Protection of Information Bill: New draft of Clauses 17 to 23: further deliberations

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

25 July 2011
Chairperson: Mr C Burgess (ANC)
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Meeting Summary

The Office of the Chief State Law Advisor presented a new draft of clauses 17 to 23, and the new clause around the Classification Review Panel. A new clause 17, with alternative and simpler wording, was tabled, but Members indicated that they preferred to work from the first option. Members were concerned about the wording of clause 17(2), particularly subparagraphs (i) and (iii), which seemed to suggest additional or alternative criteria for the decision for classify, and the drafters were asked to suggest alternatives, and also to change the order of the phrasing in the “new clause xxx” on page 7.

Members thought that the redrafted clause 22 could be tightened still further, to note that the head of an organ of state could review at any time, but must do so at least once every ten years. Subclause (4) should become subclause (2), and the wording amended to remove “criteria for continued classification” and refer simply to “conditions for classification and declassification of information set out in this Chapter”.

Members noted that the redrafted clause 23(3)(b) had attempted to align the Bill with the Promotion of Access to Information Act (PAIA) but thought that the wording, firstly, was repetitious. Secondly, the IFP Member raised the point that “a request for information”, in the context of administrative law, meant a request from one department to another, and therefore the clause needed to be clarified by addition either of a subclause stating that any person could trigger the review process, or by inserting a definition of “request”.  The IFP Member was also concerned that reference to “the application” might suggest an onus of proof on the applicant to establish certain facts, and the State Law Advisors were asked to look again at the wording. Members were also concerned that subclause (3) seemed to suggest additional criteria for classification  3(3) and the drafters were to clarify this.

The redrafted proposals for the Classification Review Panel (the Panel) were discussed in depth. Members firstly discussed some issues that did not appear in this wording, and the ANC clarified why it did not think that the involvement of the Portfolio Committee on Justice was necessary. The ACDP questioned why the words “bulk classification, or classification prescribed by the Minister” no longer appeared, but the ANC noted that this was not specifically excluded and would form part of the ten-year review. There was discussion on what information the Panel should receive, with Members finally agreeing that it should receive statistical reports. Members also agreed that there could not be automatic declassification if the reports were not submitted, or reviews were not done. It was noted that Parliamentary committees would be involved after the Panel’s report was submitted. The opposition parties withdrew their objection to the members of the Panel being security-vetted. The State Law Advisors were asked to clarify the wording relating to the ten-year reviews, in respect of existing and newly-classified documents, and Members would discuss further whether this should be included under this clause or under the transitional arrangements. Members agreed that it would be desirable for the Panel to be able to appoint its own staff, who would also have to be vetted, and the relevant subclause was to be amended. When discussing the constitution and appointment of the Panel, Members asked the State law Advisors to confirm whether only the National Assembly should be involved, and agreed to amend subclauses relating to the list of candidates to be submitted. The wording relating to qualifications of the Panel was also to be tightened. Discussing the disqualification from membership, Members asked that the position of those acquiring citizenship through marriage must be clarified, and the wording of subclause (c) and (g) was to be brought in line with the Constitution. The interviewing Committee should specifically address conditions in (h) and (i). Members generally agreed that the Panel should be obliged to hold a minimum number of meetings, and as some Members felt that it should meet monthly, this was flagged for further discussion. The wording around the quorum was to be redrafted. Members then discussed the clauses dealing with decisions of the Panel, in particular whether the Panel should be able to “confirm, vary or set aside” a classification decision, and “substitute its own decision” for one varied or set aside. The ANC and IFP stressed that the Panel should never be a classification authority, whilst the DA, ACDP and Cope suggested that the difficulty lay in the current wording, which did not set out clearly enough where the administrative function to amend would lie. Sub-clauses (2) and (3) were to be re-ordered, and the words “instruct the organ of state to change the classification decision, if necessary” were to be added. When discussing reporting, the ANC indicated its view that the Minister should not receive any review reports, to avoid any conflict, since the Minister had a role in appeals. The Panel’s annual report should instead go directly to Parliament, for consideration by the Joint Standing Committee on Intelligence. 

Meeting report

Protection of Information Bill:
The Chairperson noted that the Office of the Chief State Law Advisor had been asked to redraft clauses 17 to 23, and to do some revisions on the proposals around the Classification Review Panel. The attached document was circulated.

Clause 17
Ms Carin Booyse, Deputy Chief State Law Advisor, Office of the Chief State Law Advisor, took the Committee through the proposed changes set out in the attached document. She noted that some of the wording had been changed to tighten up the new clause 17, and to reflect the instructions of the Committee. She would highlight the significant changes. She indicated that the words “national interest” had been taken out of clause 17(2)(d)(ii) and (j). The wording of the former clause 21(2) was now incorporated into a new subclause 17(3). Considerations that may be taken into account when the decision was taken whether to classify information were now set out in a new sub-clause. Wording from subclause 17 had been added in as subclause (4), as it seemed to fit better at this place. She indicated that the square bracket should be removed, and the text should instead be underlined. The previous subclause would fall away.

Page 4 then contained a suggested alternative, whose essence was similar to what had been presented on pages 1 to 3, but it was somewhat simplified. She indicated that in this version, subclause (4) on page 6 was the old subparagraph (m) of clause 17.

Dr M Oriani-Ambrosini (IFP) asked how these versions differed.

Ms Booyse said that there was not difference in the meanings, and the essence of the clause remained, but the second version had been put into plainer language.

Mr S Swart (ACDP) noted that one example was contained in subclause 17(1).

Dr Oriani-Ambrosini said that he had been familiar with the old text of clause 17, and he had thought that this was approved.

Ms Booyse then highlighted the changes in the middle of page 4, in subclause (1), indicating what words had been deleted and substituted, and did the same for subclause (2). 

Dr Oriani-Ambrosini noted that there was little difference in (2), but there were differences in (1).

Mr Swart said that this process was very confusing. The alternative draft should be compared to the original Bill, and not to the first wording. If the Committee wished to opt for a simpler version now, then he suggested that another separate text should be provided, indicating, with brackets and underlining, how this differed from the original Bill.

Ms M Smuts (DA) commented on the alternative draft, saying that although the Committee had decided to refer to “conditions”, this had been diluted by the use of the word “guidelines”. A condition was stronger than a guideline. Subclause (2)(e) also diluted the conditions and criteria. It must be remembered that any classification must be done in terms of criteria set out in clause 15. The decision to classify information must balance openness against secrecy, and the demonstrable harm test should be applied. This clause appeared to be trying to introduce other, parallel criteria, using the words “Specific considerations for the decision to classify”.

The Chairperson clarified that on the previous day, the Committee had commented that clause 17 was likely to be very long and may need to be “cleaned up”, and it was possible that not everything had been quite correctly captured.

Mr D Maynier (DA) thought this was not merely a problem of drafting. The decision to classify should be set out only in clause 15, contingent upon disclosure, degree of harm and national security. He agreed that the alternatives to clauses 17(2), particularly in (i) and (iii), appeared to be introducing additional criteria which could have the effect of weakening the criteria in clause 15 and causing confusion in the classifier.

Ms Booyse clarified that the drafters had asked that the new draft remove what had been stated elsewhere. She said that her office could provide another text.

Ms M Mentor (ANC) agreed with Ms Smuts’ concerns, and thought a new draft might solve the problem.

The Chairperson repeated his question whether the Committee would prefer to study the first or alternative options.

Members agreed that the first option should be used as a working draft.

Ms H Mgabadeli (ANC) asked Members to consider again the implications of clause 17(2)(j) and asked why only scientific and research information should be included. She wondered if economic considerations might not also apply.

Mr Swart explained that this had been inserted because Members had realised that some scientific and research information would relate to national security and would have to be classified. 

The new clause, currently numbered “xxx”  on page 7, was then briefly discussed.

Ms M Smuts did not understand why the “New Clause” contained a reference to “guidelines”.

Dr Oriani-Ambrosini said that he understood the reasons, but did not like the wording. Clause 17 contained the conditions for classification. If the reasons why a document was classified no longer existed, then the document should not continue to be classified. He suggested that the words “The conditions for classification  set out in section 17 must persist for as long as the information remains classified” should be used.

Ms Smuts thought that the phrase should be worded the other way around, as “When the conditions for classification contemplated in clause 17 no longer apply / exist, the information must be declassified”.

Mr P Dexter (COPE) agreed with Ms Smuts’s version. People could not control the conditions.

Members agreed to this change.

Clause 22.
Mr Sisa Makabeni, State Law Advisor, Office of the Chief State Law Advisor, noted that clause 22(1) now provided that the head of the organ of State must, at least every 10 years, review the classified status of classified information. Clause 22(4) contained a reference to information set out in this Chapter. Clause 22(5) was substituted, to state that despite subsection (1), the head of an organ of state may review the classified status of information at any time. The report on regular reviews was now referred to in subclause (6).

Mr T Coetzee (DA) proposed that this clause could be much simplified, by stating that the head of an organ of State may review at any time, but must do so at least once every ten years.

Ms Smuts asked Mr Makabeni if there was a particular reason for drafting the clause in this way.

Mr Makabeni agreed that Mr Coetzee’s suggestion could be followed, as long as it was clear that a review must take place at least once every ten years.

Mr Landers asked that the wording of subclause (4) should be moved up to become subclause (2). He noted the reference to application of the criteria for “continued classification”. However, this had now been removed by the combining of clauses 17 and 21. The reference here should simply be made to clause 17.

Ms M Mentor (ANC) questioned whether the “criteria” and “conditions” were the same.

Ms Smuts clarified that they had now been combined.

Dr Oriani-Ambrosini suggested that the new clause (xxx) just discussed on page 7 should become clause 22(6). In relation to 22(4), there should be specific references to the applicable sections, including clause 16(2).

The Chairperson asked if there was any objection to merely referring to Chapter 7.

Dr Oriani-Ambrosini said that the problem with this was that some of the provisions might be included in clause 7, which was contained in a different chapter.

Mr Landers said that clause 7 did not refer to classified information. He proposed new wording for subclause 22(4), to read “When conducting a review, the head of an organ of state must apply the conditions for classification and declassification of information set out in this Chapter”.

Clause 23
Mr Makabeni read out the new provisions for clause 23, and pointed out that subclause 23(3)(b) was included to align this clause with section 46 of the Promotion of Access to Information Act (PAIA).

Mr Swart pointed out that the wording did not make sense and suggested that it should read: “If it is established, from the application submitted under subsection (1), pertains to information that will reveal evidence of…”

Dr Oriani-Ambrosini said that there were still some difficulties with the language. Firstly, subclause (1) related to the “request for information”. According to principles of administrative law, a “request” was usually a demand made by one organ of State to another organ of State. A request by a member of the public would be referred to as an “application”. Anyone should be able to trigger the review process.

Ms Smuts said that a “request” could be defined in the Bill.

Dr Oriani-Ambrosini continued that the second concern was that the guiding principle should always be that criteria for classification were set, and if they were not met, then the information must be declassified. The existing conditions for classification did not cover “imminent and serious public safety” or “environmental risk” that were now being introduced in subclause (3). If this remained, then there was a need to clarify whether these were additional criteria. He would certainly not want these to be seen as the sole criteria. He suggested that one way to solve this would be to reword (3) to read “If it is established that the Act has not been complied with, or the information would reveal evidence of (what was set out in (i) and (iii)” as an additional teat. He thought that making reference to the application would place an undue burden on the applicant to establish the facts.

Ms A van Wyk (ANC) said that this had been discussed on the previous day. This clause did refer to the person requesting information, who would not know, when applying, that the information was classified. The head of the organ of State, upon becoming aware that the information requested was classified, must then instantly review that classification. She thought that this wording was going quite far to aligning the two pieces of legislation.

Ms H Magabadeli (ANC) had been concerned about who could spark a review.

Dr Oriani-Ambrosini clarified that when this matter was raised on the previous day, the Chairperson had asked him to raise it again, once the new text had been prepared. He reiterated his concern that “request” was most likely to be interpreted as referring to an administrative action between two organs of State, in which case this would not achieve what the Committee wanted.

Dr Oriani-Ambrosini reminded Members that clause 17(2) set out that classification could not be used to hide anything, and that if this clause was not complied with, then information must be declassified. Clause 23(3) could not have greater status, simply because its wording might follow that in PAIA. If there was evidence of what was set out in the subclauses, then the information must be declassified. He repeated that it was presently not clear, from the wording, whether this was to be read in place of clause 17, or in addition to it. If the application did not comply with the Act, and if subclause 22(3) applied, then the information must be declassified.

Ms Smuts said that a definition of “requestor” was set out in PAIA and this could be inserted here. She understood the concerns with subclause (3), but said it was possible to refer to this as “an override” or, as PAIA did, as “mandatory disclosure in the public interest”.

Dr Oriani-Ambrosini said that he would prefer to see this completely reworded.

Mr Maynier suggested that, for purposes of clarity, a new clause 23(1) should be added, to specify that “any person may make a request for classification or declassification”.

Mr Makabeni said that the State Law Advisors had understood that all requests for information would be made under PAIA, and therefore the definition of “request” in PAIA would apply.
Mr Landers summarised that an individual would ask an information officer (under PAIA) for a document, but if the information officer then discovered that the document was classified, and could not be released, then clause 23 of this Bill would come into force. PAIA did not deal with this as well as Members were attempting now to deal with it.

Ms Smuts asked for clarification. She was not convinced that this clause was referring to the PAIA process, as that seemed to be set out in clause 28.

Mr Landers clarified that this clause dealt with the situation where a requestor did not know, when approaching the information officer, that the document was classified. He would only become aware of that when his request was refused.

Ms Smuts suggested that the Committee would then also need to look carefully at clause 28.

Dr Oriani-Ambrosini said that if the PAIA definition of “request” were used, this would address his first concern. He suggested that the wording “if a request in made, in terms of PAIA, for information..” could be added in to the wording.

Mr Swart said that there were also other Acts under which access to information could be sought. PAIA contained a schedule referring to other legislation.

Dr Oriani-Ambrosini said that then the words “a request in terms of PAIA, or a demand in terms of other legislation” could be used.

Mr Swart thought that this wording already catered for this, but said this would be raised again when the Committee discussed clause 28, and it may then become necessary to revisit this.

The Chairperson asked that Members move on. He felt that “request” as used in PAIA was adequately defined. This Committee had already decided, as far as possible, not to amend PAIA.

Dr Oriani-Ambrosini still thought the definition of “request” should be imported into the definitions section.

The Chairperson asked the State Law Advisors to note that.

Dr Oriani-Ambrosini then asked that the words “from the application” should be deleted from clause 23(3). It should make no difference how the facts were established.

Ms Smuts said that the onus surely rested on the organ of State.

Mr Landers suggested that the wording “if it is established from the request submitted in subsection (1) that the information pertained to ..” could be used.

Ms Smuts disagreed. She said that this related to the onus of proof.

Dr Oriani-Ambrosini clarified that if the current wording remained, the organ of state could raise the point that certain facts had not been well enough established in the application, and the wording did suggest that there was an onus on the applicant to establish the facts. However, if an organ of state already knew of certain facts, whether or not they were mentioned in the application, then it should not be able to hide behind this.

Ms van Wyk thought the wording was clear enough. The head of the organ of state would have to look at the reasons whether, despite the classification, the overrides should apply and the information should be given.

Dr Oriani-Ambrosini said that there was a difference between using “for” and “from”.

Mr Swart said that it was clear that everyone wanted this clause to be tied in to section 46 of PAIA and he suggested that the State Law Advisors should be asked to ensure that the wording was consistent.

The Chairperson agreed and asked the State Law Advisors to deal with this.

Proposed wording for Classification Review Panel

Ms Booyse noted that the redrafted proposals on the Classification Review Panel (the Panel) were now set out from pages 9 to 13. These reflected that the Panel may confirm, vary or set aside a classification decision taken by the head of an organ of state. It could, when setting aside a decision, substitute its own decision, but must, before doing so, afford the head of the organ of state the opportunity to respond. A decision of the Panel would also bind an organ of state, subject to any appeal that the organ of state may lodge with a competent High Court.

Mr Swart said that the wording could still be improved. There were still a number of differences between this document, and submissions made by other parties, and this seemed mostly to reflect the ANC’s suggestions.

Mr Landers said that elements of the DA, ACDP and IFP documents had already been incorporated.

Mr Swart said that the wording around the binding effect of decisions was new, but there were smaller points, such as the vetting and involvement of the Portfolio Committee on Justice (Justice PC) that needed to be finalised.

Mr Landers agreed with Mr Swart on the need to discuss these matters. He was not happy with the new wording referring to “one and a half times the numbers of Members” and did not understand why “with recommendations” had been added to the clause dealing with the submission of list of candidates.

Ms Booyse said that most of the discussions on the previous day were captured, and this was not to be considered as the final format, but was for discussion.

Subclauses under heading “Functions of Classification Review Panel
Mr Swart said that most parties were in agreement with the functions of the Panel. He asked why the words “including bulk classification, or classification prescribed by the Minister” had been deleted from (b), as well as the reference to information relating to the declassification.

Mr Landers said that the bulk classification provisions should form part of the ten-year review. However, he noted that this had not been specifically excluded, and would thus be included by implication.

Ms Smuts noted that the bulk classification was possible, and the question of severability was referred to in PAIA. She also made inaudible remarks about the Panel receiving notice of classifications

Mr Swart said that Mr Landers was correct that bulk classification would fall under “all classified information”.

Ms Smuts said that the parties must create a system that could not be used to conceal corruption. A really good system would be created if all relevant security departments were obliged to notify the Panel of how much was classified, and where. That would assist the Panel then in doing its random sampling and checking the justification for classification, and was a good safeguard.

Dr Oriani-Ambrosini said it was necessary to ensure that the Panel would work. There should be a flow of information from each department, to the Panel, who could then apply its mind to the classifications. If this did not happen, either on the side of the organs of state, or the Panel, then there would be a problem. He pointed out that many of the existing reporting requirements to Parliament were not complied with at present, and failure to report in this instance would be even more serious, because nobody knew exactly what might not be taking place. He strongly recommended that if, within ten years, (but ideally every year), the process of review had not happened, the information must automatically be declassified. This would “jolt” the departments into doing the reviews.

The Chairperson agreed that questions of non-compliance needed to receive attention. However, he felt that it was dangerous to suggest that classifications could simply be overturned, bearing in mind that the purpose of the classification was to protect national security. This could lay the way open for an official to sabotage the security of the country.

Ms Smuts did not think that the Panel would be working as Dr Oriani-Ambrosini had suggested. The Panel would be undertaking random sampling and if it discovered systemic problems, or wanted to set aside certain decisions, then it would act. The simple fact that an official had to notify the Panel of the classifications, and provide written reasons, were steps to safeguard the quality of the classification.

Ms Mentor agreed with the Chairperson. She questioned how the random sampling would work, and asked whether it was envisaged that a databank of classified State information would be created, or whether the information would be held by departments.

Ms Smuts suggested that probably each department had its own files.

Dr Oriani-Ambrosini said that it was clear that all Members agreed upon what must be protected, but this Committee had to legislate to cover as many eventualities as possible. There were many examples of information scandals in the past. This Panel could only assess what was placed before it, but, as illustrated by the Iran-Contra scandal in the United States, it was possible for a department to refrain from notifying the relevant authorities of what documents existed. At the very least, he felt that there should be an offence of wilfully withholding information from the Panel.

Ms van Wyk suggested that the Panel should be able to carry out its own checks and balances. A ten-year review would be sparked each year following the coming into operation of this legislation. Security departments would have to start giving reports to the Panel as soon as it had been established. Members had also agreed that all organs of State would have to give a list of all documents classified under the Minimum Information Security Standards (MISS), some of which would need to be declassified, and had discussed some of the transitional arrangements. The Panel would become an oversight body, giving annual reports to Parliament, so Parliamentary committees would then also be tasked with extra functions.

Mr Landers agreed with Ms van Wyk. The Panel would not only begin doing reviews in ten years time. The time periods would have to be brought in alignment with what was contained in PAIA (which provided that a record of longer than 20 years existence could not be refused, even a Top Secret document) and the National Archives Act. The Bill referred to a twenty-year period and provided that certain actions should be taken by the heads of the organs of state before being sent to the Archives. Here too, it was necessary also to decide whose archives would receive the information. He agreed also that the danger of non-compliance would have to be addressed.

Dr Oriani-Ambrosini agreed with the comments on the continuous function of the Panel. However, the meaning of clause 22(2) would then need to be clarified, since this said that the ten year review periods would commence only from the date of commencement of the Act.

Mr Landers said that every document would have been classified before this Act came into operation. All Members agreed that the Panel would have to begin its work on the documents that were more than ten years old already. He asked whether Dr Oriani-Ambrosini could suggest other wording.

Dr Oriani-Ambrosini felt that, as presently worded, this clause was open to different interpretation. He suggested wording such as “The first ten year period commences from the time when the relevant information was classified, or ten years from the effective date of this Act, whichever is sooner”.

The Chairperson said that there were two points. Once the Act came into operation, the ten year period would apply to information classified under this Act, and clause 22(2) seemed to cover that. However, information classified prior to this should probably be dealt with in another sub-clause.

Ms Smuts suggested insertion of a proviso, along the lines of  “provided that a review of all information classified by the Minister must be conducted, and, failing such review, must be declassified.”

Ms van Wyk asked whether this would be the best place to include this wording, or whether it should be dealt with in the transitional arrangements.

Ms Mentor was worried that this might suggest that the law was to be applied retrospectively.

Mr Landers said that it was not a question of retrospective application, and explained that whatever might have been classified as Top Secret in years past may no longer need to be classified this way, in which case it must be reclassified or declassified.

The Chairperson asked that the State Law Advisors prepare a new subclause to take care of the concerns expressed, and Members could decide later whether this should remain with the clause dealing with the Panel, or should be moved to the transitional arrangements clause. 

Mr Landers said that the Bill did not provide for declassification of sensitive information in bulk. This would be unconstitutional. The problems suggested by Ms Smuts would not arise.

Mr Landers then moved on to the issue raised by Mr Swart about the involvement of the Portfolio Committee on Justice (PC). He had thought that the reasons stated on the previous day were quite clear. The Panel would be reporting to the Joint Standing Committee on Intelligence (JCSI), and the ANC believed it would be unduly cumbersome to have the Justice PC involved as well.

Mr Maynier asked if the Panel had sufficient access to the documentation. The draft currently provided that the organ of state must “provide assistance as may reasonably be required” to the Panel. He wondered if the Panel would not need to have similar access to that of the Inspector General.

Mr Landers said that this indicated that the security vetting was then even more important.

Mr Swart referred to page 9, where the words “receive notification of any information having been classified or declassified should be submitted as soon as possible to the Panel”. It may still be necessary to flag this clause for a discussion on the practical implications of the Panel receiving notification.

Mr Landers said that the DA seemed to want not only notification of the statistics, but notification of any documents that had been classified, and this had severe practical implications.

The Chairperson said that he thought the process around statistics had been captured elsewhere in the Bill.

Mr D Stubbe (DA) said that a number of people were classifying documents, and wondered how, from a practical point of view, this notification would be achieved.

Dr Oriani-Ambrosini thought this would not as cumbersome or impractical as suggested by Mr Landers, since, at the point of creation, a description of the document classified could be copied to the Panel. He thought the Panel would need to be notified of the nature of what was being classified, rather than merely knowing how many documents had been classified.

Ms Mentor felt that this could compromise the security of the information.

Mr Landers said that the Panel would already be flooded with reviewing past documents, and said that what D Oriani-Ambrosini was suggesting something different to the DA suggestions.

Ms Smuts clarified that the DA had never requested that full details go to the Panel.

Mr Maynier suggested that a compromise would be for the Panel to receive a statistical report on the rate of classification.

Ms van Wyk pointed out that this was already stated in the functions of the Panel, which would receive a status review report annually. The Panel could also make its own rules on the time periods for submission of reports, the information required and the random sampling. She made the point that those tasked with the work in the past had attended to it properly, and the impression should not be created that this Bill had to fix current problems. There was nothing stopping this Panel from requiring statistics once a month. She thought the current wording was sufficient. The Bill should not attempt to micro-manage the Panel.

Mr Maynier agreed that the Panel could request a statistical review, but he thought it should be specifically legislated for, as it would be useful for the Panel, the JSCI and Parliament to monitor the rate of classification in the relevant services. A statistical report only would pose no compromise to the information.

The Chairperson summarised that the parties seemed finally to have reached consensus on this.

Ms Smuts then referred to subclause (3), and said that although she was not objecting to it, it was usual for an independent body to have its own staff, rather than the organ of state providing staff to assist.

Mr Landers asked what expertise was sought by the Panel for the staff, and where this person would be sourced. He asked how long any training might take.

Dr Oriani-Ambrosini said that the main issue was that in practice, the staff did do a substantial part of the work. If the Department of State Security were to supply administrative assistants to the Panel, they might end up reviewing the Department’s work. He suggested that wording be included, to the effect that, with the concurrence of the Minister of Finance, the Panel may provide its own staff, provided that they had been vetted.

Mr Coetzee (DA) said that if the members of the Panel were not vetted, then the object of classifying documents would be defeated.

Ms Booyse asked from which budget the Panel would be paid.

Ms Smuts said that this would come from the State Security budget.

Mr Swart agreed that this would be useful. He said that the words “and staff” could be added to the subclauses dealing with remuneration on page 12. He suggested that Dr Oriani-Ambrosini provide his suggested wording to the State Law Advisors.

Subclauses under heading “Constitution and appointment of Classification Review Panel”
The Chairperson confirmed that Members were happy with subclause (1) under the heading “Constitution and appointment of the Panel”. He asked for comment on other subclauses.

Dr Oriani-Ambrosini questioned whether it was not more correct to refer to “Parliament” or “The National Assembly”.

Mr Swart said that because the JSCI was involved, he thought that “Parliament” should be used. However, he asked whether the appointment of the Inspector-General had to be approved by both houses of Parliament. If not, then perhaps only the “National Assembly” should be referred to in subclause (2), as also in subclause (3).

Ms Boosye noted that Joint Rule 31 seemed to suggest that a Joint Committee should report to both houses.

Mr Landers made the point that the JSCI was a Joint Standing Committee, and he and Ms Mentor thought that the Joint Rules did not apply to it.

Mr Swart suggested that a legal opinion on that should be furnished by the State Law Advisors.

The Chairperson added that the JSCI was established by an Act, and it might be necessary also to look at amending its functions, so he asked the State Law Advisors also to consider that point.

All Members agreed with the deletion of the reference to “one and a half times the number” of panellists.

Mr Swart also thought that the words “with recommendations” should be deleted. The phrase should simply read “submit a list of suitable candidates to the National Assembly for approval”.

The Chairperson then confirmed that the parties were happy with subclause (4), on page 10.

The Chairperson then turned to subclause (5), dealing with the experience of candidates for appointment to the Panel. He asked whether the wording of “the Constitution and the law” was not referring to two separate things.

Dr Oriani-Ambrosini asked if it was intended to refer to expertise in Constitutional Law, as a person who had expertise in this may not have expertise in the law, broadly speaking.

Ms Mentor wondered how an expert in the Constitution could not also have expertise in law.

Mr Landers clarified that the Chairperson of the Panel should have at least ten years’ experience as an advocate or attorney. At least one other member should have expertise in law generally, and in the Constitution.

The Chairperson said that the JCSI could assess expertise during the interviews.

Mr Swart said that it was more important to strike a balance on expertise in national security matters and in access to information.

Mr Landers said that the wording seemed to assume that a person having expertise in constitutional law would have expertise in access to information, and this might not be correct.

Mr Swart said that the key to achieving the balance was expertise in access to information.

The Chairperson asked whether Members wanted to restrict the expertise to each Panel member, or to try to obtain the areas of expertise across the whole panel. Members agreed that that “the Constitution and the law” should be included.

Mr Swart suggested that, from a drafting point of view, the words “at least” should appear with the main wording of subclause (5), not repeated in each of the subparagraphs.

Mr Maynier asked whether at least one panellist should be a member of the South African Human Rights Commission (SAHRC), in view of its involvement with PAIA.

Dr Oriani-Ambrosini  noted that those functions were to be removed from the SAHRC, and Mr Maynier’s suggestion was not supported.

The Chairperson asked for comment on the wording “understanding of national security”.

Mr Swart thought that the words “knowledge and experience” should be used instead of “understanding”.

Mr Landers agreed with Mr Swart, and added that subparagraph (a) referred to “expertise”, and “understanding” did not imply a sufficient level of expertise.

Members agreed to substitute the word “understanding” with “knowledge and experience”.

Mr Swart noted that although the opposition parties were initially opposed to the idea of vetting for the Panel members, this objection was now withdrawn.

Mr Landers pointed out that subclause (3) must be amended to state that the Panel’s staff must also be security-vetted. In answer to a query from Dr Oriani-Ambrosini, he added that the “security clearance certificate” was already adequately defined.

Subclauses under heading “Disqualification from Membership”
Ms Mentor was not concerned with the subparagraphs (a) and (b) but said that there was a need to ensure that those who married South African citizens were dealt with.

The Chairperson said that the advertisement must specify that all applicants would have to forward their identity documents, and another process would be followed for the vetting.

Mr Swart said that Ms Mentor’s concerns seemed to be covered by subclause (7), as a person could not be appointed without the security clearance certificate.

Dr Oriani-Ambrosini asked whether the reference to “permanent resident” should be amended, to make it clearer that ordinarily resident was being referred to.

Members agreed that the word “resident” should be used instead of “permanent resident”.

Ms Mentor asked the drafters to check whether it was necessary to tighten the wording to cater for those acquiring citizenship through marriage.

Dr Oriani-Ambrosini suggested that, in subclause (c) the words “under the Republic” should be used instead of “under the State”. were more commonly used than “under the State”.

Ms Smuts said that although a public servant could not be appointed, it was necessary also to cater for those in the employ of parastatals.

Ms Booyse clarified that this wording was not lifted directly from any other legislation, but could be tightened.

Mr Swart said that section 47(1)(a) of the Constitution referred to “anyone appointed by or in the service of the State, and receives remuneration for that service or appointment”.

The Chairperson, after further discussion, asked the drafters to substitute the wording of subclause (c) under the Disqualifications heading, with the same wording as the Constitution used.

Various Members queried the meaning of “movement” and “organisation of a party-political nature” under subclause (e), and decided to flag this for further debate.

Mr Swart said that the wording used in subclause (g) under this heading was different from the wording of the Constitution, which referred to “anyone declared of unsound mind by a court in the Republic”

Members agreed that the wording as used in the Constitution, at section 47(1)(c), should be substituted.

Ms Mentor believed that subclause (h) under this heading was not in line with the Constitution. All those who might have been imprisoned, without the option of a fine, for political reasons, would be excluded, and she suggested that the Constitutional wording should be captured here too.

Ms Smuts appreciated her point, but said that the provision had been inserted in the Constitution to cater for Members of Parliament.

Mr Landers added that if this Bill made reference to those sentenced prior to commencement of the Act, those convicted for non-political reasons would still be able to apply.

Dr Oriani-Ambrosini said that if someone had been convicted of a crime other than a political crime, this would come out during the security clearance procedures.

Mr Maynier cautioned that the vetting system had been fallible in the past.

Dr Oriani-Ambrosini said that the wording in subparagraph (i) was too vague, referring only to “on account of misconduct”.

Mr Dexter thought that this was not referring to directors of companies, and asked that the drafters check the wording, which should make reference to someone such as a trustee removed by the court.

Ms van Wyk clarified that this was not limited to trustees, but anyone appointed to “an office of trust”.

Mr Swart agreed that the clause was intended to include fiduciary duties, and he wondered if the words “following a court conviction” could be added.

Dr Oriani-Ambrosini agreed, saying that the interview committee should not need to question whether the removal was correct or not.

The Chairperson pointed out that not all those who were dishonest were removed from their positions by a court, and in fact the majority of cases never involved any court or disciplinary action, but a person was told to resign. He thought that the wording should be left as it was; it was up to the interviewing committee to establish the details.

Mr Swart said that “misconduct” implied various matters, including disciplinary steps. This must be specifically addressed during the interview, and in the vetting process.

Subclauses under heading “Vacation of Office”
Ms Smuts made some inaudible remarks and referred to section 194 of the Constitution.

The Chairperson said that a person would cease to become a Member if he did not comply with what was in subsection (1).

Mr Swart said that this was probably covered under (d).

Mr Landers questioned the reference to section 29 of the Bill, saying that this dealt with something else.

Ms Booyse said that this would be clarified, but it related to the disqualification process.

The Chairperson summarised that Members seemed to be in agreement that a member of the Panel could be removed if he or she no longer complied with subclause (1), or if security clearance was withdrawn.

Mr A Masiza (ANC) asked if there was not a danger that the JSCI might be micro-managing the Panel.

Mr Swart and Mr Landers disagreed, saying that since the JSCI appointed the Panel, it must also deal with removal from the Panel.

Mr B Fihla (ANC) questioned whether it was not too harsh to remove someone who failed to attend two consecutive meetings.

The Chairperson pointed out that this was failure to attend, without having made an apology.

Mr Landers clarified that the apology must be made in advance.

Ms Booyse pointed out that the Panel had to set its own procedure for meetings, and the way in which apologies must be tabled was set out under paragraph (2) of the meetings procedure.

Heading: “Remuneration of Members”
Mr Swart pointed out that the words “and members of staff” must be added into the clause dealing with Remuneration, after the words “Members of the Classification Review Panel”. He wondered, however, whether the subclauses dealing with remuneration and meetings should not be included in regulations rather than the Bill.

Ms Smuts felt that this must be included in the Bill, if the Panel was to be independent.

The Chairperson thought that, at the very least, the quorum should be stated, and the fact that the Panel should meet four times a year. Members were happy with the Panel determining its own procedure.

Subclauses under heading “Meetings of Classification Review Panel”
Dr Oriani-Ambrosini thought that the reference to “four times a year” should be removed.

The Chairperson said that the inclusion of a specific number would ensure that at least the Panel would meet. He asked if the Minister of State Security should determine how often it met.

Mr Dexter agreed that the insertion of a minimum number of meetings would ensure that the Panel did meet, although he was loath to try to prescribe the exact number of meetings, as it could meet more frequently.

Ms Booyse clarified that this was precisely the intention of the wording, so the Panel would determine its own process.

Mr Landers wanted to argue strongly for the Panel meeting once a month, given the volume of work it would have to do. This was supported by Mr Maynier.

The Chairperson and Mr Dexter did not agree, and Mr Swart pointed out that the Panel might decide to meet continuously for a whole month, but not in the following period.

The Chairperson said that the reference to monthly meetings was implying permanent positions. However, he flagged this for further discussion.

The Chairperson then referred to the quorum wording, saying that it was possible that one of the experts on a particular topic might not be present. 

Ms Booyse confirmed that even if not all five members of the Panel were present, the Panel could still take a binding decision.

Mr Landers suggested that better wording would be “If a quorum is present, the decision of the panel will stand” in subclause (4).

Mr Dexter agreed that the fact that the Panel was quorated did not necessarily include a power to take a decision, and this must be specifically stated.

The Chairperson asked that this subclause be amended by the drafters in line with Members’ suggestions.

Subclauses under heading “Decisions of the Classification Review Panel”
The Chairperson said that subclauses noted that the Panel was “confirm, vary or set aside any classification decision taken by the head of the organ of State, and subclause (2) provided that the Panel could “substitute its own decision” for a varied or set aside decision.

Mr Landers said that this seemed to be introducing a new concept, whereby the Panel itself would be attending to classification.

The Chairperson said that it was surely sufficient to say that the matter must be sent back for reclassification.

The Chairperson noted that the audi alteram partem rule was set out in subclause(3), and this, and the following (incorrectly numbered) subclause seemed to be acceptable.

Mr Maynier said this went back to the question of what would follow if the Panel took a decision, but the head of the organ of State disagreed.

Mr Landers said that the Panel being able to substitute its own decision was quite different.

Mr Dexter said that Members must ensure that the clauses reflected what they wanted. The Panel would make a finding and announce it, telling the head of the organ of state to reclassify, within a certain time period. If the head of the organ of state did not appeal that decision, then once the period expired, the head was bound to reclassify, or the document must be automatically deemed declassified. Administrative action would therefore have to flow from the decision of the Panel. The question was simply whether the head of the organ, or the Panel, followed through on the decision within the set time frame.

Mr Landers thought that the panel should not substitute its own decision.

Dr Oriani-Ambrosini agreed, saying the Panel was not a classification authority.

The Chairperson thought the problem might be solved by interchanging the order of subclauses (2) and (3).

Dr Oriani-Ambrosini agreed.

Mr Landers still felt that the reference to “substitute its own decision” should not be included at all.

Mr Dexter thought that if the order of the subclauses was changed, it would be more clear that once an order was given to the organ of State, it was given the chance to respond, and, if it failed to challenge the order,  then the decision was binding.

Mr Swart said that subclause (1) already gave the Panel the power to “confirm, vary or set aside”. That needed to be clarified.

Mr Landers reminded Members that he had stressed, from the outset, that the Panel was not a classification authority. Confirming, varying or setting aside an order was merely telling the organ of State that it must do something about this. The Panel could not substitute its own decision.

Ms van Wyk said that the changes must be read in totality and asked why Mr Swart thought there was a problem.

The Chairperson wondered if the word “vary” should be removed.

Mr Dexter thought that the concerns of Mr Landers went to the administrative action. The Panel would tell the organ to implement a re-classification, but it would still have recourse to the courts if it did not wish to do so.

Mr Landers said that the effect of the decision would be the same, but he was concerned about where the administrative powers lay.

Ms Mentor thought that “vary” was different from “reaching a finding in variance” with that of the organ of state.

Mr Swart suggested that in subclause (1) the word “vary” should be left in, but the words “and instruct the organ of state to change the classification decision, if necessary” should be added in.

Dr Oriani-Ambrosini said that if the Panel felt that something was seriously wrong, it might not fix the problem merely by reverting to the state department, and he suggested that it would be useful to allow the Panel to fix the problem itself, rather than relying on someone else to do so, and then still have to follow up on it.

Ms van Wyk felt that Mr Swart’s suggestion would address the concerns.

Subclauses under the heading “Reporting”
The Chairperson noted that Members had no objection to subclause (1)

Mr Landers said that the ANC had reconsidered the role of the Minister in this process. Other bodies reported directly to Parliament, without going via the Minister, and the ANC suggested that the Panel do the same. This was because the Minister played a role in the appeals process, and it was inappropriate, perhaps even unconstitutional, for the Minister to be involved in anything to do with the review, even to the extent of receiving the Panel’s report.  The Panel should therefore table reports to the JSCI or Parliament. The form and content of the Report should perhaps be developed as it went along.

The Chairperson asked if the Annual report should go to the JSCI and to Parliament.

Mr Landers confirmed that this would be acceptable.

Ms van Wyk added that sections of the Panel’s Annual Report, which was the open report, may also be dealt with by other Parliamentary portfolio committees.

The Chairperson asked the State Law Advisors to amend those subparagraphs referring to the involvement of the Minister.

Members agreed to subclauses (5) and (6).

The meeting was adjourned.



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