1980s was changing economically and socially.

He accepted the federal government needed powers to manage a globalising economy, but he also knew individual rights needed careful protection.

The abolition of appeals to the UK Privy Council was another influence.

He said it meant the High Court no longer had to defer to English precedent and was free to develop Australian common law.

The Mabo decision in 1992, when the court held that under certain circumstances the common law of Australia recognised native title, brought the top judicial body fully into the public spotlight.

It revealed deep divisions over Aboriginal land rights; some applauded the decision for rejecting discriminatory legal doctrine, while others abused the court for exceeding its role.

In the Teoh case, the court said because Australia had ratified an international convention on the rights of children, the federal government should have considered the interests of the plaintiff's Australian-born children before deporting the Malaysian. That didn't please the government.

The Dietrich case, with the court holding that a person charged with a serious offence needed legal representation, had implications for Legal Aid funding.

Perhaps the most legally controversial were the free-speech cases, in which a majority found that what the constitution said about representative government implied a right to freedom of political expression.

This allowed the court to, among other things, invalidate a law banning broadcast political advertising during an election campaign and extend protection from defamation against public figures.

But there were limits. Despite dissents from William Deane and Mary Gaudron, the court permitted court martials for serious offences that would usually be covered by the Crimes Act as long as there was a service connection.

The Mason court divided commentators.

Critics included future High Court judge Ian Callinan, who thought the court was particularly intrusive in the free-speech cases.

Sir Garfield said these decisions threatened democracy and parliamentary government.

Academic lawyer Greg Craven said there was distrust between the court and government - and blamed the judges.

On the other hand, Maurice Byers, a commonwealth solicitor-general and leading Sydney lawyer, said the court was one of the most gifted and courageous in Australia's history.

Michael McHugh, who joined the court in 1989 and was no enthusiast for creative interpretation, said Sir Anthony was a very great justice.

Retirement from the court didn't mean retirement for the prominent jurist.

He became a judge of the Fiji Supreme Court, the Solomon Islands Court of Appeal and the Hong Kong Court of Final Appeal.

He also held a range of high positions in Australian universities and lectured at Cambridge.