Protection of Information Bill: Minister of State Security's briefing
Chairperson: Mr C Burgess (ANC)
Date of Meeting: 06 May 2010
The Minister of State Security and his delegation briefed the Ad Hoc Committee on issues relating to the revised Protection of Information Bill. This Bill, which sought to amend the Protection of Information Act of 1982, would address a number of fundamental issues, namely the protection of State information before courts and the relevant procedures, would specify various offences, including espionage and hostile activities, would name minimum sentences for the listed offences, set out classification and declassification procedures, including the transferring of declassified information to National Archives, and outlined the consequences of improper classification of information. The Bill would further make provision for the incorporation of the Minimum Information Security Standards (MISS) which was a Cabinet guideline into legislation, thereby elevating the legal status of its provisions and procedures. Within 12 months of the date on which the Act would come into effect, the Minister for State Security would have to make National Information Security Standards, prescribing broad categories of information that may be protected.
Members asked why in the current revised Bill a provision relating to the defence of public interest had been omitted. A question was also asked as to what would happen if other organs of State failed to come up with departmental policies and procedures consistent with the national standards within 18 months of the commencement of the Act. It was also asked whether the Act would need to be amended at a later stage to stay in line with the current restructuring process within the Ministry. Lastly members asked the Department to come at a later stage with a full briefing on the area of the challenge of information peddling and how the new Bill would provide a remedy or make it easier to prosecute information peddlers.
The Chairperson opened the meeting and announced that Ms T Sunduza (ANC); Ms A Dlodlo (ANC) and Mr M Maynier (DA) were absent and unable to attend. He then handed over to the Department for the briefing.
Dr Siyabonga Cwele, Minister of State Security, briefed the Ad Hoc Committee on Intelligence on the current version of the Protection of Information Bill (the Bill). The Minister reported that this version of the Bill was an update of the previous Bill, which had been withdrawn after it emerged during the public submissions that there were certain clauses which were either deemed confusing or were unlikely to be able to withstand Constitutional scrutiny. As a result, the Bill was taken back to Cabinet to be streamlined. It sought to bring about a coherent approach to government’s efforts to protect information in the hands of the State. There were attempts to harmonise the many pieces of legislation, which at the moment were catering for what would be brought together under the new Bill.. A central feature of the Bill was to strike a balance between, on the one hand, living up to the openness envisaged in a free and democratic society, and, on the other, achieving the necessary secrecy which was required for State security.
The Minister also elaborated that the Bill would repeal the 1982 Protection of Information Act. This was way outdated in terms of the challenges now faced as well as the fact that certain sections in the 1982 Act would not stand up to scrutiny in the present day Constitutional order. The new areas introduced in the Bill created clearer guidelines, some of which were already contained in the government policy document called the Minimum Information Security Standards (MISS). The MISS guidelines document was just a government policy, and was currently not enforceable in law. The decision to incorporate MISS into the Bill was to ensure that the guidelines would become enforceable in law. The Bill would also regulate the handling of certain classified information in the hands of the courts. Previously, such information was not regulated. Another key area which the Bill would directly address was how to deal with “information peddlers”, who were defined as those who deliberately gave false information to the State.
Adv Premjith Supersad, Legal Advisor: State Security Agency, elaborated that, as the Minister had pointed out, the need to draft the Bill was triggered by the deficiencies in the current Act and other legislation that sought to protect information in the hands of the State. The Bill, over and above developing a coherent approach in dealing with this information, now also sought to set out the procedures for handling State information during court proceedings, to set out the process to be followed in the classification and declassification of information and to give clear and unambiguous guidelines on what actions constituted offences in terms of the Bill, and to prescribe minimum sentences. Public Interest and National Security were again highlighted as the two most important guiding principles. Advocate Supersad said the current Protection of Information Act of 1982 did not provide sufficient protection to the State against information peddlers and current trends concerning espionage. The Bill, as revised, also addressed the issue raised about a public interest defence being a possible violation of the Act. It was agreed that the new version should not contain the defence clause at all.
Mr L Landers (ANC) asked for clarity regarding the removal of the public interest defence clause from the revised Bill. That defence had been a part of the original draft, and he asked on what basis a decision was taken to remove it. He also questioned whether the removal of that clause would preclude Defence Counsel from raising such a defence in court.
Adv Supersad clarified that the “defence of public interest” was a long standing common-law defence which commonly was used in defamation cases. Its removal from the Bill did not preclude any Defence Counsel from raising it in Court. An additional caveat was inserted in the Bill to require at least three judicial officers to hear cases that involved information protected under the Act, to ensure that a proper and correct decision was arrived at.
Mr Landers noted that all organs of State would be required, within 18 months of the commencement of the new Act, to establish departmental policies and procedures consistent with the national standards. He asked if all organs of State were in a position to comply with that requirement, and what would happen if any of the organs of State failed to comply.
The Minister said that it was provided that if other State organs failed to comply with the 18 months period, then his department had twelve months to develop national standards, which would then be used by every organ of State that might not have formulated its own standards within the 18 months following the commencement of the new Act.
Mr Landers asked for clarity on the presentation. He noted that reference had been made to the National Intelligence Agency (NIA). He noted that there was currently a restructuring process under way within the Ministry, to create a single department. He asked if the particular reference to the NIA would have to be amended once the restructuring process was completed.
Adv Kobus Meiring, Legal Advisor: State Security Agency, said that indeed the reference which Mr Landers had pointed out would be amended, once the National State Security Bill was finished. At the moment, the Department was still operating under NIA.
Ms H Mgabadeli (ANC) said the term “public”, when referring to matters of security, was confusing. She asked if the legal team could give an example as to what would be regarded as “public” in this context, and asked if unions, human rights organisations and courts would be regarded as the appropriate “public” with whom there would be interaction, for the purpose of public participation.
Adv Supersad said any national legislation was open to public participation as required by the Constitution, therefore no member or sector of the public was excluded. As to the content of the comments that would be received and what would be done with those comments, such questions would be addressed at a later stage.
The Minister added that an attempt would be made to reach out to the ordinary citizens upon whom the Act could have an impact. At the same time, views from specific interested parties, such as the heads of courts, were most welcome. He added that his Department was working very closely with the Department of Justice and Constitutional Development in streamlining the Bill
Ms Mgabadeli said the reference made to the MISS document, and the reference to it being a “Cabinet” document was very confusing. She asked what it meant for a Cabinet policy document to be made public, or to have its provisions apply to private citizens.
The Chairperson explained to Ms Mgabadeli that because MISS was a Cabinet policy document, it was not enforceable in law, so that individuals who violated anything in the MISS could not be prosecuted. What the Bill sought to do, therefore, was to incorporate the provisions of the MISS into law (an Act) so that it was easier to enforce and to prosecute any such violations. The previous lack of punitive measures created problems for the State, as the MISS regulations were abused by unscrupulous individuals. All that would change once the Bill became law.
Mr T Coetzee (DA) asked Mr Landers to repeat his question, saying he heard the answer given to it concerning the public interest defence but did not hear precisely what the question was about.
The Chairperson attempted to explain that Mr Landers had asked whether the decision to exclude public interest defence from the Bill meant that a defence lawyer would be prohibited from raising that defence in court. For instance, a person who leaked sensitive classified State information could argue that he did so because it was in the public interest to know about the information. If this defence had been retained as a clause in the Bill, it would have been stating the obvious, because the defence was well known and used in courts, especially in defamation cases. He reiterated that whether or not the Bill contained any reference to the public interest defence, that defence still existed and could still be invoked by Counsel in court.
Mr Landers suggested that the Committee should target specific human rights groups such as the human rights commission or the public protector to come and give an input to the Committee on the Bill.
The Minister agreed with Mr Landers that it would be correct to do so
The Chairperson asked the Minister to give his view whether the Bill adequately addressed the challenge of information peddlers. He also asked if it would be possible to have a presentation specifically aimed at acquainting members with details as to why information peddlers had created the need to reform the laws so as to provide protection for the State.
The Minister assured the Committee that his Department would indeed welcome the opportunity and suggested that the Committee must simply tell the Department when it would be convenient to give the briefing.
The Chairperson agreed that it would be even more helpful if the presenters would include a listing and explanation of the string of case law that had grappled with the area of protection of information, with particular reference to information peddlers.
Ms Mgabadeli asked the Chairperson to explain how frequently this Ad Hoc Committee would be meeting to deal with the Bill.
The Chairperson reiterated that public hearings would be conducted during the June period, and soon thereafter, in July, the Committee could short-list who would be invited for public hearings, followed by clause-by-clause deliberations. The estimated time for the finalisation of the Bill was around end of August or beginning of September.
The Chairperson thanked the Minister and team for a very helpful and clear presentation.
The meeting was adjourned.