Peter Faris QC describes Maxwell P as having been an “activist lawyer” before becoming a judge of the Victorian Supreme Court (last Friday). That is not a sin. And, as his Crikey article itself demonstrates, nor was it a secret. Maxwell’s strong public criticism of what he saw as inroads into legal rights and civil liberties that he expressed before his appointment, hardly make him Robinson Crusoe. Maxwell’s concerns about the overreach of many of the new anti-terrorism laws were shared, if more diplomatically expressed, by the Law Council of Australia and by a large slice of his senior colleagues at the bar. His appointment to the bench was widely welcomed — and not just by those who might be thought to share his personal world view.

And let’s be clear on an important point. Despite all the huffing and puffing and his view all three judges of the Court of Appeal were wrong in their decision, Mr Faris QC has never made an allegation that any of the judges were biased. Instead he says that in his opinion there may be a question about a possible “appearance of bias” in Maxwell P’s case.

However, it is beyond belief that the lawyers who appeared before the Victorian Court of Appeal would not have been aware of Maxwell P’s earlier controversial public comments. It would have been open, had they thought it right to do so, for the very experienced prosecution team to ask the judge to step aside. Mr Faris QC does not suggest they did so.

If the Crown did not raise the issue of Maxwell P’s supposed “appearance of bias” it does not surprise me — our whole legal system depends on our judiciary, whatever their prior personal views, and no matter how strongly they may have been expressed, once they take the oath of office, impartially administering the law.

Many excellent judges have been outspoken within the legal profession before their appointment. Some have been active in politics. Some have been conservatives, some to the left of centre. In a robust democracy we should not expect otherwise. 

Peter Fray

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