Clause 17(1)(d) should have a sub paragraph (iii) added to it which should read: “clear, present, corroborated and objective harm or danger thereof directly caused by the disclosure of the relevant information”. The amendment in clause 17(3) basically said that if the cat was out of the bag, then whoever came cross the information should not be subject to prosecution. The interval period for reviewing information should be reduced to 7 years, reviews should be once a year and if this was not done then the classification would be deemed to have lapsed. Clause 23(2) and (3) should be deleted. In clause 27(1) the appeal for declassification should also include a challenge on why the information was classified in the first place. The Promotion of Access to Information Act (PAIA) would supersede any law that would come into conflict with it as it was law derived from the Constitution. The minimum sentences in Chapter 11 should be deleted.
The DA said that clause 49 had too broad a scope. In December 1996 the Mandela Cabinet adopted the Minimum Information Security Standards. It preceded PAIA and assumed certain things. For example, it assumed that where information was exempted from disclosure, all security measures applied in full. This would mean that anything refused (by PAIA, for example) had to be classified. The Minimum Information Security Standards system seemed to have been functioning on this basis whereas PAIA made the refusal of information discretionary. The result of the Minimum Information Security Standards was that anything and everything could be classified in South Africa including entire file blocks and series of information. The Protection of Information Bill still applied to all institutions just like the Minimum Information Security Standards. Clauses 6 and 17 had no legal effect and could simply come out; they were there to teach intelligence agencies about how fundamental rights worked. They flowed from clause 49. If clause 17 were to be retained then the directions for classification could be transformed into the conditions for classification. The Application clause still said that the Bill applied to all Section 239 organs of the state under the Constitution which included Section 1 of the Public Finance Management Act. This did not make sense as the Committee had already agreed to take out ‘national interest’. The Committee had also agreed that ‘national security’ would be the basis from which one classified information. The Application clause had to be tightened down so that the Bill applied only to departments that dealt with intelligence. Once the Application clause had been dealt either by stipulating the departments or the subject matter then everything else would fall into place. The DA was also not in agreement with minimum sentences in the Bill.
The ACDP said that one of its proposed amendments was the “file series” concept, this category of classification was too broad. The core aspect was the definition of ‘national interest’, there had to be agreement on this. Minimum sentences was problematic and the suggestion was that clause 1(6) should be deleted. Chapter 2 and 5 should be deleted. Clause 14(2) was too broad and should be deleted. An objective test that took into consideration reasonableness should be used for classification in clause 15. Clause 18 should be amended so that it would be subject to a public interest override. The object test should also be inserted in clause 21. There should also be a public interest override in clause 23, this would harmonise the Bill with the provisions of PAIA. There should be an independent oversight body that would deal with appeals. Chapter 10 had to be reviewed. The words ‘minimum sentences’ should be deleted in chapter 11. Reference should be made to the Protected Disclosures Act in clause 38. There should be a public interest defence inserted instead of clause 43 or it should be deleted in its entirety. The Bill should also include a public domain defence for purposes of clauses 32, 35, 37, 38 and 39.
The key points of discussion were that the threshold for the review of information was unconstitutional on both the DA and IFP agreed. There was consensus that the Bill did not intend to restrict information that was already allowed in the Promotion of Access to Information Act. The ANC reiterated its position that delegation of the classification authority must be restricted to a level not lower than a Deputy-Director General or the equivalent thereof. The Committee requested clarification from the state law advisors on the impact of the Bill on the Promotion of Access to Information Act and Protected Disclosures Act. There was rigorous debate between the ANC and the DA on the application of the Bill, the level of authority for the declassification of information, as well as whether or not national security should remain solely within intelligence structures.
Dr Oriani-Ambrosini (IFP) said the Inkatha Freedom Party was engaged in this process in the interests of the country and not as a political party. There were a number of definitions that should not be in the Bill such as the definition of ‘need to know’. There might be a need to discuss definitions that were not used in the actual text of the Bill. The definitions also had to be considered with more scrutiny for purposes of creating a framework for the regulations. The definition of ‘national interest’ has been deleted in the IFP’s version of the Bill. The following should be added to the definition of ‘legitimate interest’: “the protection of one’s own rights”. ‘Legitimate interest’ should include the interest of an affected individual and not just the state. The following wording had been added to clause 6(j) so that it read as follows “In balancing the legitimate interests referred to in paragraphs (a) to (i), the Minister, a relevant official or a court must have due regard to the security of the Republic, in that the national security of the Republic may not be compromised”. The intention was to change the Minister from being a regulator to a sort of conductor. Clause 7(1) was amended so that it read as follows “The Minister must, within 12 months of the commencement of this Act issue non-binding guidelines to assist the persons or departments concerned, which guidelines identify…”. The aim was to shift the responsibility from the Minister to the departments. The aim was to downgrade the regulations to merely guidelines; this would tie in with clause 7(6). Clause 8 would then be subject to the proviso in clause 7(6). Chapter 5 should be deleted entirely. The argument that there was a need for deleting the classification for commercial matters was not convincing.
’Harm or the danger of harm’ should mean that it was clear, present and corroborated and objective. Clause 16(6) should read: “Information shall not be subject to bulk classification or classification by category unless the applicable classification is warranted in respect of each piece of relevant information”. Clause 17(1)(d) should have a sub paragraph (iii) added to it which should read: “clear, present, corroborated and objective harm or danger thereof directly caused by the disclosure of the relevant information”. The amendment in clause 17(3) basically said that if the cat was out of the bag then whoever came cross the information should not be subject to prosecution. Clause 20(c) should be amended to read: “in compliance with the requirements or classification set out in this Act”. Clause 21 should be deleted in its entirety. The interval period for reviewing information should be reduced to 7 years, reviews should be once a year and if this was not done then the classification was deemed to have lapsed. Clause 23(2) and (3) should be deleted. In clause 27(1) the appeal for declassification should also include a challenge on why the information was classified in the first place. The Promotion of Access to Information Act (PAIA) would supersede any law that came into conflict with it as it was law derived from the Constitution. Therefore clause 28(2) was amended to make it a ‘must’ for the head of an organ of state to declassify information if it was mandatory to do so under PAIA. Clause 31 must be deleted so as to not make the Minister a dispute resolution body. The minimum sentences had been deleted in Chapter 11. If there was erroneous classification then anyone who disclosed the information should not be prosecuted, this was a defence. Clause 40 should be deleted. Clause 46 must take into consideration that if somebody was accused of a criminal offence and there was classified information that could prove their innocence, then that information had to be declassified while the proceedings may be held in camera. Clause 48 made provision for the regulations. The only amendment was that Parliament should hold public hearings on the regulations before approving them so that the legislature would have to apply its mind.
Ms M Smuts (DA) referred to the threshold for the review of information that Dr Oriani-Ambrosini had spoken about. The threshold as it was in the Bill was unconstitutional according to Section 32 of the Constitution on access to information. One could not introduce hurdles where there was a request for information held by the state.
Dr Oriani-Ambrosini said that he agreed and had deleted the provisions that introduced the hurdles.
Mr L Landers (ANC) referred to clause 33(b) of the IFP submission. Dr Oriani-Ambrosini had referred to ‘erroneous’ classification, surely the right term should be unlawful classification?
Dr Oriani-Ambrosini agreed and said that unlawful would be the proper word to use. The IFP also submitted that the sentence for those who classified for wrongful purposes such as concealing corruption should be heavily punished.
Ms Smuts referred to clause 26 and said that she did not understand the proposal. How could information be classified in the first place if it was a matter that was not covered by any of the grounds for refusal of disclosure? Most of the grounds for refusal under PAIA were discretionary in any case. She did not understand how information should be released under PAIA that was not supposed to be classified in the first place.
Dr Oriani-Ambrosini replied that his line of thinking was that all the information that should be released under PAIA, could not be refused under the Bill. Some of the information that could be released under PAIA was functional whilst the information that was classified by the Bill was ontological; this was to say that it was the substance of the information that dictated the nature of the information and not what it would be used for. Information must be released under PAIA that would lead to its declassification as opposed to saying that it should not have been released in the first place.
The Chairperson said that the Bill did not intend to restrict a person from getting information that was already allowed under PAIA.
Democratic Alliance proposed amendments
Ms Smuts explained the presentation would kick off from clause 49 and end with the Application clause as the DA was aware that it had not convinced the other parties on the overbroad scope of this clause. In December 1996 the Mandela Cabinet adopted the Minimum Information Security Standards (MISS). It preceded PAIA and assumed certain things. For example, it assumed that where information was exempted from disclosure, all security measures applied in full (taken from the MISS). This would mean that anything refused (from PAIA, for example) must be classified. The MISS system seemed to have been functioning on this basis, whereas PAIA made the refusal of information discretionary. A PAIA official had to think through and justify every request to information. The result of MISS was that anything and everything could be classified in South Africa including entire file blocks and series of information. The MISS had produced a mess and the result was that the National Intelligence Agency (NIA) dealt with all departments and institutions. The result of this was over classification as confirmed by the Ronnie Kasrils Ministry. Departments were strained under the massive amount of classification. The Kasrils Ministry also said that there existed a default position of secrecy that was unconstitutional - hence the Bill. Clause 6 and 17 had no legal effect and could simply come out; they were there to teach intelligence agencies about how fundamental rights worked. They flowed from clause 49. If clause 17 were to be retained then the directions for classification could be transformed into the conditions for classification.
The Bill still applied to all institutions just as the MISS did. It had not addressed the questions raised under the Kasrils Ministry. The Committee had to ask itself what had to be classified, by whom and for how long should information remain classified. The Application clause still said that the Bill applied to all Section 239 organs of the state under the Constitution which included Section 1 of the Public Finance Management Act (PFMA) hence Mr Landers was still thinking that the “Algoa Bus Company” was the Bill’s business [i.e.The general manager of the Algoa Bus Company sitting somewhere in the Eastern Cape should be classifying information]. This did not make sense as the Committee had already agreed to take out ‘national interest’. The Committee had also agreed that national security would be the basis from which one classified information. The Application clause had to be tightened down so that the Bill applied only to departments that dealt with intelligence. If national security were to be the subject matter of classification in the Bill; the defence force had its own classification laws that were subject to PAIA and it also did not want help from intelligence. The police had their own classification laws and also did not want any help from intelligence. What remained to be legislated for were the intelligence agencies and perhaps the Department of Foreign Affairs. The Minister also seemed to be of this view. Once the Application clause had been dealt with by stipulating either the departments or the subject matter then everything else would fall into place. The levels of classification in clause 15 would also make sense. It was suspicious that a person could be locked up for 25 years if they had no intention of benefiting another state by spying or other such hostile activities. The security matters that the Bill dealt with were discretionary under PAIA which prevailed. It was important to avoid coming up with a Bill that could be challenged and it would be embarrassing if the fruits of our work ended up in court.
Mr Landers said that Ms Smuts had to listen very carefully when a Member was speaking. She imputed something that was not there. She said that the ANC’s proposal was still stuck on ensuring that the Algoa Bus Company was able to classify. In the ANC’s document it had written in paragraph 8.1: “The level to which this delegation must be made must be restricted to a level not lower than a Deputy-Director General or the equivalent thereof. This would address the Algoa Bus scenario” It meant that the General Manager of the Algoa Bus Company situated in the Eastern Cape should not be classifying information. Everybody understood this including the media but not Ms Smuts?
Dr Oriani-Ambrosini asked if Ms Smuts was not prepared to concede that some of the organs of state the DA wanted to be excluded, could have information that would be necessary to classify.
Ms Smuts said “no”, for example, Dr Oriani-Ambrosini still wanted certain types of commercial information to be put back into the Bill. If there was a need for some commercial information to be protected then it should be under other statutes and regulations. Intelligence services should not be concerning themselves with “all life on earth”. The Bill was intelligence law.
Ms V Mentor (ANC) said that she was struggling to grapple with the juxtaposition between the Bill and PAIA. Some laws superseded others for example national law trumped provincial law.
The Chairperson replied that the state law advisors should consider how the Protected Disclosures Act and PAIA would affect the Bill. The matter should be flagged appropriately.
Dr Oriani-Ambrosini commented that Ms Mentor had raised a crucial issue. The Committee should seek a legal opinion from a constitutional law expert on whether a law could insulate itself from other laws, superseding them in the process.
Mr D Maynier (DA) asked if he could ask Mr Landers a question
The Chairperson said at the end of the meeting he would allow the question.
Mr Landers said, given the DA’s strong views on the application of the Bill, was there absolutely nothing - even within the purview of the Western Cape government - that required protection or classification?
The Chairperson jokingly said the answer was no.
Ms Smuts replied that intelligence was a national competence and if the Bill operated at that level of competence only, then it would not affect the Western Cape. If the Western Cape government had international relations that required confidentiality then the normal protocols would come into play or perhaps one would classify.
Mr Landers slyly said Ms Smuts was vas gevat (caught out).
Ms Smuts replied jy dink jy is slim (you think you are clever). The provincial department would work under the national statutes that dealt with whatever administrative issue as they case may be.
The Chairperson said so this meant that there were no secrets in the Western Cape government.
Ms Mentor asked if Ms Smuts was foreseeing and implying that because the police and defence had their own Acts, their members should be exempt from this Bill. That they would never be guilty of any of its offences or breach any of its provisions.
Ms Smuts replied that the only offence clause that would be applicable would be the Chikane clause; this would be the one that criminalised the disclosure of state information after one was no longer in public service.
Ms Mentor said that Ms Smuts was thus conceding that clause 43 would apply to Defence and Police. The law could not work in such a manner where legislation had to have separate clauses to which different categories of persons or institutions applied. This was to say that certain parts of the Bill would apply while others would not.
Ms Smuts clarified her position by stating that an offence applied to everybody but the Application of the Bill related to classification and whose classification it should apply to. If the Police already had their own Act then they should not classify under the Bill.
Ms Mentor said that her conclusion was that Ms Smuts had conceded that the Bill would apply to the Police and Defence.
The Chairperson agreed with Ms Mentor, even though he felt that Ms Smuts conceded whilst kicking and screaming.
ACDP proposed amendments
Mr S Swart (ACDP) said that one of the concerns of the African Christian Democratic Party was the “file series” - this category of classification was too broad. The core aspect of the changes was the definition of ‘national interest’, there had to be agreement on this. Minimum sentences was an issue and the suggestion was that clause 1(6) should be deleted. Chapters 2 and 5 should be deleted. Clause 14(2) was too broad and should be deleted. An objective test that took into consideration reasonableness should be used for classification in clause 15. Clause 18 should be amended so that it would be subject to a public interest override. The object test should also be inserted in clause 21. There should also be a public interest override in clause 23, this would harmonise the Bill with the provisions of PAIA. There should be an independent oversight body that would deal with appeals. Chapter 10 had to be reviewed. The words “minimum sentences” should be deleted in chapter 11. Reference should be made to the Protected Disclosures Act in clause 38. A public interest defence should inserted instead of clause 43 or it should be deleted in its entirety. The Bill should also include a public domain defence for purposes of clauses 32, 35, 37, 38 and 39.
There was no discussion on this presentation
Ms Mentor asked if it was appropriate to keep referring to clause 43 as the Frank Chikane clause.
The Chairperson said that Ms Smuts decided to associate the clause with a person maybe it would have been better to call it the Cecil Burgess clause.
Dr Oriani-Ambrosini asked if Mr Swart had considered the issue of hostile activities.
Ms Swart said that he had not dealt with this issue specifically but there was a definition in PAIA.
Mr Landers asked exactly what the classification laws were that Ms Smuts and Mr Swart kept referring to.
Ms Smuts referred to Mr Ronnie Kasrils explanatory notes dated 13 June 2008. Point 8 read : national laws prohibited the disclosure of certain information; such laws were the Protection of Information Act 1982, The South African Police Services Act, The Intelligence Services Act and the Defence Act. Hostile activities were dealt with in section 41 of PAIA which had a specific definition.
Mr Swart said that the Committee had to have guidance as to what impact the Bill would have on all legislation that had provisions for classifying information.
The Chairperson said that his understanding of the urgency of the Bill was that presently all classifications were done under the MISS document. If there was another law that allowed for classification then that it was not known. Any law that dealt with classification would not have included the process of classification even the Constitutional Court, when it had matters of classification before it had accepted that classification had been done properly but the court had not deliberated into the classification process. This was the official view and if there was another view then it should be heard.
Ms Smuts said that it had been confirmed that the police did classify.
The Chairperson said that this would have been in the MISS.
Dr Oriani-Ambrosini said that when he used to work in Home Affairs classifications were done in MISS and this was a horrible piece of legislation, so the sooner the Bill was finalized the better.
Mr Maynier asked Mr Landers could clarify what national security related information – as has been defined by the ruling party’s submission - was likely to be in the possession of the Natal Sharks board and would need classification.
The Chairperson jokingly asked if Mr Landers had access to the information kept by the Natal Sharks Board.
Mr Landers said that the DA had serious listening problem where they heard a person but did not listen. The ANC was saying g in its document that it did not want the classification to extend as far as the Natal Sharks Board; this was why the power of delegation should only be with the Director-Generals (DG) underling. The ANC did not want some GM of the Algoa Bus Company classifying documents.
Ms Smuts interjected and asked which DG’s wee being referred to and why?
Mr Landers asked why the DA would want the classification to be lower down. It was only the DA that did not understand and the reason was because the rug had been pulled from under its feet by the ANC.
The Chairperson intervened and said that it was Friday; he was excited to go home and asked for the temperature to be reduced. Mr Maynier was not going to get his answer in much the same way Ms Mentor did not get hers when she was interrogating Ms Smuts who was kicking and screaming.
Dr Oriani-Ambrosini said that the difficulty he had with the ANC’s proposal was that it would not be practical for the DDG and DG to classify every single piece of information that needed classification. Therefore the level of classification had to go down. However the probability of the Natal Sharks Board ever having to classify information was highly unlikely. In all likelihood they would look at the Bill and decide that it would not be applicable to them. The Bill had to apply to all organs of state and those who would need to classify would have a governing law and those who did not have to classify would not use the Bill. It was better to legislate in a conceptual manner as opposed to specific scenarios.
Ms Mentor said that the Committee would till decide whether or not Chapter 5 would be deleted. I was concerned with what the DA seemed to be saying regarding the authority to classify, it should not be lowered. National security was not the purview of intelligence or national departments only.
Mr Maynier said that if this was correct then the challenge for the Committee was to specify which institutions were involved in national security operations. I am sure that everybody would agree that the Sharks of the Kwazulu Natal Coast would never pose a threat to national security.
The Chairperson asked what if our neighbours decided to poison them or fit them with listening devices. The view by Dr Oriani-Ambrosini was ideal, national security should be viewed as a whole and it was not good to think of ridiculous scenarios to try and nullify the contents of the Bill.
Mr Landers added that it was a simplistic approach to say that national security should reside with intelligence structures only.
Mr M Shilowa (COPE) said that the Bill was about the protection of state information therefore the departing point was to ascertain if there was a need to classify information, who would have the authority to classify, what was defined as agencies etc. The balance should be between classifying information for the purposes of state security but not prejudicing citizen’s rights. This would be the real challenge.
The Chairperson asked if COPE was going to move with the process or did they have a document of their own to present.
Mr Shilowa said that he would move with the process and not delay it.
The Chairperson said that the state law advisors would consolidate the documents presented so that the Committee could determine where there was consensus and where would there be a need for further debate.
Members Present: Mr Fihla (ANC); Mr Landers (ANC); Ms Mentor (ANC); Ms Smuts (DA); Mr Maynier (DA); Mr Swart (ACDP) Mr Shilowa (COPE) and Dr Oriani-Ambrosini (IFP).
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