The sub-Committee continued to engage with the State Law Advisors on the Working Draft of the Protection of Personal Information Bill (the Bill). discussed the latest version of the Protection of Personal Information Bill. There were extensive deliberations on the impact of this Bill on the Promotion of Access to Information Act. The sub-Committee unanimously agreed that there was a need for a review of the Promotion of Access to Information Act, but that it was not within the mandate of this sub-Committee to do so, nor was it possible to conduct a review and deal with this legislation simultaneously. A Member suggested that there was no urgency in passing this Bill, but the sub-Committee noted that it hoped to have the Bill passed before the end of the year, to address the continuous exploitation of consumers. Of particular concern to the sub-Committee was the transfer of functions under the Promotion of Access to Information Act, although it was unclear what this would entail, and what capacity and resources would be needed by the Regulator. In respect of Clause 36, the State Law Advisor noted that a conflict of interest provision had now been included. Members discussed whether the duty to disclose should be extended to all members of staff, and indicated that difficulties with this Bill included that it would apply to a range of sectors, so it might be necessary to create forum committees. A suggestion was made that perhaps regulations should apply to this situation, and it was agreed that the Department would look further into it.
Members were happy with the revised wording of Clause 38. However, some were not happy with the wording around the approval processes, feeling that Parliament should not micro-manage the Regulator.
A draft provision had been included to deal with fees. Some Members questioned whether fees should be charged, while others pointed out that this applied in other jurisdictions. The Committee would look at that clause again. The Committee summarised that this Working Draft would now be updated to include changes proposed in the meeting. The Committee still needed to give attention to the clauses dealing with journalists, would engage with the South African Human Rights Commission on the Promotion of Access to Information Act, and with the Department of Trade and Industry on the possible impact of the National Credit Act on the Bill.
Protection of Personal Information Bill B9-2009 (the Bill): Deliberations
The Chairperson noted that the sub-Committee would engage with the State Law Advisors on the outstanding issues around the Protection of Personal Information Bill (the Bill).
Ms Ananda Louw, State Law Advisor, Office of the Chief State Law Advisor, said that the purpose of the notifications clause in the Bill was to provide direction to the Regulator on who was to be regulated. It had been envisaged that the notification would be done electronically. The exemptions set out in the Promotion of Access to Information Act (PAIA) would come in handy, and would be applicable to this Bill. The Department of Justice and Constitutional Development (the Department) thought that there would be an overall review of PAIA, and this Bill would be taken into consideration when such a review was done. The Regulator for the Bill would, however, have to be in place before any review and possible amendment of PAIA.
The Chairperson asked if the implementation of PAIA, as it currently stood, had been considered by the State Law Advisors. An example was raised around the manuals that were sent to the South African Human Rights Commission (SAHRC), and he asked whether these would be sent to the Regulator of this Bill.
Ms Louw replied in the affirmative. She added that there was not a review of PAIA.
The Chairperson interrupted and said that he was not asking about a review of PAIA.
Ms Louw replied that the existing functions of PAIA had been considered and no changes had been envisaged.
The Chairperson again asked whether the existing functions of PAIA, and what they would entail for the new Regulator – around, for instance, finances and office space – had been looked at.
Ms Louw said that they had not, as the Department had envisaged that there would be changes.
Dr M Oriani-Ambrosini (IFP) said that PAIA had to be reviewed and changed now.
Ms M Smuts (DA) cautioned against reviewing and changing PAIA now, pointing out that this process was bound to take time, and she would not like it to hold up the process of passing this Bill.
The Chairperson agreed that there was merit in the proposal for a review of PAIA, but also agreed that it would take a long time. He said that it was possible to pass the Bill, and the implementation of its provisions would simultaneously transfer PAIA functions to the Regulator. The critical question would then be what this transfer would mean, from a resources perspective. The SAHRC would be asked what it was doing in terms of PAIA, how many staff were employed by it who were working on this Act, and what the costs of this were. He said that he had gained the impression that within SAHRC itself there was some difference of opinion as to whether PAIA should be reviewed or repealed. A full-blown review of PAIA should be avoided, since the Sub-Committee had not been given that mandate.
Dr Oriani-Ambrosini said that a review of PAIA had to take place “now or never”. He thought that this could be done separately from approval of this Bill. He thought that relying on the feedback from the SAHRC would be tantamount to asking someone to review his or her own performance. There had been a lack of proper implementation of PAIA in the last ten years.
Ms Louw said that she was in support of the proposal for a review.
The Chairperson said that the Regulator could not be given functions that could not be implemented. He asked if the Department was aware of any problems experienced by the SAHRC in regard to the implementation of PAIA.
Ms Louw replied that the Department was aware that the SAHRC had financial and capacity challenges around the implementation of PAIA.
The Chairperson said that if the Regulator was going to be given PAIA functions, then it would not be ideal for the legislature to simply transfer the problem.
Mr Henk du Preez, Senior State Law Advisor, Department of Justice and Constitutional Development, said that the powers given to the SAHRC in relation to PAIA were incomplete, as privacy legislation still had to be introduced. Once the Bill became law it would be possible to examine what was still required, and determine if a full blown Information Commissioner would be needed.
The Chairperson closed discussions on this matter, saying that there might be a need to review PAIA, but it was not up to this Sub-Committee to do so. However, this Committee noted its concern that the Bill transferred PAIA functions from the SAHRC to the Regulator. The Sub-Committee needed to know what this entailed insofar as the needs of the Regulator were concerned.
Dr Oriani-Ambrosini suggested that a period of two years should be set aside to finish the Bill and this would then provide ample time for the review of PAIA, and allow for the completion of a polished product that would be to everyone’s satisfaction. He thought there was no urgency in passing the Bill.
The Chairperson said that the target was that this Bill should hopefully be passed before the end of this year.
Ms Smuts added that there was a need for the protection of personal information as consumers were being exploited on a regular basis.
Clauses 36A to 36C
Mr du Preez referred to page 27, Clause 36A of the Working Draft of the Bill. This clause dealt with the vacancies. The sub-Committee had previously agreed that Clause 36A would be a substantive clause. The sub-Committee had also previously requested inclusion of a conflict of interest provision. He pointed out that a proposal for this appeared at the bottom of page 27. The proposal imposed an obligation for any member of the Regulator to divulge a conflict of interest, where it existed. According to Clause 36C(3), such a member would then not be able to sit on the deliberation of a particular matter linked to that conflict of interest.
The Chairperson referred to Clause 36C(1) and asked why it was limited to the persons appointed by the Regulator in terms of Clause 38(5). He thought that this should apply to any staff member of the Regulator.
Mr du Preez replied that this was not envisaged, and this was exactly what the Department wanted to raise with the Sub-Committee. The Department had recommended that it might be useful to extend this duty to disclose to ordinary members of staff. He said that perhaps staff could report to the Chief Executive Officer. He said that there were concerns about the sanction for non-disclosure, and what the result would be if disclosure did happen.
Ms Smuts did not think it would help matters if staff were to report to the Chief Executive Officer. She said that one of the major difficulties with this Bill was that it was not necessarily known what was the relevant sector covered by the Bill. Another difficulty was that the Regulator would deal with a whole range of industries. There might be a need to create forum committees that would deal with investigations, assessment functions, and pre-investigation proceedings. These could be lead by a member of the Regulator’s office, or similar office-bearer. The staff would report to a person leading a particular committee, which in turn reported to a relevant leadership.
Dr Oriani-Ambrosini suggested that the word “material” should be inserted before the words “direct or indirect” in Clause36C(1). At the end of that sentence, a comma should be added, followed by “as prescribed”. This would allow the matter then to be dealt with in the Regulations.
The Chairperson asked that the Department should look into these suggestions. This section clearly needed more work.
Mr du Preez responded that if this suggestion were to be followed, then it would result in the Regulator prescribing for himself or herself, as the Regulator dealt with all Regulations.
Dr Oriani-Ambrosini interrupted and said that it was already common practice in respect of internal audits, since Ministers of Departments issued Regulations that dealt with internal audit matters within those Departments.
Mr du Preez moved to Clause 37. He pointed out that there was only one highlighted matter, which appeared in bold. There had previously been discussions around the inclusion of a provision that would allow the Regulator to possibly employ civil servants.
Mr du Preez noted that Clauses 38(1)(a) and (b) included the words “or secure the secondment of such persons in terms of subsection (4C)”. Subsection (4C), on page 29, provided that “The Regulator may, in the performance of the functions contemplated in subsection (1), at his or her request, be assisted by officials in the Public Service seconded to the service of the Regulator in terms of any law regulating such secondment”
Ms Smuts said that she was happy with the provision.
Dr Oriani-Ambrosini agreed and added that a compromise had been reached.
The Chairperson expressed concern about the wording around the approval process, which said that if the National Assembly disapproved of the determination, it would cease to be in force. He questioned whether it was indeed intended that something should be in force until disapproved. This provision was about the National Assembly approving the salaries of staff members, and he questioned why the legislature would want this responsibility.
Mr du Preez replied that Parliament approved the whole budget of the Regulator, and this included he salary bill.
The Chairperson said that it was acceptable if the legislature was involved in the salaries, conditions of employment and remuneration of members of the Regulator. However, he did not think that the legislature should, for instance, be involved in the salaries of lower-level staff. He thought that Clause 38(4B) was unnecessary, and it provided for micro-management of the Regulator.
Dr Oriani-Ambrosini suggested that the wording “consistent with the Public Protector” should be removed.
Ms Smuts agreed.
Mr du Preez said that the provision would then be deleted, since Parliament determined the budget in any case.
Mr du Preez then moved on to page 34. He noted that the phrase “Information Protection Officer” had been changed to “Information Officer”, following the request of the sub-Committee.
The Department had been requested by the sub-Committee to provide a provision dealing with fees. The draft provision that addressed this request was Part C, Clause 56B.
Dr Oriani-Ambrosini said that the provision did not feel right as it allowed officials to determine the fees as they saw fit.
The Chairperson asked why Clause 56B(2)(a) had been inserted.
Mr Du Preez replied that 56B(2)(a) reflected the initial thought-processes behind the whole provision. The Department conceded that the provision perhaps was not necessary, but had included it to test how the sub-Committee would view the provision.
Dr Oriani-Ambrosini said that he had a problem with the Regulator being self-funded. There should not be any fees.
Ms Louw said that it was important to keep in mind the motivation for the fees. It was of concern that if the fees were to be part of the notification process, then the Regulator would have a lot of work to do.
The Chairperson suggested that that sub-Clause should remain. However, he felt that subclause (2)(a) did not assist the sub-Committee.
Ms Louw said that this was merely a provision to allow for the fees.
The Chairperson asked which other countries allowed for fees.
Ms Smuts replied that one such country was
The Chairperson suggested that this should be left as it was for the moment.
Remainder of clauses
Mr du Preez said that any further amendments through the rest of the Working Draft were of a technical nature only. There were also options that had been provided by the Members individually.
The Chairperson summarised that the Working Draft would be updated to include the changes that had been proposed in the meeting. The clauses dealing with journalists needed further engagement. The SAHRC would engage with the Sub-Committee on what was needed to implement PAIA. The Department would engage with the Department of Trade and Industry on the possible impact of the National Credit Act on the Bill.
The meeting was adjourned.
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