In the Jihad Jack Thomas appeal, the presiding judge was President Maxwell of the Court of Appeal. In my opinion, an issue arises as to whether Maxwell P was judicially biased. Bias here means an “appearance of bias”, not actual bias.

If Maxwell P is held to have been biased, he is disqualified, the decision is overturned and the appeal is reheard. In the meantime, Thomas would return to jail to continue his sentence (unless appeal bail was granted).

Before his appointment, Maxwell QC was an activist lawyer. The difficulty in appointing career activists as judges is that the new judge must be cautious to avoid deciding any cases which may be associated with his pre-appointment activism.

The question to be decided here is: did Maxwell P cross the line?

Thomas was convicted of offences against the new “anti-terror” laws. As President of Liberty Victoria, Maxwell QC conducted a very public campaign against those laws and also against Prime Minister Howard. He publicly likened the laws and the Government to Stalinist Russia – “more redolent of the KGB than of Australian civil society” and “redolent of Stalinist Russia”.

Remember, these are the very laws that Maxwell P has sworn to uphold and is obliged to apply in the Thomas case.

Maxwell QC made allegations that the Howard Government was deliberately misusing and exploiting fears of terrorism to scare the public and to subdue opposition.

Worse still, Maxwell QC was at the centre of a campaign to have Prime Minister Howard and his senior cabinet members prosecuted for war crimes in Iraq. In 2003, he was appointed to a “Ad hoc Committee on War Crimes” to collect the evidence for this prosecution.

To the best of my belief, Maxwell P has not sought to have Mr Howard, the Prime Minister of Australia, prosecuted for war crimes. But I could be wrong.

At the Thomas appeal, two organisations, Amnesty International Australia (AIA) and The Human Rights Law Resource Centre Ltd (HRLRC), applied to appear as amicus curiae (friends of the court). They filed extensive written arguments in favour of Thomas, arguments subsequently adopted by Thomas’ counsel. The applications were refused by the Court.

Maxwell P has since told Crikey that he is a member of AIA. (Specifically, he has a family membership)

On the 14 March 2006 (that is, after the Thomas conviction and when it was known he would appeal), President Maxwell made a speech at the launch of the HRLRC. Maxwell P described himself as one of two people involved in “developing and finally implementing this concept” – the other person being Philip Lynch.

Lynch, the Director of HRLRC, filed an affidavit at the appeal in support of the application and of Thomas.

As far as I am aware, Maxwell P made no disclosure of any of the above matters at the hearing of the appeal.

Questions arise: is Maxwell P disqualified for bias? Was Thomas’s appeal wrongly upheld?

This piece is a brief summary of a longer, fully argued piece available here.

Peter Fray

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