The American Bar Association (ABA) and the UK Bar Council have written to the peak body representing the Australian legal profession backing its vehement criticism of the proposals.

The LCA has relentlessly attacked the federal Government over its proposed anti-terrorism legislation. In a letter to the Prime Minister this month, LCA president John North said, “the legislation offends our traditional rights and freedoms”. He argued that the justification for their introduction is “meagre” and that it is impossible for the Australian community to know whether they are necessary.

He said that if the legislation was to be introduced, its development and passage through Parliament should be transparent and underpinned by a consultative process “that ensures our traditional rights and freedoms are protected and that the laws are accompanied by all appropriate safeguards”.

President of the ABA, Michael Greco, wrote in a letter to LCA president North, obtained by Lawyers Weekly, that he shares the concerns about the threats to the rule of law and procedural fairness in the proposed legislation.

Greco praised the work of the Law Council in its opposition to the Australian federal Government. “As I said in an address to the ABA House of Delegates last year, if we permit our freedoms to be eroded by well-intentioned but misguided government leaders we will give victory to terrorists that they can never otherwise achieve. Indeed, we will allow ourselves to be co-conspirators in giving them what they most seek: destruction of democracy,” he said.

As well, UK Bar Council chairman Guy Mansfield QC said in a letter to the Law Council’s North that he was “anxious to express support for the Law Council of Australia in its efforts to raise public awareness of the nature and implications of the proposed anti-terror legislation”.

The Australian legislation has a number of similarities to laws in the US, said Greco. “The orders and preventative detention orders being proposed in Australia … have corollaries in the United States. For example, the ABA has taken a firm position opposing the United States government’s designation and treatment of ‘enemy combatants’, who are currently subject to indefinite detention without a requirement that they be charged with a crime, given immediate access to counsel, and allowed to petition for judicial review of their status.

“The ABA urges that US citizens and residents who are detained within the United States as ‘enemy combatants’ be provided access to counsel and judicial review of their status. The ABA’s positions were validated in the decisions handed down by the Supreme Court of the United States on June 28, 2004,” said Greco.

The UK Bar Council was concerned that the new anti-terror laws include measures that offend the rule of law and procedural fairness. “There are other disquieting features of the proposed laws as well, but the imposition of controls of these kinds over person s who have committed no crime is an anathema to a justice system based on the rule of law and procedural fairness,” wrote Mansfield.

While the Bar of England and Wales acknowledged that terrorism can create very high levels of fear in communities, and that legitimate counter-terrorism measures must be taken, “protecting life and wellbeing must not lead to disproportionate measures”, said Mansfield.

“Every step taken in the name of our safety must be justified,” he said. “Elements of the rule of law should be inalienable. The rights of our citizens to their liberty and to freedoms of speech, movement and association should be protected by our parliaments rather than reduced by them. Governments are moving to address internal dangers with greater enthusiasm for repressive measures.”

Mansfield argued that even defendants charged with the most appalling crimes remain entitled to basic rights. “These are enshrined in international instruments.”

On the specifics of the legislation and comparing it to the situation in the US, ABA president Greco said that, in the area of trials conducted by the US military, the ABA urges that military commissions not be used. However if they are used, “that they be used in limited circumstances and in accordance with fair trial standards”.

He said the ABA has also called for all defendants in US military commission trials to have the assistance of Civilian Defense Counsel. As well, defendants’ confidential communications with counsel should not be subject to monitoring by the government, Greco said.

The importance of maintaining the rule of law were exemplified in a keynote address given by Justice Albie Sachs of the Constitutional Court of South Africa to the UK Bar Conference last month, said Mansfield. Justice Sachs made two important points, he said.

“First, human rights are not just there for good, law-abiding people; they are standards of basic humanity, a mark of civilised behaviour. A nation’s level of civilisation is to be judged not by the way it treats the majority of its citizens but what it does to its minorities, its criminals, its troublemakers, its misfits,” he said.

“Second, you cannot defend and promote a democratic system by taking away the very freedoms that made it a democracy in the first place. All that happens is that the country becomes unfree and unpleasant — and probably still unable to resolve the terrorism problem with which it started off.”