BRET WALKER
BRET WALKER: Well, it doesn't take all that much courage to dissent in a place like Australia. And the example you brought up of the so-called dissent in my last report is, I hope, a happy one, because it succeeded and they reversed that policy-- I don't flatter myself because of my dissent, or my dissent alone. But saying what you think, expressing your opinion about the merits of your country's laws, about the merits of international law, and about how either of those should be changed-- that really is the area in which one person dissents and another person delivers the government line. It's to be recalled, in most countries on Earth, and there's a government and something called an opposition. And this year's dissenter might be next year's lawmaker. And so dissent is really only expressing your opinion where you are confident from what you know or from what you expect that other people will disagree with you, and perhaps hold an opposite view. It is of the essence of democratic principled and scholarly consideration of laws, that there will be those who think they're fine as they are, those who think they're an abomination, and those who think they should be improved. That will never lead to just one voice with one opinion. INTERVIEWER: And within in the context of the surveillance, metadata and security, within the organisation itself, it's been said in the literature that independent monitoring will not necessarily be successful if there's not that healthy dissent within-- almost one that we never get to look at, to view. How do we encourage that level of professionalism where it is seen as-- and I'm drawing from the literature here-- where that internal dissent that is, away from the eye of the public, is encouraged. BRET WALKER: Well, it does help to bring in people like David Anderson in the United Kingdom and me here, whose careers do not depend upon favour from government, and who professionally and culturally inclined to say what we think, even when that is unpopular, or confronting for some of your audience. That's the first thing. The second thing is it's very important, as you say, functionally to define the role as one where you are not merely welcome to, but positively expected to canvas, consider and assess contrary views to those which promoted the laws in question, or which manifest in the laws in question. So testing and auditing and scrutiny-- all of those are ideas which positively involve considering hypotheses different from those that inspire the lawmakers. So if you have the right kind of person recruited-- and you don't have to be a lawyer, but certainly independent bars are-- accidentally, I'm sure-- perfect as throwing up people with a willingness to express so-called dissent. And second, you must frame the role in a way that is designed to encourage the expression of opposite views. Now that requires real confidence in the polity. The people who vote for the Parliament and the Parliamentarians who vote for governments need, at all levels, to be confident that this is the kind of role they want. It's a pretty new role in the world. There aren't all that many of them. They haven't been around for a long time. But I think there is a good future for such positions, so long as they're given security from government pressure, so long as they're given appropriate resources, and so long as the task they perform is a focused one. INTERVIEWER: Thank you. The second question-- you begin your last report by observing about non-response, essentially by the governments you reports, or we could take it at a higher level-- non-response to very office of the Independent National Security Legislation Monitor. Now moving on to the context of metadata and surveillance, emerging interpretations of Article 17 in the International Covenant on Civil and Political Rights require governments to justify. We can frame it as a form of dialogue, ongoing in terms of surveillance and metadata. So I take those two ideas, and we merge them when we ask, will the government be able to enter into dialogue? If it was, if it did have a response, I wonder what might that sound like? What is true dialogue and justification that you would be looking for in the perfect scenario? BRET WALKER: The best form that I'm aware of is also the most practical and cheapest form. And that is routinely and frequently to have the monitor appear before Parliamentary Committees, either the committees of one of the Houses or Joint Committee. And most countries with Parliaments or things like Parliaments have devices whereby subsets of the whole Assembly can take on particular subject matters, and examine people who might be thought to have something useful to say. An official person like the Monitor is, in my view an ideal person to be, as it were, hauled before the committee fairly frequently, and there to be examined, perhaps in a testing, even hostile fashion, in relation to what he or she has done, hasn't done, has said, or hasn't said. I really only had that once. And it was not hostile at all. Perhaps because I am an advocate in an adversarial system, I'm used to, if not hostile-- well, certainly occasionally hostile-- but certainly sceptical or testing dialogue between me and judges. And in my view, it enhances very considerably the standard of arguments, and the standard of the ultimate resolution after hearing argument for that to be so. It's very much like what we read about in terms of the mediaeval testing of scholars by final occasions. We still use the expression viva voce to describe those kind of tests. Now, Parliamentary Committees are obvious way to do it. But then, so also are public appearances. So giving lectures in the civil society segment, assisting academics and scholars by lecturing from time to time, specialist colleges-- National Security College, for example, in Australia-- they are all ways in which there can be something like dialogue. But you ask about dialogue, and I think the best dialogue is that which is unstructured, that is not restricted, and which involves pushing and pressing people, perhaps on both sides. I think that's all very practical and could be done. I regret that it wasn't done more. INTERVIEWER: Thank you. Your role was a fundamental one. It was to create trust and integrity, essentially, in the context of counter-terrorism laws. You were the first appointment. Now in the context of metadata and surveillance, again drawing from international observations, a core feature is going to be independent oversight of some form, in terms of metadata collection. I wonder, as you reflect back to your time in your role, what are the core features, skills, attitudes, characters, lessons learned to acquit the role of independent oversight? BRET WALKER: There are two forms of independent oversight to be considered. The one is the very familiar form. Many countries have it or an equivalent of it, and those are warrants, whether they're issued by judges, retired judges, or other people sufficiently independent to make it worth getting their warrant. That can't be undersold as existing essentially in order to bring the independence, and also to bring the supervision or oversight which is the safety check we have on these tremendous powers otherwise being given to the Executive. And all I can say in relation to that kind of independent oversight, that I'm very enthusiastic about, and have argued publicly ought to be required for access to quite a bit to do with metadata, all I can say about that is, you really must have independent judiciary-- a genuine, strong, independent judiciary. Not all countries have that. And so it's not easily generalised internationally. That's the first thing. I'd go so far as to say most countries do not have strong, independent judiciary. So that's a real problem internationally. The second kind of independent oversight is the kind of specialised, focused position that I had as Monitor and David Anderson had as Monitor. Committees of kinds in Canada, the United States, and the United Kingdom now, perhaps not quite the same. The chief lesson learned is that the very ample powers of investigation, coupled with top-secret clearance, is essential. I had it, and I know that I could not have done the job really at all, but certainly not to a degree that I would have regarded as appropriate, without that. The capacity to be able to ask anybody, however senior and however delicate their secrets, questions that I thought germane to my mandate, was, without any doubt, at the heart of matter. And Australia's legislation for the moderate's position is very good, I think, in that regard. But the second thing is that you do really need to be given the wherewithal to push back as this independent supervisor, to push back against the very strong combined force of ministers, their advisers, and the bureaucracy. The ministers are actually the easiest, I think, because they understand rather more overtly the need for the independent role. I'm not so sanguine about the real acceptance of such roles among the what I call full-time professional bureaucracy. But that's all right, so long as the monitor has the power, and can wield it, and is prepared to wield it. But the Monitor literally has to sit somewhere, as well as figuratively has to sit somewhere within a bureaucracy. And those are details. They sound trivial and housekeeping, but they are important details that need to be regarded. Literally where is the Monitor going to be? I refuse to have, in my professional chambers, secret material, because I didn't wish to add security risks. And so I travelled to an office that I had in Canberra. I'm content that it was sufficiently secure. But you need staff who, I believe, have to be dedicated only to that role. There must be no divided loyalties. It follows, then, you might be surprised to know that one of my last recommendations was that nobody should ever be able to be reappointed to such a position. I really do think that the partial analogy with judicial tenure under the British system, the so-called Act of Settlement tenure, ought to be reproduced in such positions. You should have nothing to fear while you are of good behaviour during your term. But neither should you have anything to hope for. Now, I was perfectly happy to finish off doing this job. But I can well understand how some people would be very anxious to continue. I am not casting slurs on my colleagues when I say I think there is too much risk of subliminally wishing to impress, perhaps oblige, those responsible for appointment selections if there is a possibility of reappointment. So all of that is a rather formal way of saying there must be real independence.
PRIVACY, INDEPENDENT REVIEW AND DISSENT
REBECCA LAFORGIA: The right to privacy under Article 17 of the International Covenant on Civil and Political Rights also requires in the context of metadata and surveillance that there be independent review. The special rapporteur, in his concluding summary, notes that the independent oversight must be adequately resourced, and it must be mandated to conduct the review in terms of surveillance. Article 17 of the covenant requires this level of independent review. And the independent reviewer-- whether they be individuals, tribunals, courts-- will, for example, inevitably find tensions and mistakes in terms of surveillance activity. Now, this will arise either in its practice or so-called mission creep. And the identification of these mistakes will, if there is truly independent review, be openly and publicly responded to by the government, a dialogue. For independent review, there needs to be public information and acknowledgement of where mistakes have been made, emphasising that dialogue with the government. Literature and the UN reports also speak about standing for individuals that feel that their metadata has been incorrectly used. A writer, Mr Frank Moorhouse, who has written a recent text on surveillance in the context of Australia, has commented that independent review requires a certain culture as well within the security organisations. And I quote, "A high degree of professionalism creates a working and social atmosphere where dissent is an honourable thing." To create that professionalism, there would have to be a culture which encourages internal dissent and difference of opinion. This is not the whistleblower. The internal dissenter which Moorhouse is referring to are internal to the organisation, independent thinkers within the organisation who are questioning, and this questioning is seen as honourable and necessary. They are essential to independence of the organisation. The right to privacy in the context of metadata and surveillance presupposes such a culture while not explicitly saying so and, we could make an argument, it is part of an effective independent review. In summary, metadata and surveillance balance is political and involves power. International human rights provides a way of rebalancing this power, and stabilising the debate around a constantly evolving technology. The right to privacy provides a language that is not subject to the latest technology innovations, but rather constantly demands of the state wherever they're doing the metadata surveillance an ongoing public dialogue and independent review.
No comments:
Post a Comment