Sir Anthony Mason Research Articles

The Constitutional Duty to Give Reasons for Judicial Decisions

The obligation of judicial officers to provide reasons for their decisions has been described by Sir Anthony Mason, a former Chief Justice of the High Court, as an element of the broader ‘culture of justification’ that exists in modern democracies. While there is an increasing international scholarly literature examining the duty to give reasons for judicial decisions, the Australian scholarly literature is far less developed.

Addressing ‘Loss of Identity’ in the Joint Judgment: Searching for ‘The Individual Judge’ in the Joint Judgments of the Mason Court

There has been a spate of recent articles by current, and former, judges in Australia debating the relative merits of joint and separate judgments.[footnote* See, eg, Justice Dyson Heydon, ‘Threats to Judicial Independence: The Enemy Within’ (2013) 129 Law Quarterly Review 205; Sir Anthony Mason, ‘Reflections on the High Court: Its Judges and Judgments’ (2013) 37 Australian Bar Review 102; Peter Heerey, ‘The Judicial Herd: Seduced by Suave Glittering Phrases?’ (2013) 87 Australian Law Journal 460; Justice Stephen Gageler, ‘Why Write Judgments?’ (2014) 36 Sydney Law Review 189; Justice Susan Kiefel, ‘The Individual Judge’ (2014) 88 Australian Law Journal 554. For a summary of the alternative views expressed in these offerings see Andrew Lynch, ‘Keep Your Distance: Independence, Individualism and Decision-Making on Multi Member Courts’ in Rebecca Ananian-Welsh and Jonathan Crowe (eds), Judicial Independence in Australia – Contemporary Challenges, Future Directions (Federation Press, 2016) 156.] One of the arguments against joint judgments is that they entail the loss of individual voice and due recognition for the development of the law.

The Principle of Legality and a Common Law Bill of Rights - Clear Statement Rules Head Down Under

This article traces the evolution in Australia of fundamental rights protection provided by the courts. It is a fascinating and controversial story that at its most critical moments was (and continues to be) informed by American constitutional law design and statutory interpretation principles. On one level that is no surprise when ‘it may be said that, roughly speaking, the Australian Constitution is a redraft of the American Constitution of 1787 with modifications found suitable for the more characteristic British institutions and for Australian conditions.’ But what is extraordinary is that the decision of the framers of the Australian Constitution to consciously reject American notions of formal rights guarantees has not, ultimately, been decisive in this regard. As Sir Anthony Mason - one of the leading figures central to the new judicial rights consciousness in Australia - noted, portentously, in 1995 ‘[j]ust as the courts can protect common law rights by applying presumptive rules of construction, so they can protect fundamental rights, even in the absence of constitutional entrenchment and statutory backing.’ And so it has proven to be. The Australian High Court has transformed an old interpretive canon (with American roots) into a strong Australian species of clear statement rule for fundamental rights called the principle of legality. It has done so to fill the lacuna in formal rights protection in Australia and to temper (if not outright resist) increasingly common legislative attempts to eradicate fundamental rights. The Court has used the application of the principle of legality to construct (and robustly protect from legislative encroachment) a quasi-constitutional common law bill of rights. In order to normatively justify these developments the High Court has turned towards the inherently contested principles of the Australian Constitution to anchor the principle of legality and the interpretive process more generally. This has, controversially, occurred as part of a foundational shift in judicial doctrine and practice that considers legislative intention to be the product not the lodestar of statutory interpretation.

Comparative Analysis in Judicial Decision-Making: The Australian Experience

Comparative Analysis in Judicial Decision-Making: The Australian Experience, 10.1628/003372511795316836, Jahrgang 75 (2011) / Heft 2, 0033-7250 (1868-7059), The Rabel Journal of Comparative and International Private Law

Unlovely and Unloved: Corporate Law Reform's Progeny

Oscar Wilde would have regarded our modern Corporations Law not only as uneatable, but also indigestible and incomprehensible (Sir Anthony Mason, 1992).There is no dispute; it is unlovely and unloved. Complex, ungainly, internally inconsistent, conceptually troubled; the Corporations Act 2001(CA 2001) is a mishmash of old law, ad hoc amendments, provisions pulled willy-nilly from different legal systems, statements which are not law at all, ideological posturing, and drafting styles that swing wildly from the colloquial to the technical. Despite massive efforts at law reform in the last fifteen years, and continuous tweaking, the CA 2001 remains, as Sir Anthony Mason found it, indigestible and incomprehensible.The state of the legislation, at odds with the dynamism of the Australian economy over this same period, raises some intriguing questions. Is corporations law not just trivial, as Bernard Black provocatively suggested a few years ago, but completely irrelevant? In this case, does law not matter, not a whit? Is corporate law reform not worth the economic candle? Why is consistency and coherency in business law not valued in Australia? Is this an atavistic response of an old common law system, a deep-rooted aversion to codification?This paper looks at some of the consequences of this state of affairs, arguing that a better corporations law would be of benefit to Australia. The paper identifies some points of departure: a separate business corporations statute, elimination of the bifurcation of directors duties (as between the statute and the general law), substitution of a comprehensive personal property security regime for the troublesome insolvent trading provisions and reconceptualisation of the complexities of capital maintenance rules.

Law, History, and the Idea of the High Court

I want to bring a slightly different perspective to those you have heard to this point: a legal perspective, with special reference to the High Court.Reading through the program, what really struck me was how so many of the issues of history and historiography manifest themselves in the High Court, whether through the way they shape the issues that arise for decision, or in relation to how we see the role and impact of the Court itself as one of our institutions of national government. Just think of these themes in your program: colonialism, federation, national unity, democracy, environmental history, military history, indigenous history, gender issues. I could tell you the story of the High Court (and I must say that I think of history essentially as stories) from any or all of these perspectives: how these issues assume legal form and are pronounced upon by the Court, and how the currents of history themselves sweep through the Court and affect our assessment of it as an institution.Moreover, the High Court’s own decision-making processes raise all of the familiar questions of historiography: questions of evidence and proof, of fact selection, of interpretation of texts, and so on. Former High Court Chief Justice Sir Anthony Mason will touch on that in the next session – let me first go back a step and say a bit about the some of the differences between law and history.This paper was presented at the Australian Government Summer School For Teachers Of Australian History Conference, Canberra, Australia, 14-23 January 2008.

Aspects of Judicial Independence and Accountability – Lessons for the Commonwealth Caribbean?*

Ten years ago Sir Anthony Mason, a former Chief Justice of Australia, warned that ‘a failure to strike the right balance between judicial independence and judicial accountability will result in either an unacceptable weakening of judicial independence or inadequate accountability’.1 * This paper was originally delivered at the 15th Commonwealth Law Conference in Nairobi. Reprinted with permission of the author. ** Sir David Simmons, K.A., B.C.H. assumed office as the 12th Chief Justice of Barbados on January 1, 2002. Sir David Simmons studied Law at the London School of Economics and Political Science, graduating in 1963, with the LL.B. (Hons.) degree and in 1965, the Master of Laws degree (LL.M). In 2003, he was made an Honorary Fellow of the University of the West Indies and was also awarded the Honorary degree of Doctor of Laws (LL.D.) by the University of London – the first Caribbean person to be accorded that high distinction by that University. In 2006, Sir David was elected as an Honorary Bencher of the Honorable Society of Lincoln's Inn, the Inn of Court at which he qualified as a Barrister‐at‐Law. From 1976 he served continuously for 25 years in the Parliament of Barbados and in 2001, he retired from active politics. Appointed twice as Attorney‐General of Barbados, from 1985 to 1986, and from 1994 to 2001, he reformed and modernized the laws of Barbados in a wide variety of areas; represented Barbados at regional and international fora and has published widely. Sir David also acted as Prime Minister of Barbados on many occasions between 1994 and 2000. In 2001, for his contribution to public service, law and politics, he was awarded the Barbados Centennial Honour (B.C.H.), and Barbados' highest national honour, Knight of St. Andrew (K.A.). 1 Judicial Commission of New South Wales (1997) Fragile Bastion – Judicial Independence in the Nineties and Beyond (Sydney: Judicial Commission of New South Wales), Chapt 1, p. 2. This article examines some of the evolving aspects of judicial independence and judicial accountability within and outside the Commonwealth Caribbean and highlights some of the practical problems that occur in our region or are likely to arise. Decisions of courts and emerging practices in other parts of the Commonwealth provide excellent guidance and lessons for us in the Caribbean. Judicial independence and accountability are not esoteric matters. They are principles that, admittedly, may resonate particularly with judicial officers because they tend to affect judicial officers in practical ways. But they are principles that are fundamental to good governance in democratic societies. Indeed, Commonwealth Heads of Government acknowledged the importance of these two principles when, at their meeting in Abuja, Nigeria, in 2003, they adopted the Latimer House Guidelines2 as Commonwealth Principles. Such importance and respect are now accorded judicial independence that the UK Parliament actually enshrined the principle in the text of the Constitutional Reform Act 2005: ‘The Lord Chancellor, other Ministers of the Crown and all with responsibility for matters relating to the judiciary… must uphold the continued independence of the judiciary.’3 2 The Latimer House Guidelines for the Commonwealth, 19 June 1998. 3 Section 3(1). Although this article will discuss judicial independence and accountability separately, it will be argued that the two concepts are not inconsistent and must coexist.

Loewen v. United States: The Burial of an Investor-State Arbitration Claim

THE ARBITRATION award rendered in the North American Free Trade Agreement (NAFTA) arbitration Loewen Group International v. United States is remarkable in the contrasting reception it has received in the small community of arbitration practitioners and the American public at large. While the case was going on, non-governmental organizations, the media and political figures appeared acutely aware of the proceedings, mostly ranting that the case represented an ‘end run around the Constitution’ and a betrayal of American sovereignty to foreign corporate interests. Now that the award has been rendered and the case dismissed, such attention is conspicuously absent. There appears to be little jubilation, expressions of satisfaction, not even a short notice in the New York Times or other national press. Within the community of arbitration practitioners around the world, however, many quickly expressed disappointment and disagreement with the Laewen tribunal’s decision. Many wondered how a complaint that the arbitrators themselves recognized was substantively well founded, arising out of government measures that were clearly egregious, could be wholly dismissed. Prima facie , it seemed to some unlikely that the outcome of the case would have been the same had Mexico or Congo been the respondent rather than the United States. From this perception arose the question: if the United States managed to escape liability under an applicable investment treaty even in so extreme a case as Laewen , do arbitral tribunals hold capital exporting states to the same standards of investment protection as they do developing countries? In light of growing dissatisfaction in some quarters about the reasoning and consistency of international arbitral awards, the Laewen decision added a new note of cynicism into the debate. It would be ludicrous to suggest that such eminent arbitrators as Sir Anthony Mason and Lord Mustill are somehow dependent on the United States; …

Sir Anthony Mason

Sir Anthony Mason

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Sir Anthony Mason

The Rights of Citizens and the Limits of Administrative Discretion: The Contribution of Sir Anthony Mason to Administrative Law

The Rights of Citizens and the Limits of Administrative Discretion: The Contribution of Sir Anthony Mason to Administrative Law

The Rights of Citizens and the Limits of Administrative Discretion: The Contribution of Sir Anthony Mason to Administrative Law

The Rights of Citizens and the Limits of Administrative Discretion: The Contribution of Sir Anthony Mason to Administrative Law

The Role of a Constitutional Court in a Federation a Comparison of the Australian and the United States Experience

The Australian National University, the Sir Robert Menzies Memorial Trust and the University of Virginia Law School have established an annual Menzies Lecture Series. The Lectures are held in honour of Sir Robert Menzies and mark his contribution to the law and public life. The Lectures are given in alternate years at the Law Schools of the University of Virginia and the Australian National University. The Lectures will be published in the “Federal Law Review”. The first Menzies Lecturer was The Honourable Sir Anthony Mason of the High Court of Australia who visited the University of Virginia in October 1985. The following article is based on Sir Anthony's lecture.