Protection of Information Bill: tabling political party submissions & discussing future meetings

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

14 April 2011
Chairperson: Mr C Burgess (ANC)
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Meeting Summary

The Chairperson noted that all parties had now submitted and circulated copies of their submissions on matters needing to be debated, and some proposed amendments to the Protection of Information Bill (which Members had agreed should be renamed ‘Protection of State Information Bill’). However, since some Members had not had the chance to study the proposals in depth, owing to other Parliamentary commitments, a formal proposal was made that no discussions be held until the following Tuesday, when clause-by-clause deliberations should commence. Some Members expressed their disappointment that others were not fully prepared, but most said they appreciated the time constraints, and also pointed out that the documents with submissions from the various parties required discussion with their own parties’ study groups, as well as careful reading. All parties finally agreed that the deliberations should commence only on the following Tuesday. This meeting had already been scheduled for later in the morning, to allow Members with commitments to other Committees to spend time at those committees first. A request was made, and acceded to, that if possible a venue would be found that would allow some Members to slip out to attend to duties at other meetings, perhaps with short recesses being granted while they did so. Principles that had already been informally agreed upon would not be canvassed again in depth, but would instead be formally proposed as amendments. Discussion on principles raised in the submission documents would be held during the clause-by-clause deliberations.

Meeting report

Protection of Information Bill [B6-2010]: Future meetings
The Chairperson announced that Parliament’s constituency period would run from 22 April until 20 May. Chairpersons had been instructed not to allow meetings during that period. Meetings had therefore been scheduled for 19 April and 24 May, although there were still attempts to resolve a clash with other meetings in May.

The Chairperson noted that the proposals of the various parties had been circulated.

Mr L Landers (ANC) said that although he had received the submissions, he had not had sufficient time to study them fully. He made a formal proposal that no discussion be held today, but instead, after studying the documents over the weekend, Members should commence the clause-by-clause consideration at the next meeting. All parties had tried their best to find a common path, but it was clear that there were still some differences, which he thought would most usefully be discussed in the context of the clauses.

Ms D Smuts (DA) asked who had written the ANC submission. It seemed that those Members present at this meeting were not sufficiently prepared to debate it. However, she noted that she had studied the document, and offered to present it on behalf of the ANC, if they agreed. The ANC submission did respond to points made in the DA’s and ACDP’s submissions, and at least one of the ANC points, relating to thresholds and standards and the necessity to show a clear and likely risk of demonstrable harm before a document should be classified, was in line with points raised with the other parties.

The Chairperson noted that the ANC Members were not in favour of Ms Smuts presenting the ANC submission.

Mr S Swart (ACDP) felt that it would be useful to discuss some matters at this meeting. Whilst he appreciated Mr Landers’ position, he thought it might still be possible to get clarity on certain issues. He suggested that perhaps some of the time this morning could be used to highlight some of the issues raised, without spending too much time on them, and that if parties could not engage fully, then they could come back with answers at the later meeting. He agreed with Ms Smuts that there were many positive aspects in the ANC’s document, but that there were also other issues where there must be further debate. The main issue in his own document was that of the public interest defence, and he would like some discussion on that.

Mr Landers said that he did not have a problem in principle with this suggestion, but pointed out that since some Members had not had a chance to read through the documents, it would be difficult to have any meaningful engagement.

The Chairperson said that the public interest defence had been raised, but the ANC’s position was that this was not applicable in other countries, therefore it questioned why it should be adopted in South Africa. He did not think that further engagement today would take the process any further.

Mr B Fihla (ANC) noted that, because of the congested programme arising from budget hearings, many Members had not had sufficient time to read through all documents.

Mr Landers did not want to belabour the point, but said that Members could engage with the issue of the public interest defence during the clause-by-clause deliberations.

Ms Smuts asked Mr Landers, through the Chair, whether Mr Landers, as Chairperson of the Portfolio Committee on Justice, would be dealing with the State Liability Bill on the following Tuesday. If so, then she thought there might be some difficulties.

The Chairperson pointed out that the ad hoc Committee meeting had been scheduled from 11:00 to 13:00, to allow Members serving on the Portfolio Committee on Justice also to attend that meeting, from 09:00.

Ms Smuts said that the Chairperson himself had proposed that the wording of Section 198(d) of the Constitution should be inserted into the Preamble, and she agreed with this. She said that until now, intelligence and classification policy had come from the National Executive, through Cabinet. She said that “this (was) unconstitutional”, and it had not carried the stamp of authority of Parliament.

Mr A Maziya (ANC) raised a point of order. He was not sure whether it was correct for Ms Smuts to comment on the ANC’s submission, when the Committee was not officially deliberating this document.

Ms Smuts said that she was not commenting. She reiterated that Parliament had not had the opportunity to endorse classification, and that South Africa had effectively relied on the media to tell the public what was happening in intelligence and security matters. Even the Joint Standing Committee on Intelligence met behind closed doors, although it was supposed to promote transparency. It was necessary to fix this situation, and that was the reason why there should be a public interest defence, to protect investigative journalists who had acted properly.

The Chairperson pointed out that Ms Smuts was repeating something that she had said some time ago, and asked that this point be left aside for the moment. It was a sensitive matter, but the ANC Members wished to deal with these issues at a later meeting.

Mr Swart commented on the Chairperson’s statement that the ANC was not in favour of a public interest defence because it did not apply elsewhere. He noted that there was a public interest defence in the Canadian model, which he had specifically commented on in his submission. He merely wished to correct that point, and did not want to debate the issue now.

The Chairperson wished to correct a comment made by Ms Smuts, when she said it “is unconstitutional” for Cabinet to decide policy. This matter had not been before the Constitutional Court, which was the only body that could make a final pronouncement on constitutionality. Ms Smuts’ had stated her opinion, not quoted a Court ruling. Although he noted her points about investigative journalism, her statements did not necessarily have a bearing on what the Committee wished to accomplish today. He urged Members to try to avoid repeating issues already canvassed.

Mr T Coetzee (DA) thought that, with due respect, it would be futile to continue this meeting and agreed with the suggestion to adjourn so that Members could study the documents. However, he also noted the clash of dates between this Committee and the Portfolio Committee on Justice, and suggested that for this reason, discussions should only continue on 24 May.

Dr M Oriani-Ambrosini (IFP) said that the documents were weighty, and possibly required more than mere reading, such as discussion in study groups and obtaining political mandates. He wished to make two proposals. Firstly, since there did not appear to be “party positions”, and Members clearly agreed with the fact that State security needs should be balanced against the individual’s right to information, he wondered if the proposals by the parties should not be compiled into one consolidated document, reflecting optional wording where necessary. Secondly, he thought that a technical sub-committee could be appointed to supervise this job, and that the consolidated document could be brought back to the full Committee later.

The Chairperson noted that this did not seem to find general favour with other Members.

Ms Smuts said that she was not in favour of having a consolidated document with options, but she was in favour of appointing a sub-committee to take the work forward.

The Chairperson then asked for specific comment on the proposals made earlier. Firstly, he asked whether Members were in favour of cancelling the meeting scheduled for the following Tuesday.

The ANC Members indicated that they were not in favour of this.

Mr Swart said he would have difficulty with this date, but he was making every effort to attend.

Ms Smuts proposed that, in fairness to Mr Swart, the meeting should be cancelled, although she pointed out that some Members were in a position to proceed today, whilst others were not ready.

Dr Oriani-Ambrosini reiterated that there was a difference between having read the document and having the chance for “political digestion”. He suggested that greater progress might be achieved if matters were not pushed.

The Chairperson then asked for comment from Members on Mr Landers’ proposal to commence with clause-by-clause deliberations at the next meeting.

Ms Smuts thought that this would not be possible, pointing out that some Members needed to participate in budget debates on that day.

Mr Swart said he thought it would be acceptable.

The Chairperson said it would be unfair to cancel the whole meeting if one Member had to participate in budget debates.

Mr Coetzee pointed out that the programme had been approved already by the Members. He expressed his extreme disappointment, and took exception that on the one hand, ANC Members had raised the excuse that they had no time to prepare for today’s meeting, but yet were not prepared to accommodate the difficulties of others on the following Tuesday.

 Mr Fihla appealed for patience.

Mr Coetzee said he wished to raise a point of order, that this was not about patience, but wasting time.

The Chairperson ruled that this was not a point of order, and asked him not to continue.

Mr Fihla said that he was appealing for time to study the documents, and then to proceed clause-by-clause. He wished to move forward.

The Chairperson noted that there were some differences of opinion. Mr Swart had conceded that the matter should proceed on the following Tuesday. The Committee needed to start working on the document, and must remember that this was not the final debate, and that all Members would have ample opportunities to put their points across.

Mr Swart stressed that while he appreciated the comments from Ms Smuts, he had already anticipated that there might be problems on Tuesday, and had arranged matters so that he would be present.

Dr Oriani-Ambrosini asked if the meeting could be scheduled in a venue close to where other committees were meeting, with possibly a short recess of five minutes or so when Members had to perform duties in other committees.

The Chairperson said that a final venue still needed to be arranged, but he would try to accommodate this request to allow Members to slip out when they needed. He then summarised that Members, apart from Mr Coetzee, had agreed to begin on the following Tuesday, with the clause-by-clause deliberations.

Dr Oriani-Ambrosini reiterated that matters should not be rushed, so the point was whether the ANC would be ready. This Bill had been divisive, had been criticised by international media as demonstrating democratic degeneration in South Africa, and it was necessary to ensure that all parties debate it thoroughly. If it would be beneficial to allow more time for consideration, then he would be in favour of cancelling Tuesday’s meeting.

Prof L Ndabandaba (ANC) supported continuing on the following Tuesday.

Mr Coetzee and Ms Smuts withdrew their objections to the meeting on Tuesday 19 April, although they still thought this was unfair to the smaller parties.

The Chairperson noted that Members had informally agreed to change the name of the Bill to the “Protection of State Information Bill”. There was no need to discuss this point again, and it would merely be noted as a proposed amendment. Similarly, agreement had been reached on substituting “national security” for “national interest” and the State Law Advisors had already been asked to look at consequential amendments. However, the definition of “national security” had not been finalised, and Members would have the opportunity to engage further on that. Members would be working both with the original Bill and the revised working documents prepared by the State Law Advisors at the next meeting.

The meeting was adjourned.



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