Judicial activism is alive and well, even in retirement.

TO MARK the High Court's centenary on October 6, 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" (see Quadrant, January-February 2003). 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 forty-seven 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 of Quadrant might be interested to know that former Chief Justice 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 May 11, 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 section 2 of the Constitution but ignored the existence of the all-important section 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 fourteen visits to ...