Protection of Information Bill: harmonisation with Protected Disclosures Act

Meeting report

Protection of Information Bill [B6-2010]: further deliberations
The Chairperson reminded the Committee that at its last meeting, the Members asked the State Law Advisors to consider how the Protection of Information Bill and the Protected Disclosures Act might interact or conflict, and also to consider whether there might be conflicts or the need to incorporate any references to any other legislation. The State Law Advisors were also asked to collate information from the different parties, showing areas of consensus and departure. He was given to understand that, owing to demands placed on the office by other committees, not all of this work might have been completed.

Ms Xoliswa Mdlulwa, Principal State Law Advisor, noted that a schedule had been drawn showing the inputs from all parties, which indicated the areas of consensus and the suggestions raised by each party.

The Chairperson asked if the work on the Protected Disclosures Act (PDA) had been completed,

Ms Mdlulwa said that the State Law Advisors had been asked to amend Clause 38 to try to incorporate references to the PDA. The State Law Advisors were still busy considering the impact of other legislation such as Promotion of Access to Information Act (PAIA) and other legislation that referred to classification of information. She handed in a draft of the new Clause 38.

The Chairperson summarised that the issue was whether the Bill, in its present form, interfered with the rights of whistleblowers under the Protected Disclosures Act (PDA), as was suggested during the public hearings. The original Clause 38 of the Bill had made reference to the PDA but may not have been sufficiently clear.

Ms Mdlulwa read out the proposed new wording. She noted that the references to Clause 11 had been deleted. The new wording was” “Subject to Section 1(6), any person who discloses classified information in contravention of this Act is guilty of an offence and liable, on conviction, to imprisonment for a period not less than three years but not exceeding five years, except where such disclosure is- (a) protected under the protected Disclosures Act, 2000 (Act No 26 of 2000), or section 159 of the Companies Act, 2008 (Act No 71 of 2008); or (b) authorised by any other law.”

The reference to the PDA was now specifically included in he Bill, and, although the original wording had made exception for the PDA or the Companies Act, she felt that this clearer wording should address the Committee’s concerns.

Mr S Swart (ACDP) asked about the wording of sub-paragraph (b). In terms of the Prevention and Combating of Corrupt Activities Act there was an obligation on an official to disclose information in certain circumstances, and he asked if they would be covered if they disclosed classified information.

Ms Mdlulwa said that she would need to look into this.

Dr M Oriani-Ambrosini (IFP) asked for clarification on the reference to Section 1(6), which dealt with minimum sentences. He noted that he was not in agreement that they should be included at all. It was clarified that the version he had been studying was not the updated version.

Dr Oriani-Ambrosini was not sure that this was correctly placed, and suggested that perhaps it should be included in his suggestions for a new Clause 33A, dealing with defences. He said that this wording only covered disclosure, but there was a host of other offences that also needed to have exceptions listed, such as possession, attempts, and conspiracy. He wondered if the Committee should not consider his proposals now for Clause 33A.

Mr L Landers (ANC) referred to the reference to Section 1(6) and questioned whether this definition clause, since it dealt specifically with penalties, should stay under the Clause 1 definitions, or should be moved to the beginning of the defences clause.

The Chairperson asked that this suggestion be flagged, to be dealt with at the appropriate time.

Mr B Fihla (ANC) answered some of the concerns about minimum sentences, and thought that they would be appropriate for this Bill, in view of the seriousness of the crimes. He was not sure whether any extenuating circumstances should be considered.

Dr Oriani-Ambrosini answered that minimum sentencing was not necessarily directly related to the nature or importance of the crime. Espionage covered a range of offences. He noted that there was debate on the efficacy of minimum sentencing, and that when minimum sentences applied for crimes such as rape, judges, both in South Africa and other countries, had been inclined to make findings of not guilty rather than be forced to impose sentences that they considered to be thoroughly unreasonable. Every crime had to be considered in its own context, and that included whether or not there were extenuating factors. Espionage was a very broad offence, with serious consequences. He reiterated that it was a fallacy that minimum sentences showed a commitment to addressing crime, and acted as a deterrent.

The Chairperson asked that the Committee not get into a debate about minimum sentences at present. The proposed new Clause 38 was suggesting that a minimum of three years imprisonment would be imposed, but there was a rider that if Clause 1(6) applied, that sentence could be lower. He asked Members only to comment, at present, whether the proposed changes to Clause 38 covered the concerns about infringement of whistleblowers’ rights.

Mr Swart said that the proposal did go some way to addressing these concerns. He also thought, on further consideration, that it probably also covered his earlier question about the Prevention and Combating of Corrupt Activities Act. The ACDP had earlier proposed that this be included in the defences portion of the Bill. He had some issues with the way in which it had been drafted, noting that, for instance, the rest of the clauses ended with “subject to Section 1(6)”, whereas this clause was worded the other way around, but said that the consistency and finer drafting points could be addressed at an appropriate stage later. He agreed that there should also be a separate debate on minimum sentences at a later stage.

Mr Landers agreed that the ANC was satisfied that this new draft had addressed the concerns. He expanded on his earlier suggestion that perhaps Clause 1(6) should be moved. Clause 1(6) contained a rider that if a Court was satisfied that there were substantial and compelling circumstances why a minimum sentence should be replaced with a lesser sentence, then it must enter those reasons on the record, and then impose the lesser sentence. This wording followed what had been inserted into other minimum sentencing legislation, and it was an important qualification that the Members must bear in mind.

Mr Landers also commented on the point raised by Mr Fihla and said that the ANC would make out a strong case in regard to espionage.

Ms D Smuts (DA) appreciated why the reference to Clause 1(6) was included. However, the DA was opposed to minimum sentencing. She thought that this was red herring, and the main issue was whether all forms of disclosure that were justified under the Constitution and other legislation had been catered for. She suggested that perhaps the draft by the State Law Advisors should be combined with a version that the IFP had put forward. Essentially, anyone charged with an offence under the Bill should be entitled to raise a defence. She suggested that issues of public interest were also important. She referred the Committee to suggestions made by Dr Dario Milo, during the public hearings, to include defences if a person had reason to believe that the information showed evidence of criminal activity (similar to the provisions in PAIA Section 46), or miscarriage of justice, or matters affecting health and safety, the environment, public safety risks (similar to those in the Protected Disclosures Act) or undue advantage. Dr Milo had made some interesting proposals that started to develop the common law. She suggested that some options be written down, and reiterated that the goal was that anyone making disclosure in terms of a Constitutional or legislative right (including Members of Parliament) should have a defence.

Ms Smuts agreed that although the DA was opposed to minimum sentencing, the Committee should not deal with that at the moment.

The Chairperson reiterated that the focus of the instructions to the State Law Advisors on Clause 38 was to deal with whistleblowers’ rights. The DA had raised a range of new issues, including the way in which people in possession of classified information should or should not disclose it. This Bill said that if a person had classified information, irrespective of what it disclosed, it should be taken to the police. He asked that the other matters raised should stand over for the moment.

The Chairperson asked the State Law Advisors for confirmation that if a person was charged under Clause 38, Clause 1(6) would allow for a lesser sentence to be imposed if appropriate.

Ms Mdlulwa confirmed that this was correct.

The Chairperson then noted that Dr Oriani-Ambrosini had circulated a new version of the IFP proposals on the Bill, which he asked should be tagged as “IFP2”. He asked why it had been circulated, and whether it contained any new proposals on Clause 38.

Dr Oriani-Ambrosini noted that the only substantial change in this document concerned the crime of hostile activity. For the rest, the content was more or less the same, although some “tidying up” of the grammar or wording had been done. This was circulated to the Committee Secretary two days previously, so all Members should have the document.

Mr Landers noted that he did not have a copy.

Mr Landers confirmed that, in respect of Clause 38, the ANC was happy with the draft produced by the State Law Advisors, subject to further consideration of where Clause 1(6) should be placed.

Dr Oriani-Ambrosini wanted to record that the IFP also believed that the new draft had achieved the purpose that when disclosure took place in terms of the Protected Disclosures Act, that disclosure should not attract criminal sanction. The wording may need to be revisited, as it may be more appropriate to word it so that it cut across more offences, but he welcomed the progress on it to date.

Ms Smuts said that the most important part was that “authorised by any other law” had been included. The DA wished to record that it still wanted to raise the issue of minimum sentences. She also said that the DA, in an earlier document, had asked that the option of a fine be included, but this was not in the draft.

The Chairperson noted that this had not been included as the brief to the State Law Advisors. He proposed that the additional recommendations of the IFP and DA on this particular issue should be forwarded to the State Law Advisors, by the following morning, so that the State Law Advisors could then present any further suggestions or changes to the Committee on Friday. The parties were closer to consensus.

Mr Landers said that the ANC would not have a problem with this. However, he did ask that when a process was set, other new parameters – such as suggesting the option of a fine – should not be introduced.

The Chairperson agreed that new inputs could interfere with the process but also said that, to be fair, such inputs could also help to improve the process, and there was no harm in putting these suggestions before the Committee, for acceptance or rejection. He was appreciative of the ground that had been covered by the discussions. The Committee would consider it further on Friday.

The Chairperson then referred again to the IFP2 document, and noted that parts of the document had been sent through piecemeal. He asked Dr Oriani-Ambrosini to highlight what the latest concerns were.

Dr Oriani-Ambrosini said that the IFP was concerned about the “hostile activity” offence, which it believed was covered already by other offences, and which he doubted could be distinguished from espionage. He had suggested the deletion of Clause 33. When the Committee was discussing the Bill, clause by clause, he would want to be convinced of the need for some of the wording. The rest of the changes were in the nature of “clean-ups” to the wording. He assured the Chairperson that he would not be submitting any more versions.

The Chairperson asked if he was suggesting the revision of the whole of Clause 33.

Dr Oriani-Ambrosini said that his suggestions had already been outlined. The critical part of the offences seemed to be “the prejudice to the State”. The State was protected by classifying information.  Any disclosure of that information would, in his view, intrinsically involve prejudice. If a person was punished for disclosure, then he was also being punished for the prejudice caused by that disclosure. He was not sure how the two concepts could be distinguished from each other. The notion of “national interest” followed the notion of “prejudice to the State”, and if the State’s goals could not be achieved, then it had been prejudiced. If the concept of “national interest” had been deleted, then he could not see any justification for retaining references to “hostile activity” if it went beyond the disclosure of information.

Ms Smuts read out the definition of “hostile and subversive activities” from PAIA.  This included a reference to acts of aggression against a Department, sabotage or terrorism, and activity aimed at changing the Constitutional order of the Republic through the use of violence or hostile activity. The question was whether that would still apply, now that the Bill had been amended to include only matters of “national security”. She believed that an offence of espionage was needed. There was no such offence presently. She also wanted to discuss why a sentence of 25 years imprisonment had been set as a penalty, and why the references to intention had been dropped in respect of the offences. She had raised this point before. In the 2008 version of the Bill, intention was a prerequisite for guilty findings in respect of offences of both espionage and hostile activity. She asked who had removed this from the current draft, and for what reason, as it had the effect that a mere suspicion of something that was ill-defined could result in imprisonment.

The Chairperson said that her concerns were valid. However, he asked that she confine her remarks, at present, to whether Clause 33 should be removed. The further issues that she had raised could be dealt with at another time.

Ms Smuts said that there should be a definition of “hostile activity”. The only definition of this at present was the definition in PAIA.

The Chairperson asked the drafters to take note of those concerns and consider them. It might be that the definitions in PAIA could be discussed later.

Mr Swart asked if this would not be encompassed by the instructions to the State Law Advisors to consider the e harmonisation of PAIA and this Bill, in which case perhaps some suggestions could be made as to whether the definitions may need to be cross-referenced.

Mr Swart also mentioned that there was some question as to which Act may have precedence. Whilst he did not want to go off at a tangent, he asked whether this should also be considered on Friday.

Dr Oriani-Ambrosini said that he differed in his view, and did not think that harmonisation was the issue. If a classified document was handed to someone, either with or without intention, this could be classed as hostile activity. If the handing over of a document would not cause prejudice to the State, then it should not have been classified in the first place. He reiterated that the very fact of handing something over would create prejudice, but wondered what meaning was being attached to “prejudice”.

 The Chairperson thought that “prejudice” had to bear its ordinary dictionary meaning and pointed out that other definitions of crime – such as fraud – also contained a reference to prejudice and its interpretation had not been problematic in the past. It made little difference, in his opinion, whether the word “harm” or “prejudice” was used; it was a question of whether the offence was correctly recorded and could be adopted in that form.

Mr S Shilowa (COPE) said that perhaps it might be more useful for the Committee to sort out the definition before trying to debate the clause and the penalties that may or may not attach.

Ms Smuts thought that the author of this Bill should be asked to explain what “hostile activity” was, as she considered that it was inappropriate that the Committee should be trying to work out what meaning should be attached to it.

The Chairperson said that when the Bill was first debated, explanations were given, although Ms Smuts may not have been a Member of the Committee at the time, or may not have been present at that meeting. Her concerns were genuine, and if she felt that the Minister should be asked to present an explanation to the Committee, then she should make a proposal to that effect. However, the process was now with Parliament, and no longer with the Executive. He was not sure whether her concerns were shared by other Members.

Mr Fihla agreed with the Chairperson.

Ms Smuts suggested that perhaps somebody from the Ministry should be asked to address the Committee, and asked if the Parliamentary Law Advisors were present to assist.

The Chairperson noted that Mr Ntuthuzelo Vanara, Parliamentary Legal Adviser, was present both during previous sessions and at this session. He would be available at all times to assist the Committee.

Ms Smuts thought that if Members were not clear on the meaning of the clause, then it should be thrown out.

Mr Landers noted that the Committee had gone through a lengthy process, when the entire Bill was explained. Ms Smuts was not present at that meeting, and he wondered if it was fair that the entire process should be taken back to accommodate her, and he suggested that she advise the Committee why she might not have been present.

Ms Smuts said that she was present for the briefings.

Mr Landers then questioned why she had not raised questions on Clause 33 at that stage. He further pointed out that the DA had made submissions on this Clause, which suggested that it was understood, especially since that submission contained no suggestion to the contrary.

Ms Smuts said she was entitled to ask what it meant, and reiterated that because there was a definition under PAIA, the two must be made compatible.

The Chairperson noted that the Committee did not seem in general support of calling the Ministry in again.

Mr Enver Daniels, Chief State Law Advisor, noted that he had agreed to meet with Mr D Maynier (DA) to discuss the latter’s concerns on the Bill, and suggested that it might be useful for Ms Smuts and Dr Oriani-Ambrosini to attend that meeting as well, to engage on their concerns.

The Chairperson thanked Mr Daniels. He noted Mr Landers’s point about the submissions made by the DA and also noted that, even if Ms Smuts had not been present, Mr T Coetzee (DA) and Mr D Maynier had been present. He did not think that it would be correct to make concessions for individual Members to hear further presentations, and noted Mr Fihla’s concerns that this might become unworkable. He asked that she and Mr Daniels meet so that Mr Daniels could deal with her concerns.

Ms Smuts noted that the life of this Committee was due to expire on 15 November. She asked whether it should not be extended.

The Chairperson noted that the House would rise on 18 November. However, Chairpersons of all Committees had been informed that the following week was still a Committee week, and this Committee would need to look again at its programme. The original resolution required this ad hoc Committee to report to the House on 16 November, but it seemed apparent that the Committee could not finish its work before then. The necessary request would be made to extend the lifespan of the Committee so that it could continue to sit past 18 November, but it would be premature to bring a revised programme prior to that approval being granted.

The Chairperson then summarised that on 12 November the State Law Advisors would be making a presentation to the Committee on the work still outstanding, in respect of the various pieces of legislation, including PAIA, which should be discussed first. Other legislation would include the Police Act, the Defence Force legislation and the Companies Act. The Committee would also look again at Clause 38, which may be further revised once the proposals of the DA had been forwarded to the State Law Advisors. He asked that Ms Smuts confine her comment to the issue of the whistleblowers. The meeting was adjourned.

Present: ANC: Ms A van Wyk, Mr B Fihla, Mr L Landers, (apologies Ms M Mentor, Ms M Mgabadeli); ACDP: Mr S Swart; COPE: Mr S Shilowa; DA: Ms D Smuts, Mr D Maynier , (apologies Mr T Coetzee); IFP: Dr M Oriani-Ambrosini.