Protection of Information Bill: Committee's approach

Ad Hoc Committee on Protection of State Information Bill (NA)

31 March 2011
Chairperson: Mr C Burgess (ANC)
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Meeting Summary

The Chairperson noted that he was still awaiting feedback from the Office of the Speaker on the two matters he had raised after the last meeting. Members agreed to the draft programme, and would meet in the week ending 15 April.

Members then briefly discussed the issues arising from the presentation by the Ministry of State Security. The ACDP and DA wished to have the public interest defence debated, and mooted the possibility that consideration might be given to adopting an approach narrower than that of Canada, and that the problems in the UK also needed to be discussed. The IFP had identified four issues for discussion, relating to the public domain, national security, public interest and the issues around appeal, review and classifications. The Chairperson pointed out that the “national security” issue had been debated, and that in principle, Members had agreed that “national security” was a better criterion than “public interest”, but the proposed definitions in the working draft could be further debated. The ANC noted that some time would need to be spent on dealing with the term “in the interest of the public”. It also noted that the Committee had agreed to the change in nomenclature to “Protection of State Information Bill”. It was agreed, after discussion, that in order to afford all Members to mull over the issues, and to discuss them with their parties, all Members would, by 8 April, submit a document to the Committee Secretary, for circulation, outlining the matters that they wished to have discussed, and their contentions or proposals.

Meeting report

Chairperson’s opening remarks
The Chairperson reported that two matters had been referred to the office of the Speaker, one relating to members of the public who were not permitted access to the meeting on 29 March 2011, and second relating to the remarks made by Dr M Oriani-Ambrosini. By late on the previous day, he had not been given any answer, nor any indication of when this might be forthcoming.

The Chairperson tabled a draft programme, and noted that the reference to Tuesday 13 April should be changed to Friday 15 April.

Ms P Mentor (ANC) urged the Committee Section to look for adequate venues, particularly those that allowed for public attendance.

Ms M Smuts (DA) asked if it was not possible to use some of the dates during the week commencing 11 April, noting that the Protection of Personal Information sub-committee would also be sitting during that time.

The Chairperson noted that the Judicial Service Commission would be sitting from Monday 12 April, and he had asked the Chief Justice to release him from his duties there. If possible, additional days would be slotted in.

Dr M Oriani-Ambrosini (IFP) wondered if the agenda items were reflected in general terms, as there was some question of where the Committee was in the process. A number of issues had been debated, especially the issues around the relationship between the Protection of Information Bill (the Bill) and Promotion of Access to Information Act (PAIA). He had understood that finality was needed on some of the principles before moving on to other processes.

The Chairperson thought that perhaps his concerns were premature. Some issues had already been exhaustively presented at public hearings, and the Committee did not need to repeat the arguments. Members could consider whether additional briefings were needed, as they discussed the topics. It was understood that the programme was flexible.

Mr A Maziya (ANC) supported the adoption of the programme, noting that it was not set in stone.

Mr B Fihla (ANC) asked whether there had been a follow-up on queries about research on countries like Brazil or Germany.

The Chairperson noted that during the discussions the Ministry of State Security had noted that there was information available, but it was in other languages. It was not really necessary at this stage to go into this in significant detail, as the general principles that applied on the European Continent had been noted.

Members adopted the programme.

Committee’s Consideration of Best Practice presentations & future approach
Mr S Swart (ACDP) noted that there were many positive aspects to the presentation given by the Ministry of State Security. He had focused, during discussions, on the public interest defence, and there was much to be learned from both Canada and the United Kingdom (UK). It was important to bear in mind the historical background in South Africa. The ACDP believed that there was a need for a public interest defence, and, in order to perhaps reach the middle ground with the ANC, thought that the Canadian model could be considered, even possibly in a narrower form. There was a need to look at the problems that were experienced in the UK. He asked if the Committee would now be discussing the issues in more depth.

The Chairperson said that he thought the Committee could move on to more detailed discussions, but questioned if there was more that the parties wished to know before then. Many arguments had already been advanced at public hearings, and some draft clauses had even been proposed. It was not necessary to have a full presentation again of those arguments. Originally, when the public interest defence was presented, the context was different. Although it was originally presented as a general defence, the later research and presentations noted that it was, in other countries, restricted to those in the intelligence community, was not a general defence upon which everyone could rely, and would be brought in only after certain other procedures had been followed, similar to the South African whistleblower legislation.

Mr Swart said that the Committee, having held the discussions, then perhaps needed to debate whether there was a possibility of having a narrow public interest defence, as opposed to not having one at all. There was a mandatory override, in relation to section 46 of PAIA. He reiterated that a public interest defence construed along narrow lines might be more acceptable to the ANC.

The Chairperson noted the point. There was no need for detailed debate at this point.

Dr Oriani-Ambrosini said that he had identified four main issues – relating to the public domain, national security, public interest and the issues about appeal, review and classifications. He personally wished to have some more information on what “national security” was, and how it was defined in practice. He believed that in the United States of America (USA), national security was basically whatever the government said it would be. He asked about the process of review in other countries. The South African Bill was already more progressive than the USA legislation.

In relation to the public interest defence, he felt that it would be useful to get a summary of all the submissions, comparative studies and draft proposals. He then said that discussion was needed on the public domain defence, what issues it encompassed, when it started, and the comparative experiences and appeal procedures. He reiterated his earlier point that the “devil was in the detail”. There had been much debate around who should classify, and for what purposes. The Canadian model suggested that this Bill could deal only with intelligence matters. His understanding was that it was a horizontal function, and that it would cover intelligence considerations in every department where relevant national security considerations arose. He would like the comparative study to focus on that.

Ms Mentor said that when the Ministry of State Security had given a briefing, the term “in the interest of the public” was clearly defined. Members needed to spend some time on this.

Ms Mentor noted that this Bill was still entitled “Protection of Information Bill” but recalled that the Committee had already taken a decision that it should be “Protection of State Information Bill”. She asked what process must be followed to effect the change.

Ms Smuts said that the Bill still stood in the form printed in 2010. The Committee had agreed that the name would be changed.

The Chairperson reminded Members that the Committee had already reached the point where all appeared to be happy with the definition of “national security”, and he found it strange that there seemed to be a misunderstanding. One major change had been the recognition that “public interest”, as contained in the original Bill, was too wide and should be reduced to “national security”, and a draft definition was contained in the working draft produced earlier, but it could be debated. He said that subsequent drafts would also reflect the change to “Protection of State Information”.

Ms Mentor proposed that, in addition to the public interest override, any other issues that Members wished to have discussed should be sent to the Committee Secretary, in written form. This would enable other Members to study the issues and discuss them with their parties, so they could hold more informed discussions. She suggested that the Committee probably could not cover much ground today.

Ms Smuts supported Ms Mentor’s suggestion to put suggestions through in writing, but suggested that Members be given until Friday 8 April to do so.

Ms Smuts also said that she wanted to comment on issues that she had raised briefly at a previous meeting. She asked for confirmation that the Intelligence Services Act already criminalised the divulging of classified information by intelligence operatives, but noted that the Committee should perhaps do more on this, as this did not seem to be sufficient. She also said that South Africa needed to have a public interest defence that would be generally available. It would be most used by the media. Not a day went by without fresh indications that corruption was threatening the intelligence services, as illustrated by the recent arrest of a senior intelligence officer, which gave weight to the necessity of having such a defence. 

The Chairperson intervened at this point. He did not want to stifle the arguments that Ms Smuts was presenting, but pointed out that if the Members were in agreement that they would put their issues in writing, and motivate them, then Ms Smuts’s comments would be more usefully presented at a later date, once the other Members had been given the chance to study and consider what she was saying. If Members agreed to the principle that these matters should be put in writing, then there was little reason to discuss them now.

Mr Z Maziya (ANC) raised a point of order, saying that Ms Mentor’s proposal had been made, and was seconded by Ms Smuts, with a suggestion that the date be extended. There was no reason for Ms Smuts to go into the issues now.

Ms Mentor reiterated that the purpose of her proposal was to give all Members time to engage with their parties, and to mull over the arguments, which would be achieved far better by having them in writing. She would not like to miss the important points that other Members had to make.

Ms Smuts said that she would not like to think that the presentation of written proposals meant that Members could not talk to each other, as she obtained great benefit from hearing and debating the views of other Members, which served to mature the debate. Even where there were initial disagreements, positions could start shifting in this way. She would like to say more now.

Dr Oriani-Ambrosini was in favour of Ms Mentor’s proposal, with one qualification. In the past, each political party had submitted a document with written submissions and proposed amendments. These had been discussed, and from there the issues of PAIA alignment had surfaced. The Committee had then proceeded to instruct the Office of the Chief State Law Advisor, and had taken opinions, as well as the presentation from the Ministry of State Security. After the problems with the tenure of the Committee, that process continued. He suggested that perhaps the political parties should now present another version of their proposals, supplemented from the comparative experience presentation, for discussion.  These could be collated into an “option” document. All Members were essentially trying to achieve the same aims of guaranteeing independence and liberty, and getting the State to do its job. These were not party options, but options confronting the country.

The Chairperson was not necessarily in agreement on this point, saying that they were rather options facing the Committee.

Ms Mentor said that Members seemed to agree on the principle.

Mr Maziya confirmed that no Member wished to frustrate the input of other Members, but also pleaded that Members should hold constructive engagement.

The Chairperson said that no Member would be prevented from debating matters. He had made it clear that he was not attempting to do so, but pointed out that it would be preferable to compile the documents first so that they could be fully debated from an informed position. He confirmed that Members should convey their issues for debate to the Committee Secretary before 8 April. He would leave the formatting to Members, although PDF format may be more secure. All Members were asked also to tell the Secretary how they wished to have the documents sent on to them.

The meeting was adjourned.


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