The Committee discussed what existing legislation could potentially be in conflict with the Bill. The state law advisers presented a report dealing with the potential inclusion of a reference to the Protected Disclosures Act under clause 38. There were two draft proposals which read as follows “Any person who discloses classified information in contravention of this Act is guilty of an offence and liable to imprisonment for a period not less than three years but not exceeding five years subject to Section 1(6) except where such disclosure is protected under the Protected Disclosures Act, or Section 159 of the Companies Act or authorized by any other law”. The second draft proposal was: “Any person who discloses classified information in contravention of this Act is guilty of an offence and liable to imprisonment for a period not less than three years but not exceeding five years or a fine Section 1(6) except where such disclosure is protected under the Protected Disclosures Act, or Section 159 of the Companies Act or authorized by any other law.”
On the hierarchy of laws, there was a presumption in law that a latter Act superseded the current Act. In Curry and De Waal it was implied that where national laws were concerned, Parliament would prevail over all other laws. Parliament had the right to make laws and it had to take into account its previous laws when enacting new law. Where there was a conflict of law it was important to note that legislation could be revoked either expressly or by implication. The fact that two or more pieces of legislation apply to the same subject matter did not necessarily mean that there was a conflict. In the event of a conflict, the provision of the specific as opposed to the general legislative provisions would be applicable.
There were complaints from Committee Members that the presentation from the state law advisors on the issue of hierarchy of laws did not address the issue with which the Committee was grappling. The Committee wanted to know what would happen if it included something that was in conflict with Promotion of Access to Information Act. There were disagreements between Members on the constitutional supremacy of the Promotion of Access to Information Act. Some Members were of the view that the Act could be amended whilst others held the view that this could not be done as the Promotion of Access to Information Act was a constitutionally mandated piece of justice. There was unanimous agreement for the Protection of Information to be aligned with other pieces of legislation.
The Members would be notified on Tuesday 16 November if the request was approved. If it were to be approved then the Committee would continue with its work after the 18 November 2010.
The Chairperson requested the state law advisors to brief the Committee on the work that had been assigned to them during the previous meeting.
Draft Proposals for Clause 38: briefing
Ms Karen Booyse, State Law Advisor, first addressed the proposed amendments requested by the Committee for Clause 38. There were two options. The first draft proposal read as follows: “Any person who discloses classified information in contravention of this Act is guilty of an offence and liable to imprisonment for a period not less than three years but not exceeding five years subject to Section 1(6) except where such disclosure is protected under the Protected Disclosures Act, or Section 159 of the Company’s Act or authorized by any other law.” The second draft proposal was the one that incorporated the fine and read as follows: “Any person who discloses classified information in contravention of this Act is guilty of an offence and liable to imprisonment for a period not less than three years but not exceeding five years or a fine Section 1(6) except where such disclosure is protected under the Protected Disclosures Act, Section 159 of the Companies Act or authorized by any other law.”
Ms D Smuts (DA) thanked the state law advisors and said that the two proposed options should be flagged pending the decision on minimum sentences.
Mr S Swart (ACDP) said that he would presume that the Prevention and Combating of Corrupt Activities Act was included under the part that said “authorized under any other law”. There were various Acts that had disclosure provisions.
Hierarchy of Laws briefing
Ms Booyse said that the presentation focused on the hierarchy of laws especially where Parliament had enacted previous legislation that related to the access of information. The Bill aimed to promote the free flow of information within an open and democratic society without compromising the security of the Republic. The important objects of the Bill were (a) the regulation of the manner in which state information may be protected, (b) the promotion of transparency and accountability in governance while giving recognition to the fact that state information may be protected from disclosure in order to safeguard the national security of the state. (j) Was particularly important because it discussed the harmonisation of the Bill with the Promotion of Access to Information Act (PAIA). PAIA gave effect to the right to information held by the state. PAIA also acknowledged that the right to access to information held by the state could be limited if such a limitation was reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom as contemplated by the limitation clause, Section 36 of the Constitution. In the objects of PAIA section, it included that the Act would serve as a protection of rights but this was not unlimited.
In Currie and De Waal it stated that there was a presumption in law that a latter Act superseded the current Act. Regarding legislative supremacy; it implied that where national laws were concerned, Parliament would prevail over all other laws. If two Acts of Parliament were in conflict with one another, then the latter Act would prevail. In a situation of constitutional supremacy, then the Constitution itself constituted the highest legal norm against which all other laws could be tested. It was important to note that Parliament had the right to make laws and it had to take into account its previous laws when enacting new law. Du Plessis stated that there was a hierarchy of legislation that presupposed the existence of higher and lower legislatures. At the top of the hierarchy was the Constitution, original legislation and lastly delegated or subordinate legislation. Where there was a conflict of law it was important to note that legislation could be revoked either expressly or by implication. The revocation was always to the extent that there were inconsistencies in the legislation. The fact that two or more pieces of legislation apply to the same subject matter did not necessarily mean that there was a conflict. In the event of a conflict, the provision of the specific as opposed to the general legislative provisions would be applicable. In the view of the state law advisors, the Bill could work alongside PAIA without any conflict.
Dr Oriani-Ambrosini (IFP) said that the presentation was broad and did not address the specific issue which was that in PAIA there was a provision which said that no other law could subsequently change what was in PAIA. The answer in the state law advisor’s opinion was that there could be harmonisation. It was premature to have this view because the Bill had not been finalised. What the Committee needed to know was what would happen if it included something that was in conflict with PAIA, would PAIA override this? The answer was no, PAIA did not have the power to insulate itself from all other laws. The Bill would have to be made subject to PAIA in case there were any inconsistencies.
The Chairperson sought clarity on whether Dr Oriani-Ambrosini had said that there was a clause in PAIA that stated that it could not be amended?
Dr Oriani-Ambrosini said that that is how the whole issue started when Ms Smuts read Section 5 of PAIA which states that "this Act applies to the exclusion of any provision of other legislation that (a) prohibits or restricts the disclosure of a record of a public body...; and (b) is materially inconsistent with an object, or a specific provision, of this Act."
Ms Booyse said that the Bill did not seek to prevent access to information that was allowed in PAIA. Where there were general and specific laws in conflict with one another, the specific law would prevail.
Mr Swart said that he disagreed with Dr Oriani-Ambrosini. PAIA was a constitutionally mandated Act and therefore had a higher hierarchy then normal legislation. Section 5 of PAIA was explicit as it related to the exclusion of any provision of other legislation. It could be argued that PAIA did bind the Bill. Clause 1(3) was crucial as it set out what would happen if there was a conflict. The Committee had to try and avoid a conflict.
Ms Booyse said that she has taken note of the comments.
Ms Smuts said that the Committee could not take away what was given by the Constitution. Everyone had the right to information held by the state as provided by the Constitution. PAIA was special as it was constitutionally mandated. The constitutional framework provided an unqualified right to state information and would only be subject to Section 36 which was the limitation clause. PAIA excluded any other provision of any other law that attempted to restrict disclosure of information. PAIA also excluded any other law that was materially inconsistent with any of its objectives or specific provisions. It was the duty of the Committee to write a law that would sit alongside PAIA. PAIA had not been tested but it had been the case that the Promotion of Administrative Justice Act (PAJA) was never messed with, and the same must apply to PAIA.
The Chairperson said that Ms Smuts was preaching to the converted and what she had said was exactly why the state law advisors were invited to participate and advise the Committee. The Committee was aware that as a legislative body it could change its own laws. It was not being suggested that PAIA should be interfered with but as a legislature there was the right to change it. It could be changed by direct mention or by implication. The legislature could change its legislation like the judiciary could change its judgments. No Parliament or Executive would bind the next administration and state that an Act made in 2000 would not be interfered with.
Dr Oriani-Ambrosini said that he agreed with the Chairperson. PAIA was required by the Constitution but not its contents. Section 5 of PAIA could not protect it absolutely.
Mr Enver Daniels, Chief State Law Advisor, commented that he was in broad agreement with Dr Oriani-Ambrosini. The Off ice of the State Law Advisor had attempted to align the Bill with PAIA. Statutes books were cluttered with conflicting pieces of legislation. Clause 28 acknowledged PAIA and also reinforced the right of access to information.
Mr Swart said that everybody was on the same page to seek harmonisation. The state law advisors could possibly consider the pre-eminence of Section 5 of PAIA and whether it applied to the Bill. How could Mr Daniels interpret clause 1(3)?
Mr Daniels said that clause 1(3) referred to a situation where there had to be a harmonisation of the legislation and where guidance was given to a court in the event of a conflict. Section 5 of PAIA was clear, it would apply to any law that attempted to restrict information but it should be borne in mind that under the Bill, one could apply to have access to information, there was no conflict. What had to be looked at was the proper harmonisation of the Bill.
Ms Smuts said that the mere fact that there was clause 28 meant that the drafters knew there was a constitutional problem. PAIA should not be amended, the Committee should….
The Chairperson interrupted and said that nobody was suggesting that PAIA should be amended.
Ms Smuts said that that was exactly what was under discussion.
The Chairperson again interrupted and asked who was suggesting that PAIA should be amended.
Ms Smuts replied that a number of Members explored whether this could be done, the question was why the Committee should go there. There was all the scope in the world for the Committee to harmonise. They should consider whether clause 28 worked constitutionally - this was the question asked by the General Council of the Bar in its submission. Clause 28 did not make clear the extent to which a classified document could impact on the Information Officer’s decision as to whether or not to refuse access in the event that he was given a discretion. If the Bill intended classification to be a factor which could further weigh against disclosure then that would be contrary to PAIA and the constitutional scheme. Dr Oriani-Ambrosini was the one who raised the issue of amending PAIA very clearly and the Chairperson added that the legislature had the right to amend it.
The Chairperson said that he had already said that he was not suggesting that PAIA should be amended. The general principle was that the legislature could change its own laws and that obviously meant PAIA.
Mr L Landers (ANC) said that Members had to be honest with each other during engagements. The Chairperson had stressed the point that he was not suggesting that PAIA should be amended. It was not clear whether Dr Oriani-Ambrosini had made the suggestion because it would mean having to go back to the Executive; it was not easy to just amend PAIA. It was tempting to say that Ms Smuts was being a bit paranoid.
The Chairperson asked if Dr Oriani-Ambrosini had suggested that PAIA should be amended.
Dr Oriani-Ambrosini replied no. What had to happen was that all the legislation had to co-exist alongside each other. There was agreement with Mr Daniels on what was said with regards to clause 28. However the clause was not doing what Mr Daniel wanted it to do and this hinged on the inclusion of a ‘must’ in sub-clause 2. In the IFP’s amendment it indicated that the ‘may’ should be a ‘must’. This would then not take anything away from PAIA and solve all the Committee’s problems on this issue.
The Chairperson asked if the changes that were being proposed by Dr Oriani-Ambrosini meant that the second IFP draft proposal would be amended as well.
Dr Oriani-Ambrosini said that this had always been part of the second draft proposal from the IFP.
Mr Daniels commented that if the suggestion from Dr Oriani-Ambrosini was adopted by the Committee then it would mean that anybody who made an application for information in terms of PAIA would have the information automatically declassified. The minute that an Information Officer received a request then the information requested would have to be declassified. If the ‘must’ was added then clause 3 would have to be amended.
Dr Oriani-Ambrosini raised a point of order. The strongest exception was taken because Mr Daniels had not bothered to read what was written in the IFP’s submission, what was just said by Mr Daniels was highly incorrect, the nature of the IFP’s amendment was not captured.
The Chairperson said that Dr Oriani-Ambrosini had said that if clause 28(2) could be changed from a ‘may’ to a ‘must’ then it would be okay. This was not in the documents submitted by Dr Oriani-Ambrosini who spoke outside of the documents and it was to that that Mr Daniels was responding.
Dr Oriani-Ambrosini said that he stood corrected.
Mr Swart said that the Committee was starting to reach a stage where access to information was determined by PAIA and the Bill was a classification Bill.
The Chairperson said that the Committee was beginning to understand PAIA. It was not easy to legislate in terms of the Bill if PAIA was not understood by Members.
Dr Oriani-Ambrosini raised a relevant concern and illustration with the Committee. There was an attempt to pose a question to the Minister of State Security on whether or not Members’ phones were being tapped. The Parliamentary staff had prevented this from happening stating the matter was secret. This was what the Committee was dealing with.
Mr Landers said that Dr Oriani-Ambrosini should direct his request or question to the Directing Judge who was responsible for the approval of the interception of all communications. However the judge could not assist if the question was whether or not the interception was illegal.
The Chairperson said that for communication to be intercepted then someone should be doing something very bad and serious. There was no way that a Member of Parliament’s phone was being intercepted unless a dangerous criminal under investigation was phoning a Member.
Mr Landers said that he was concerned with the fact that it was parliamentary officials who prevented the question from being posed. These officials yielded enormous powers and this was something that Members had to look at. There was nothing wrong with the question.
The Chairperson requested that the state law advisors should provide a power point presentation on the flow of information in terms of access via PAIA and classification in terms of the Bill.
Mr Swart said that they should also include timelines and the implications therefore.
Mr Daniels said that the presentation would be ready as well as the responses to the submissions from the public hearings.
The Chairperson said that a request had been sent for the lifespan of the Committee to be extended. The Members would be notified on Tuesday 16 November if the request was approved. If it were to be approved then the Committee would continue with its work after the 18 November 2010.
Members present: Mr Landers (ANC); Mr S Fihla (ANC); Ms Van Wyk (ANC); Ms Smuts (DA); Mr Maynier (DA); Dr Oriani-Ambrosini (IFP); Mr Swart (ACDP); Mr S Ngonyama (COPE)
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