Protection of Information Bill: deliberations on Clauses 1 to 3

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

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

The Committee commenced its clause-by-clause deliberations on the Protection of Information Bill (the Bill), noting that the Committee had already agreed that the words “national interest” would be replaced by “national security”, and that Chapter 5 would be deleted, and consequential amendments following that deletion would be made. Members had made proposals, and he noted that all proposals would be referring to the numbering and wording of the original version of the Bill. Members agreed that the majority of the definitions would be discussed at the end of the deliberations, save where these directly affected the content or interpretation of clauses under discussion. The DA wished to make a counter-proposal on the Preamble, to that already made by the ANC, adding a third component to the effect that the Bill would be affirming the right of access to any information held by the State, as contemplated in Section 32 of the Constitution, that national security must be pursued in compliance with the law, including international law, and that national security would be subject to Section 198(c) and (d) of the Constitution. This proposal would be circulated. Further discussions on the Preamble would stand over until a later stage.

In relation to clause 2, the Members discussed whether the ANC proposal (which seemed to miss out some words) was proposing a deletion of clause 2(j), or amendment of the references to legislation. The DA and ACDP proposed that instead of deleting the references to the need to harmonise, this must in fact be emphasised, particularly in the light of discussions on the Promotion of Access to Information Act (PAIA) and that the State Law Advisors be asked to insert wording that would satisfy the ANC’s concerns that the naming of certain legislation was unwise when other legislation might also apply, and would emphasise the need to harmonise this Bill with other legislation, including considering whether an insertion of  “and any other applicable legislation” would be too broad. The DA then made a separate proposal for deletion of lines 3 through 14 of the Bill, since the DA believed that whilst there was a need to protect “valuable” information (of archival value), this should not be the function of the Minister of State Security. A proposal by another DA Member that the Committee should get a briefing from the National Archivist did not meet with general support, and the Chairperson asked that all Members refer to the submissions made by the National Archives during the public hearings. Whilst the Chairperson did not rule that the briefing would not be given, he asked that this request stand over.

In relation to clause 3, which dealt with the application, the DA reiterated its stance that this Bill should apply to “government” departments dealing with intelligence and security, or those divisions within departments that dealt with these issues, and gave its opinion that making this Bill applicable to “all organs of State” would be unconstitutional. Further discussion would be needed on matters of science and technology and international relations. The ACDP also supported a narrow application. The IFP indicated that its main concern lay with to what issues the Bill should apply, and believed that the emphasis should be on defining the limits to secrecy, the exceptions and defences. Whilst the IFP could not support the current wording of the Bill, it would be prepared to follow the ANC approach if other proposals around the scope of application and defences were accepted. The ANC had proposed the insertion of a new clause 3(1)(c), reading “all security services, as contemplated in Chapter 11 of the Constitution”, and the reason for this emphasis was that later in the Bill it was noted that security services personnel could not apply for exemption. The DA and ACDP questioned this wording, which they believed was tautological, since security services were already covered, and also noted that the South African National Defence Force and South African Police Services already had their own classification systems and protocols, and had indicated that they did not wish to be included under this Bill. The ANC called for a short adjournment to discuss its position, and then asked that the meeting be adjourned to allow for consultation with the party, which was granted. Members noted that the next meeting would be on 24 May.

Meeting report

Protection of Information Bill: Commencement of clause-by-clause deliberations
The Chairperson reminded Members that a decision had been taken at the previous meeting to commence with clause-by-clause deliberations. There had been firm agreements on the amendment of certain aspects of the Protection of Information Bill (the Bill) including the replacement of “national interest” with “national security”, which had then resulted in a number of consequential amendments throughout the Bill. There was also agreement that Chapter 5 of the original Bill should be deleted, as clause 11 had related to national interest and clause 12 to commercial interest. This led to other consequential amendments to the numbering and deletion of all references to “commercial information”.

He checked whether Members had any objections, and whether the Office of the Chief State Law Advisor (OCSLA) could be asked to effect those amendments finally.

When Members agreed, the Chairperson asked the State Law Advisors to attend to that.

The Chairperson asked that any proposals to be put forward by Members should refer to the numbering of the original Bill. He also suggested that the definitions clause be dealt with last. However, the last section of the definitions clause dealt with minimum sentences, and this had been moved to the offences clause, where Members may prefer to deal with it.

Dr M Oriani-Ambrosini (IFP) added that he had thought that the PAIA issues were still to be looked at. He would also like to propose, in relation to the definitions, that perhaps the Committee could give consideration to some critical definitions that could have an effect on the content or wording of other clauses.

Ms M Smuts (DA) agreed, particularly insofar as “national security” was concerned. She asked if the Committee would be able to discuss the new definition against what was in the working document and the original Bill.

The Chairperson noted, in response to Dr Oriani-Ambrosini, that there already had been discussions around PAIA, and the understanding was that this Committee would not be amending PAIA. He agreed that if necessary, the Committee could look at the definitions in the course of discussing the Bill, rather than right at the end. He noted that the Committee would return to the definitions of ”national security” as there would be considerable input that Members wanted to make.

Ms Smuts asked whether the Committee would be looking at the Preamble, since the ANC had made a proposal on that.

The Chairperson thought it would be more useful to come back to that later. There was not much that turned on this wording

Ms Smuts asked if she could be permitted to make a counter-amendment to the ANC proposal. The Chairperson had proposed that the preamble should include a reference to Section 198 of the Constitution. The DA agreed, but would like to add to it, and to propose one deletion. She noted that her proposal would be circulated to all Members, but she read out, in the meantime, that there should be a third component, to the effect that the Bill would be affirming the right of access to any information held by the State, as contemplated in Section 32 of the Constitution, affirming that national security must be pursued in compliance with the law, including international law, and that national security would be subject to Section 198(c) and (d) of the Constitution.

The Chairperson advised Members that this was not in the original proposal by the DA.

Ms Smuts said that this was because she had noted that the preamble was likely to be discussed later. She reiterated that she would forward this proposal to the Committee Secretary for circulation.

Clause 2: Objects

The Chairperson noted that a proposal was received from the ANC, relating to subparagraph (j), as set out on page 3 of the ANC proposal document.

Mr S Swart (ACDP) said that in the ANC document, he presumed that the words “be amended” should have been included before the references to other Acts.

The Chairperson clarified that presently, clause 2 (j) read “harmonise the implementation of this Act with the Promotion of Access to Information Act, and National Archives Records Services Act, Act 43 of 1996.” The proposal was to delete these words.

Mr Swart said that he did not see this in the ANC’s wording, and he had presumed that it wished to add to the wording.

The Chairperson said that the proposal was that this be deleted.

Dr Oriani-Ambrosini asked for the motivation.

Ms Smuts said that she had thought that the references were not comprehensive enough.

The Chairperson said that the reason was that a reference to the laws mentioned only might be too restrictive, and there was no reason to give preference to these two pieces of legislation only. Other laws may well also apply. He asked what harm there would be in leaving the words out, since these matters would be addressed elsewhere. He added that he did not think it was correct to reflect, as an object of the legislation, that this Bill should try to harmonise a range of statutory law.

Ms Smuts argued that the harmonisation was, on the contrary, crucial. For months, she had argued that any information bill must fit together with the Promotion of Access to Information Act (PAIA) and ought also to harmonise with the National Archives Records and Services Act, which dictated how matters of historic interest and necessity must be handled. She suggested that the Public Disclosure Act, Companies Act and anything else dealing with the public interest override should also be included. She thought that, instead of deleting the references to the two Acts already in that version of the Bill, in fact other references to the Public Disclosure Act and Companies Act should be added.

The Chairperson asked if she was submitting an amendment to the proposal.

Ms Smuts said that she would not be proposing an official amendment as she thought that clause 2(j) was acceptable as it stood.

Mr Swart wondered if a way out of the difficulty would not be to add the words “and any other applicable legislation”. He understood that there was a need to reach harmony with other legislation that was not specifically included. He was not sure whether this would be considered too vague, but it would have the effect of widening the clause. He agreed with Ms Smuts that the references to the need to harmonise legislation should remain, particularly because of the emphasis that Members had placed on PAIA. However, he pointed out that the difficulty lay with the ANC proposal, which did not contain a verb to clarify exactly what was meant.

The Chairperson said that the proposal had been made to delete, because this was not a comprehensive list.

Dr Oriani-Ambrosini suggested that the Committee should flag the issue, and move on.

The Chairperson proposed, and Members agreed, that OCSLA be asked to draft two alternatives. One would deal with deletion of clause 2(j), and the other would be to draft a suitable alternative that encompassed a wider range of legislation to be considered and harmonised.

Ms Smuts then presented the DA proposal for the entire deletion of lines 4 through 14 (which she later amended to lines 3 through 14). The DA believed that the Bill should deal with the classification of State information, and that it should not address the far broader issues. She reminded Members that State information, according to the Bill, was that generated, acquired or achieved by all organs of State. She had maintained from the start that this Bill should deal with information that ought to be classified for the sake of State security. However, this Bill also was concerning itself with “valuable” information, which, simply put, was information that should not be deleted or disposed of because it might be needed later, and its destruction or loss might impede the State’s future functioning. However, she contended that whilst she fully agreed with the need to protect valuable information, this should not be the function of the Minister of State Security, nor should he have any obligation to ensure that other departments kept their records properly. The Minister himself had indicated that he was only supposed to deal with national security. The DA believed that the objects of the Bill should be to provide for the classification and declassification of information, to create a system for review, to regulate, establish a database, criminalise espionage and hostile acts, and repeal the Protection of Information Act of 1982. She suggested that subparagraph (b), which referred to promoting transparency and accountability could be retained, to protect national security (not interest). She reiterated that the Minister of State Security should not be required to exercise a function for other departments, and reminded Members of problems that had arisen in departments such as the Department of Home Affairs, which should not be the responsibility of any other Minister.

Dr Oriani-Ambrosini said the IFP would not have any problem with the fact that there should be legislation that identified valuable information that should be preserved for posterity. Ms Smuts had raised a compelling point about where this should be dealt with. The Minister of State Security would not have the expertise to determine what information was historically valuable. He wanted to stress that it was necessary to have corporate memory in the country, and cited problems that had arisen with, for instance, documentation relating to Private Members’ proposals. However, he thought that this was probably a National Archive function, and so probably should fall under the Minister of Arts and Culture, not Minister of State Security.

The Chairperson asked if a second amendment was being proposed, and suggested to Ms Smuts that her proposal could be included as a second amendment to that of Mr Swart, which would then lead to deletion of lines 3 through 14.

Dr Oriani-Ambrosini said that the words up to “unlawful disclosure” seemed to be fine.

The Chairperson noted that at the moment the Committee was trying to get clarity from Ms Smuts.

Dr Oriani-Ambrosini said that he was trying to assist Ms Smuts, and that it seemed necessary to delete only from “destruction”, leaving “unlawful disclosure”.

Ms Smuts said that this would be covered in the definition. She was not deviating from what was contained in her written proposal, save that the deletion would apply from line 3 (not 4), to line 14.

Dr Oriani-Ambrosini noted that in subclause (b) the word “interest” would need to be replaced with the word “security”.

Mr Swart said that the Committee had already agreed that all consequential amendments would deal with this.

Dr Oriani-Ambrosini said that in that case he would withdraw that proposal.

Mr T Coetzee (DA) requested that the National Archives should brief the Committee on the keeping of records, as this was important to the classification of documentation.

The Chairperson reminded him that National Archives had made a presentation during the public hearings on a range of issues. He thought that it was not necessary to repeat this. The National Archivist had set out the position, named the challenges and had indicated that the National Archives would try its utmost to do what would be required of it under the Bill.

Ms Smuts agreed that she would also like to hear from the National Archives, as she felt it would assist this Committee to hear about how departments complied with the requirements, the types of information, and the Archives’ classifying functions, as it could throw some light on the degree to which the Minister of State Security should be dealing with ordinary paperwork.

Mr B Fihla (ANC) raised a concern that this was a side issue and that the Committee did not seem to be moving forward, but instead seemed to be trying to reduce the ANC’s arguments.

Mr Coetzee responded that with due respect, less than 10% of the Members currently present attended the public hearings. There might still be other Members who wanted to ask questions.

The Chairperson said that the fact that Members were not present at the public hearings was no reason to assume that they had not familiarised themselves with the documents and presentations.

Mr Coetzee emphasised that he had simply made a request and he did not think that there was a need for discussions. Members should indicate whether the presentation would be given, and the Committee could then move on.

Dr Oriani-Ambrosini thought a presentation would be useful.

ANC Members indicated that they were not in favour of the presentation.

The Chairperson asked that this issue be set aside for the moment. At the moment, the ANC was not in agreement that such a presentation was necessary. He was not willing to rule on it at this point, but thought it might be more useful to revert to it at a later stage.

Clause 3: Application clause
Ms Smuts said that the ANC seemed to have made a gesture in the direction of the DA’s position. She asked if someone could speak to the ANC proposal. She reminded Members that the DA believed that the application of the Bill should be limited to “government” departments charged with intelligence, or with divisions within departments dealing with intelligence and security, including foreign affairs matters. She said that the DA believed it would be unconstitutional to make this Bill applicable to all “organs of State”, and should the Bill be passed in that form, then the DA would petition the President not to assent to the Bill. She reiterated that the DA proposals were thus that the Bill’s scope be narrowed to deal with intelligence personnel structures, the modus operandi and such issues. The only matters that still remained to be discussed would then be the application to the departments dealing with science and technology and international relations. She said that she would like to hear the ANC’s motivation around its proposal.

Mr Swart indicated that the ACDP would also support the narrow definition for organ of State to limit this to departments dealing with international affairs and matters of security, and suggested that this could be an option that could be inserted. He agreed that the ANC seemed to have changed its stance on this issue, and also wished to hear the ANC motivation.

Dr Oriani-Ambrosini said that there were three possible options. Firstly, as outlined by Ms Smuts, the Bill could apply to intelligence matters and security matters being dealt with by those relevant departments. Secondly, it could apply to all organs of State. Thirdly, it could apply to all organs of State, judicial and natural persons (as set out in the current Bill). The IFP was not so concerned about to whom the Bill should apply, as with to what it applied. IFP believed that the emphasis should lie rather in defining the limits to secrecy, the exceptions and the defences. If, however, his proposals to protect rationality were to fail, then he would question the scope of the application and wish to shift the emphasis.

The Chairperson asked if Dr Oriani-Ambrosini was complaining about the proposal of the ANC.

Dr Oriani-Ambrosini said that if the wording of the Bill were to remain in its current form, then this would be a problem. If other proposals around the scope of application, and the correct defences, were accepted, then he would be satisfied to go along with the ANC’s proposal.

The Chairperson said that the ANC proposal was asking for addition of a clause 3(1)(c), to read “all security services, as contemplated in Chapter 11 of the Constitution”. Essentially, this was asking for specific emphasis that the Bill would apply to the security services. The reason was that, later on, the point was made, in respect of the exemption clause, that security services personnel could not apply for exemption.

Mr Swart said that, with due respect, he did not understand the proposal. “All security services” mentioned in Chapter 11 were police, defence and intelligence services. Those were organs of State, and so they would be covered already. It may be that the ANC wished to make a specific emphasis. He could support a further narrowing down of the application.

Ms Smuts said that the wording seemed to be tautological. It made no sense to specify “all organs of State”, and then specifically isolate and name one of those organs of State. She was appreciative of the gesture made by the ANC, but agreed with Mr Swart that the security structures would already be covered. She also questioned why the defence force and police were being added here, when they had indicated that they did not wish to be included under the Bill, since those services classified information under their own legislation. She had circulated some academic articles showing how they had built a position for themselves, and stressing that the South African Security Service, South African National Defence Force and South African Police Service (SAPS) each had their own classification systems and protocols. She said it seemed that government departments were talking to each other. This was one of the reasons why the Minister of State Security had stressed that he wanted to deal with intelligence structures. She thought that the ANC suggestion would not work, either from a legal or practical standpoint, and would imagine that many government departments would be opposed to it.

Dr Oriani-Ambrosini said he could not agree with Ms Smuts. He believed that it was important that the Bill should apply to the police and defence forces, and should override their existing legislation on this point, otherwise the types of guarantees for freedom and liberty that should be enshrined in this Bill would not apply to the very services that faced the greatest threats. South Africa should be fully alive to the risks of allowing the defence forces and police to operate under secrecy. A good Bill that struck the balance between freedom should apply to all.

Ms Smuts asked if Dr Oriani-Ambrosini was aware of the wording of the Defence Act. This sat alongside the PAIA. She asked why it was necessary to now incorporate other legislation under this Bill.

Mr Swart said that there was danger of conflict of laws if Dr Oriani-Ambrosini’s suggestion were followed. This Committee might want to consider the provisions around reasonable interpretation. He also asked that consideration be given to the tautological aspects, even if the words were not inserted. Members were grappling with these issues.

The Chairperson suggested a short adjournment for the ANC to discuss its position.

On resumption of the meeting, Mr Fihla stated that the ANC, after considering the proposals and arguments, proposed that there was a need for further consultation on the issue to try to reach a common approach. He proposed that the meeting should adjourn, so that further party consultations could take place.

Other Members agreed to this.

The Chairperson summarised that the State Law Advisors should report back to the next meeting on the issues already asked, but that for the moment no ANC proposals should be included for clause 3.

The Chairperson reminded Members that the Chief Whip had indicated that no meetings should take place during the constituency period. However, after 24 May there might be an opportunity to add further meetings to the programme, subject to the availability of Members. He also asked Members to consult widely on issues on which clarity was needed.

The meeting was adjourned.



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