PRESIDENT OF the Victorian Court of Appeal and presiding judge in the acquittal of Jack Thomas, Justice Chris Maxwell, came under fire from some sectors of the media who questioned the appropriateness of him having heard the case.
The Australian suggested Maxwell’s past — his term as president of Liberty Victoria and appointment to the Bench by Steve Bracks’ government, with ties to the civil liberties lobby — created a perception of bias in the Thomas decision. This was bolstered by Maxwell’s previous public condemnation of the new terror laws, the paper said.
Stephen Shirrefs, chairman of the Criminal Bar Association in Victoria, said that Maxwell is “an independent judge, and he brought an independent mind to bear on the issue”.
According to Shirrefs, Maxwell’s personal views have nothing to do with his ability to give reasoned judgements on issues of law, just as judges with opposing views are similarly able.
“Because he in the past has been president of Liberty Victoria simply means he has a certain ideology. But does that mean as the converse of that, you should therefore have judges who go the other way, and think that perhaps we should have all sorts of rules and regulations that point toward the right?”
Spencer Zifcak, associate professor of Constitutional Law at La Trobe University and a committee member of Liberty Victoria, also objected to the notion that Maxwell’s role in the Court of Appeal decision was inappropriate.
“This was a bench of three; there’s no suggestion that the other two had any particular connection to the Labor Party, and it was a unanimous decision of all three, so I think the criticism is not just opportunistic, but misguided,” he said.
“There are many appointments to the courts that have been made by the Howard government with which I disagree. However, I now respect the decisions that those people make, given that they have assumed legal office, and I presume their good faith in making those decisions.”
Another academic, Andrew Lynch, director of the Terrorism and Law Project of the Gilbert & Tobin Centre of Public Law at the University of New South Wales, said that “some of the coverage in various outlets to the Court of Appeal decision, I thought, was pretty vitriolic, a lot of it quite personal to some of the members of the Court of Appeal, and irrelevantly so”.
Lynch found the decision “an entirely acceptable one. The evidence that had been used to secure the conviction of Thomas in the Supreme Court had serious problems, and it was certainly open to the Court of Appeal to make the finding that they made — and I don’t think a terribly surprising one either.”
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