Draft Implementation Plan for Protection of Personal Information Bill: informal briefing

Meeting report

The Committee elected Mr M Gungubele (ANC) to be the interim Chairperson in the absence Mr N Ramtlodi.

Briefing and discussion of the DOJCD's draft implementation plan
Mr Deon Rudman, Deputy Director General, Legislative Development: DOJCD, commented that the final draft of the implementation plan would be dependent on the Committee's final decision on what the Bill should look like when finalised. He requested that they not deal with the costing of the Bill at this stage but rather the following week or whenever it was convenient for the Committee. He had the report of the consultant with him, but there were a few problems with it that needed to be addressed before it could be tabled.

The Chairperson asked the Committee to advise him on what to do as it appeared that on the costing report would only be tabled in the following week. The draft implementation plan was a draft and was therefore not a matter which they could respond to until it was finalised.

Mr J Jeffery (ANC) commented that the current meeting was not meant to be an exhaustive reporting session and the input given on the costing had been useful and he did not think that it was necessary for the Committee to ask for more detail because if they ended up with the wrong set of figures floating around it would not be of any help and they could wait to see what was happening.

The Chairperson summed up the issue saying that the lightness of the report was consistent with the purpose of the meeting and the Committee would allow the Department's request.

Mr Henk Du Preez, Senior State Law Adviser, DOJCD, presented a six page draft implementation plan to the Committee. There were four important components to the implementation of the Bill as indicated by the columns in the draft document. These included certain general functions that would be formed and responsibilities with respect to the implementation of the Act as a whole.

The draft document included details about what the Department envisaged would need to be done about the regulations for the Act. The requirement for regulations would have to be factored into the implementation plan. The important section detailed the steps that would have to be taken to implement the Act itself. The one difficulty that they had at the moment with compiling the implementation plan was the order of the actions that had to take place and the time frames concerned. They would therefore have to revisit the implementation plan before the legislation was finalised.

Mr Jeffery suggested that the plan should not start with the date of approval by Parliament. He thought that this should start from the date of assent by the President although he did not know how long that process would take. There was also a difference between the President assenting and the Act coming into effect. It would be useful therefore to know how long the Act would take to come into effect. This could take longer if they decided to institute some kind of parliamentary approval of the regulations.

Mr Du Preez responded that he did not think that the time frame between the two dates would be that substantial. For purposes of drafting the regulations, for example, one did not need to wait until the President had assented to the Bill to begin a first draft of the regulations. There had been instances in the past when the Department had very little time to draft substantive regulations such as when the Sexual Offences Act had been passed. The important thing therefore was to identify the starting point, that is, where when one could begin to draft the regulations. In terms of their provisional planning, they envisaged that some and not all aspects of the Act would be implemented immediately whilst other sections would have to be implemented over time. They were confident that the 12 month period, for which they had made an allowance, would be feasible.

Mr Jeffery asked a question on the R15 million set aside for the first year of implementation and the R20 million for the second year. He asked if these figures were for the current financial year. This would involve the initial cost of setting up of a regulator and the drafting of regulations and probably, some kind of a civic education campaign.

Mr Rudman responded that the R15 million, according to his understanding, was for 2010 and the R20 million was for 2011. He was not sure whether they would require any funds for the current financial year. However if that was the case then they would ask for the Committee's indulgence in that regard when they discussed the costing of the legislation in the following week.

Mr Jeffery responded that if the R15 million rand was in next year's budget, then he hoped that next year's budget had not been finalised yet, otherwise it could be overlooked. He also wanted to raise a question, which could be answered later that the budget estimate for the establishment of a regulator had been R17 million and he wondered how the R15million for implementation for the first year would cover that considering that regulations would be done during that period. He imagined that the R15 million was probably a bit of a “thumb suck”. There was a need for the Department to come back with more detail in the following week on this. If only R15million was available, this meant that in terms of regulations, they would not be able to fully establish the regulator in the first year of implementation.

The Chairperson commented that the Department would have to be bound by its last word on this issue to the Committee in the following week.

Mr L Landers (ANC) commented that there was no role for Parliament mentioned in the Bill about the drafting of the regulations. He commented that regulations were drafted by the Minister and there was no involvement by Parliament. They had been grappling with this problem since 1994 and he felt that at the very least, at some point in the process, the regulations could be tabled in Parliament so that the Portfolio Committee could at least have sight of them and make any necessary amendments and comments.

Mr Jeffery commented that there was a document that would be provided by the researchers, which highlighted the crucial issues that they had to engage with, and the parliamentary approval of the regulations was one of them. He proposed that this point be deferred until then the presentation by the researchers.

Ms M Smuts (DA) suggested that they could also discuss the possibility of a fully independent regulator, which would be a rule making-body as well. She commented, however, that all of that work had to await the finalisation of the Act.

Dr M Ambrosini asked what the Committee would be doing, in relation to the briefing by the Parliamentary researchers.

The Chairperson responded that he understood that the Committee had agreed that the Parliamentary researchers would take them through their document and they could then make clarifications wherever necessary. The real consideration of the submissions would take place the following week. This would be an information empowerment process.

Dr Ambrosini submitted that the summary of submissions document of the researchers was sufficient on its own because it was a well prepared document which had taken commendable effort and it was self-explanatory. Members had the document and they could read it in their own time.

The Chairperson responded that not all members in the Committee were as well versed in legal matters and they needed to have some matters explained to have a better understanding of the contents. The Committee admitted any member without consideration of their legal background because it was a political body and not a Committee of legal experts. What they were concerned with was the outcome of the process and they wanted to ensure that there was an intense process to vindicate the interests of the people whom they represented.

Mr Jeffery suggested that perhaps as a middle way, they had to see the purpose of the research document as identifying issues that were going to require attention. The Committee would deal with the research document in the following week. However, there could be other issues that the research unit might have left out that could be picked up as they took the Committee through the document's headings. For instance, a member had already pointed out an issue about parliamentary approval of the regulations. This would enable the Committee to identify issues and point them out to the researchers so that they could be dealt with more thoroughly.

Briefing and discussion the Parliamentary Research Unit : summary of submissions
Ms Christine Silkstone, Parliamentary Researcher, mentioned that the document provided a summary of the issues that that had emerged from the public hearings and their own research. There had been many submissions that had made comments about whether there had been sufficient time for public participation. Another issue had been the definition of “protecting”. Some of the submissions had argued that the definition was too wide and that it could have unintended consequences for the media. There was also the matter of including juristic persons in the Bill. This extended the protection of privacy of information to juristic persons.

Dr Ambrosini commented that the definition of “personal information” had also been an issue during the public hearings and he suggested that it be included as well.

The researchers also highlighted other issues to the Committee before a discussion commenced.

Mr Jeffery commented that he understood what the research unit had done in compiling the document, where they identified broad issues at the beginning and then the more specific details in a table at the end. He thought that some issues which had been inserted at the beginning of the document actually belonged in the table at the end. The issue of journalists was a big issue, which he felt was deserving of a category of its own. The question of the relationship with the Promotion of Access to Information Act (PAIA) was also a key issue, which he felt had been drowned. It was a big question, which essentially had to be standing alone.

The Committee decided that after the summary had been revised in accordance with their recommendations, the Department would be called on to respond to the submissions that were made at the public hearings. The submissions that were supplementary to the submissions made at the public hearings were not to be treated at the same level.

Mr Rudman responded that they would try to the best of their ability to respond to the documents that had been submitted at the hearings, although they would have liked some more time to do that. There could be some areas where they would want to do a bit of further research, which could take longer than the following week.  They would therefore respond to the bulk of the input but there could be some areas where they required a bit more time.

The meeting was adjourned