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Sir Anthony Masonís judicial activism is alive and well, even in retirement

By David Smith - posted Wednesday, 25 July 2007


Readers of On Line Opinion, having already been reminded of the judicial activism of Chief Justice of the High Court, Sir Anthony Mason, will not be surprised to learn that the former Chief Justice carried his activism into retirement.

In May 1998 Sir Anthony Mason delivered a paper at an Australian National University Law School seminar jointly sponsored by the Public Policy Program and the Centre for International and Public Law. The republic debate was in full swing, and Sir Anthony sought to demean and diminish the office of Governor-General and its role under the Constitution.

His paper contained a number of errors of fact and of law, and I have dealt with these elsewhere. But his most egregious error was to tell his audience that the Governor-General was precluded by the Constitution from attending functions in Australia when the Queen herself was present. He described this as a constitutional convention that was “robust and full of life”.

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Sadly, this former interpreter of the Constitution was quite wrong. Successive Governors-General have attended many public functions together with the Queen, and the Constitution contains nothing that would prevent this practice.

As evidence of his “robust” constitutional convention, Sir Anthony referred to the opening of the High Court building in Canberra by the Queen in 1980, an event at which the then Governor-General, Sir Zelman Cowen, had wished to be present but was not. But the Constitution and its conventions had nothing to do with the Governor-General’s absence. Sir Anthony’s so-called “robust” constitutional convention does not exist. It is the product of a fertile imagination. The so-called precedents on which he based it have never occurred.

Sir Zelman had indeed indicated to me that he wished to attend the opening of the High Court building. His life-long interest in the law gave him a personal reason for wishing to be there. Moreover, in addition to the Queen and the Duke of Edinburgh, as well as all of the justices of the High Court, the fact that the official party was to include the Parliament, represented by the President of the Senate and the Speaker of the House of Representatives, and the Government, represented by the Prime Minister, made it all the more appropriate that the Governor-General should also be present.

I knew of no constitutional or practical reason why the Governor-General should not be present, but I took the precaution of checking with Buckingham Palace. Not only did the Palace confirm my view: I was told that the Queen herself had said that she would be pleased if Sir Zelman were present. I so informed the ceremonial officers of the Department of the Prime Minister and Cabinet, and draft orders of arrangements were prepared which provided a place for the Governor-General in the official party. When the draft orders were submitted to Prime Minister Malcolm Fraser for his approval, it was Fraser’s selfish and self-serving whim and fiat, and not constitutional convention, that decreed otherwise. With the Governor-General absent, the Prime Minister would move up in precedence into the Governor-General’s position in the official party’s procession and in their seating on the dais.

So the Governor-General was told that there would be no place for him at the High Court opening. Sir Zelman was very hurt by this decision, but he did not want me to take the matter any further. He later publicly described Fraser’s actions as “wanting in principle and demeaning to the office of the Governor-General”. The next Governor-General, Sir Ninian Stephen, was more fortunate. The Queen visited Australia three times during his term of office - 1982, 1986 and 1988 - and on each visit the Governor-General attended a major function when the Queen was present.

Probably the most significant of these, at least from a constitutional point of view, was the opening by the Queen of the new Parliament House in Canberra on May 9, 1988. A painting of the occasion, showing the Queen addressing the gathering in the Great Hall and with the Governor-General seated on the dais behind her with all the other members of the official party, hangs in Parliament House, Canberra. Yet ten years later Sir Anthony Mason was to claim that such an occasion (and the many others like it that have occurred during the Queen’s visits to Australia) had never occurred, and could never occur, because he had discovered a “robust” constitutional convention that prevented it. What is more, on that occasion on May 9, 1988, the then Chief Justice of the High Court of Australia, Sir Anthony Mason, was present as an honoured guest and was seated in the very front row!

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First published in The Australian on July 17, 2007.



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About the Author

Sir David Smith was Official Secretary to five Governors-General from 1973 to 1990. He is a former visiting scholar in the Faculty of Law at the Australian National University. His book Head of State: the Governor-General, the Monarchy, the Republic and the Dismissal was launched in November 2005 by former Governor-General Bill Hayden.

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