Protection of Information Bill: New drafts of clauses 17 to 23, Classification Review panel, whistleblower protection, definition of “national security”; Deliberations on clauses 26 to 38

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

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

The Deputy Chief State Law Adviser took the Committee through the amendments proposed during earlier deliberations on the Protection of Information Bill.  The proposed amendments concerned clause 38; the accountability of the Classification Review Panel; the insertion of time periods and provision for automatic review in clause 23 as well as provisions concerning the Classification Review Panel.  A summary of the business processes for the classification, declassification and reclassification of State information was provided as an aid to the consideration of amendments to clauses 15, 17 and 21.

The ANC proposed the inclusion of a clause that provided protection for whistle-blowers.  The proposed clause was not debated by the Committee.

The Committee debated the proposed amendment to the definition of “national security”.  Members representing the opposition parties disagreed that the definition should include reference to “information peddling”.  Understanding of the meaning of “information peddling” varied although it was agreed that the provision of false information with the intention of destabilising the State was an offence.  The inclusion of the provisions concerning exposure allowed the classification of more types of information than was previously intended.  The Committee agreed to allow Members more time to consider the definition.

Members continued to deliberate on the Protection of Information Bill (the Bill). In relation to clauses 26 to 28, Members agreed that it would be useful if the Committee could be briefed by experts on Archive matters, and noted the need to check whether the same provisions were intended to apply to National and departmental Archives.

The DA presented its suggestions on clause 30, which related to the powers of the State Security Agency (the Agency), although these had been curtailed by the new amendments relating to the Classification and Review Panel (the Panel). The DA suggested that several functions of the Agency could be handled by the Panel, and that other functions were likely to be dealt with by the Regulator to be set up under the Protection of Personal Information Act. It remained concerned that the Minister of State Security could still make regulations governing both classified and valuable information, and was also concerned that SAPS, SANDF and the Agency itself were exempt from external review and monitoring. The State Law Advisors were asked to identify functions already assigned to the Panel, to isolate which clauses applied to valuable, and which to classified information, and to suggest wording to correctly capture the exclusion of SAPS and SANDF from monitoring by the Agency. This clause stood over for further discussion until the new Working Draft of the Bill was available. The State Law Advisors were also asked to comment on the types of disputes that may arise, to decide whether clause 31 needed amendment.

Under clause 32, the IFP Member raised a concern, supported by other Members that a person should not be convicted if he merely “suspected” that the document was classified. The ACDP asked that the elements of high treason and of espionage should be carefully checked against each other. Members agreed that although the minimum sentence should remain in respect of espionage that involved disclosure of top secret documents, it should not apply to the disclosure of confidential information, contemplated in clause 32(3). The ACDP still wished to discuss the defences, including a possible public interest defence. The DA questioned whether it was apposite to create an espionage offence under this Bill, but other Members stressed that it was necessary to legislate now for this offence, no matter how few prosecutions may result. Members then discussed whether the concept of “harm to the state” as well as “benefit to a foreign state” should be included. The IFP suggested that this was not necessary, since information was classified precisely because its release would result in harm. Members agreed to the DA’s suggestion that the words “with the intention of directly benefiting another state” must be added into each subclause. The IFP Member raised another concern that paragraphs (a) and (b) of each subclause appeared to create double jeopardy, and the State Law Advisors were asked to comment whether the “intent to benefit” would refer to the sale of information, and to the copying or collection of information. Members were requested to examine the wording of offences clauses in foreign legislation.

Under clause 33, The DA proposed that the offence of “hostile activities” should be removed. There was little difference between espionage and hostile activities, save for the concept of prejudice to the State, and there was no reason to create any offences other than espionage, possession and disclosure. Members noted that while the Canadian legislation referred to “hostile activities” this was in a different context, and the ACDP suggested that hostile activities, if included, had to be defined. The DA suggested that the words “or a non-state actor involved in hostile activities” should be inserted into clause 32, wherever appropriate. The State Law Advisors were asked to produce a draft, and to try to distinguish more clearly between the home and foreign state. Other issues were flagged for possible inclusion also at a later stage.

In relation to clause 34, Members agreed to check whether there was provision in other legislation for harbouring or concealing. For clause 35(3) and (4), Members suggested refinements to the wording. The DA questioned whether it was correct, in this clause, to refer to “state information”, which would include valuable information, since there was other legislation to protect valuable information. Members asked for further advice on whether offences in embassies would be regarded as committed inside the Republic. Clauses 37 and 38 were accepted, although the DA also noted its intention to argue for inclusion of a public interest defence. The DA also noted its objection to clause 39, which would be discussed on the following day.

Meeting report

Consideration of the Proposed Amendments to the Protection of Information Bill
Ms Carin Booyse, Deputy Chief State Law Adviser, Office of the Chief State Law Adviser took the Members through the amendments requested by the Committee during earlier deliberations on the Bill.

Clause 38 - Disclosure of classified and related information
Mr L Landers (ANC) suggested that the minimum conviction period of three years was omitted.

Dr M Oriani-Ambrosini (IFP) queried the omission of the phrase “outside of the manner and purposes of this Act”.  He suggested that the words “and related” were omitted from the heading of the clause.

Mr S Swart (ACDP) indicated that the maximum period of imprisonment of five years would be reviewed at a later stage when the Committee considered all the penalties included in the Bill.

The Chairperson asked the State Law Adviser to omit the minimum period of imprisonment from the proposed amended clause and to delete the words “and related” from the heading.

Ms D Smuts (DA) suggested that the proposed clause was amended to read “The Classification Review Panel is accountable to the National Assembly and must report on its activities and the performance of its functions at least once a year”.  The annual report and other reports of the Review Panel would be dealt with in accordance with the normal Parliamentary procedures and there was no need for the proposed sub-clause (2).  The reports of the Review Panel could be compared to the reports of the Human Rights Commission, requirements for which were not legislated.

Mr Swart agreed that sub-clause (2) be omitted.  He pointed out that the relevant Parliamentary Committees were entitled to receive the reports of an entity for oversight purposes.

Ms A Van Wyk (ANC) said that the annual report of the Review Panel had to be submitted to Parliament and made public.

Dr Oriani-Ambrosini agreed that the reports of the Review Panel would be subject to the general Parliamentary rules governing such reports.

Mr Landers referred to the proposed provisions on reporting included in the document listing the proposed amendments (page 10).  He suggested that sub-clause (2) was amended to state that the Review Panel must table its annual and other reports to Parliament instead of submitting such reports.

Mr D Maynier (DA) supported Mr Landers’ suggestion.

The Chairperson asked the State Law Adviser to amend the proposed provisions on reporting to substitute the word “submit” with “table” and to omit the proposed sub-clause (2) of the Accountability provision.

Clause 23 – Request for status review of classified information
Mr Sisa Makabeni, State Law Adviser, Office of the Chief State Law Adviser presented a legal opinion on making provision for an urgent matter to be brought before the Court if there was non-compliance with statutory time periods.  He outlined the general rights of persons applying to the Court for relief and summarised the ruling in the Brümmer case.  The Court had discretion to rule in a manner that was fair to both parties where the applicable legislation made no provision for condonation.  It was necessary to make provision for an applicant to first approach the head of an organ of State to request a specific time period.  If such request was refused, the applicant was justified in approaching the Court where the matter was considered to be urgent.  The Committee had to consider including provision for the Court to be approached for condonation in urgent cases.

Dr Oriani-Ambrosini agreed that provision should be made to empower the Court to provide relief if deadlines were not adhered to.  The key consideration had to be the violation of a Constitutional right rather than the ruling in the Brümmer case.  The legislation should anticipate that deadlines might not be adhered to rather than making provision for condonation.

Mr Makabeni pointed out that the Court had discretion but that it was better to include specific provision in the legislation.

Mr Landers suggested that the State Law Adviser drafted an appropriate clause.  His suggestion was supported by Mr Swart.

Insert time periods
Ms Booyse took the Committee through the proposed inclusion of sub-clause (4) to clause 23 that made provision for time periods applicable to the granting of requests for the declassification of classified material.

Automatic review
Sub-clause (6) to clause 23 made provision for the automatic review of the classified information relating to the request for declassification.

Mr Landers suggested that the words “with immediate effect” were inserted to avoid delay in conducting the review.

Mr Swart warned against placing too onerous duties on the head of the organ of State.

Mr Landers said that the head of the organ of State would be the Director-General, who would have other duties to perform but who should not be allowed an indefinite period of time to conduct the review.

Dr Oriani-Ambrosini suggested that the phrase “head of the organ of State” was replaced with “classification authority”.  He suggested that the timeframes applicable to less urgent matters were specified as well.  He suggested that provision was made for the declassification of information that could prove the innocence of a person accused of a criminal transgression.

The Chairperson said that the issues were debated during earlier deliberations and asked if the proposed amendment encapsulated the request of the Committee.

Mr Swart pointed out that Mr Landers had suggested the insertion of a timeframe.

Mr Maynier thought that there was merit in Dr Oriani-Ambrosini’s suggestion to make provision for timeframes to apply to instances other than urgent cases.

The Chairperson asked Members to consider and suggest an appropriate period of time that would be reasonable.

Mr Landers pointed out that the head of the organ of State did not have the authority to delegate the review of the status of classified information.

Dr Oriani-Ambrosini referred the Committee to clause 46 (6), which provided for either the Director-General or the classification authority to declassify information required in legal proceedings.  It was not clear which position carried the most weight.

The Chairperson requested the State Law Adviser to consider the issue and to submit a proposal.

Classification Review Panel
Ms Booyse explained that five alternative proposals were put forward for consideration.  Proposal 1 followed the provisions governing the Inspector-General; proposal 2 copied the provisions governing the Auditor-General in the Public Audit Act; proposal 3 was based on the provisions in the Promotion of Access to Information Act (PAIA) and proposals 4 and 5 put forward less detailed, simplified provisions to prohibit interference with the functioning of the Classification Review Panel.

The Chairperson favoured proposal 4 (see page 6 of the attached document).  Mr Landers agreed.

Mr Maynier suggested that proposal 4 was combined with the provision in proposal 1 that “no access to intelligence, information or premises contemplated in subsection xxx may be withheld from the Classification Review Panel on any ground”.  (see proposal 1 (9) on page 3 of the attached document).

Mr Landers said that the Review Panel should only consider classified information and that access to intelligence, other types of information or premises was not relevant.

The Chairperson pointed out that the key issue was that the Review Panel was not hindered or interfered with in any way.

Mr Maynier said that the intention was to provide the Review Panel with unlimited access and there should be no limitation.

Ms Smuts agreed that the provision should reflect the intention of the Committee.

Dr Oriani-Ambrosini supported Mr Maynier’s suggestion.

The Chairperson requested the State Law Adviser to draft a clause that combined proposal 4 with proposal 1 (9).

Other proposed amendments
Ms Booyse took the Committee through the proposed amendments to the provisions agreed by the Committee concerning the appointment of staff; Constitution and appointment of Classification Review Panel; Disqualification from membership; Removal from office; Remuneration of members and staff; Meetings of the Classification Review Panel; Reporting and Transitional arrangement (see attached document).  A new clause dealing with offences and a definition of “request for access” had been drafted.

Mr Landers suggested that the new clause dealing with the Constitution and appointment of Classification Review Panel was simplified (see page 7 of the attached document).  Sub-clauses (1) and (2) were not necessary as the Joint Standing Committee on Intelligence would propose candidates to the National Assembly.

Ms Smuts disagreed with Mr Landers as the proposed clauses were in accordance with the Constitution and common legislative practice.

Dr Oriani-Ambrosini agreed with Mr Landers’ suggestion.

Mr Swart remarked that the Committee had to decide if the Bill should include the Constitutional provisions or not.

The Chairperson asked Members to consider the matter for later debate.

Protection for whistle-blowers
Mr Landers introduced a new clause that was intended to provide protection for whistle-blowers, in line with existing legislation.  The proposed clause was:
“Any person who unlawfully discloses classified information in contravention of this Act is guilty of an offence and is liable on conviction for a period of imprisonment not exceeding five years except where such disclosure is protected under the Protected Disclosures Act or section 159 of the Companies Act or authorised by any other law”.

The proposed new clause was not debated by the Committee.

Proposed business process for classification, declassification and reclassification of State information
Mr Maynier pointed out that the document drawn up by the State Law Adviser had not been discussed.

Mr Booyse explained that the document summarised the business processes dealt with under clauses 15, 17 and 21.  The intention was to consider the flow of the business processes whilst dealing with the legislative provisions.

Mr Maynier approved the idea and suggested that matters concerning information that were not classified were included in a separate section.

The Chairperson asked the State Law Adviser to minimise the changes to clause 17 as far as possible.

Ms Booyse agreed to provide an amended version of clause 17 to the Committee on the following day.

Definition of “national security”
The Chairperson referred Members to the amended definition of “national security” (see attached document).

Mr Maynier reiterated the position of the Democratic Alliance.  The DA opposed the inclusion of the provisions on information peddling (iv) and exposure (v) and (vi).

Mr N Fihla (ANC) referred Members to the discussion held during the deliberations on 27 July 2011.  There appear to be confusion about the exact meaning of “information peddling”.

The Chairperson understood that “information peddling” meant the provision of information to the security services of the country that was deliberately distorted with the intention to prejudice or destablise the country.  It was common practice for security operatives to present deliberately distorted information as fact.

Dr Oriani-Ambrosini had attempted to research the meaning of “information peddling” on the internet but could not find an internationally accepted definition.  He referred to clause 40, which dealt with the provision of false information to national intelligence structures.  He disagreed that the definition should include “information peddling” as this could lead to unintended consequences.  Persons should be able to distinguish between right and wrong and the unwitting possession of false information should not be criminalised.

Ms Smuts agreed that clause 40 described the offence.  She felt that the explanation provided by the Chairperson did not add to the understanding of the issue.  There were many examples where false information had been provided and taken as fact.  She disagreed that intelligence operatives should be provided with protection that was not available to any other person.  The inclusion of “information peddling” in the definition was not logical.

Mr Maynier was critical of State security services that were highly politicised.  The concerns over the destabilisation of the State would not be addressed by the inclusion of “information peddling” in the definition.

The Chairperson felt that false information provided to State security services differed from false information provided to any other entity or person.

Mr Fihla quoted the Goebbels premise that a lie would be accepted as the truth if it was repeated often enough.  Information peddling had taken place when false information was accepted as the truth.

Mr Maynier pointed out that the Chairperson’s understanding argued that there was an intention to destabilise the country.  He expected the security services to be able to distinguish between true and false information.  He said that the Minister had made no mention of “information peddling” as a threat to national security in his briefings on the Bill.

The Chairperson said that “information peddling” occurred at the international level.  He cited the example of a Minister in a neighbouring country that had been jailed as a consequence of being given false information.

Dr Oriani-Ambrosini agreed that a crime was committed if false information was provided by persons who had been trained to do so.  The crime should apply to trained intelligence operatives only.

Mr Swart observed that there was disagreement over the inclusion of “information peddling” in the definition.  He agreed that information peddling should be an offence and wanted to know why the minister had not referred to such a serious threat when the Bill was tabled.  Likewise, the exposure provisions were very broad concepts that were subsequently introduced.  He suggested that the definition of “national security” was considered in context once the entire Bill had been deliberated.  The inclusion of “exposure to economic, scientific or technological secrets” again opened the door for a far wider interpretation of what information could be classified than was previously agreed by the Committee.

Mr Maynier wondered how other countries dealt with the issue if information peddling.

Mr Landers suggested that Members were allowed the opportunity to consider the definition.

The Chairperson agreed to flag the definition for later consideration and urged Members to undertake further research.  The definition of “national security” was central to the Bill.

Ms Smuts agreed that the definition was fundamental and pointed out that the Committee had approached agreement before “information peddling” and the exposure provisions were introduced.

Afternoon session

Clauses 26, 27 and 29: Declassification
Mr Landers noted that Chapter 8 of the Protection of Information Bill (the Bill) dealt with transfer of records to the National Archives, and Chapter 9 dealt with release of declassified information to the public. He wanted to highlight anomalies between clauses 26, 27 and 29. A head of an organ of state must review classified information before it was transferred to the National Archives (the Archives) or any other archives. Clause 26(2) noted that at the date which the Act took effect, records that were transferred were assumed automatically declassified. However, clause 26(4) said that classified records held by the Archives which had been classified for less than 20 years, were subject to the provisions of this Act. Then clause 26(6) referred to automatic declassification at the end of the protection periods set out in section 20. Clause 27(2) and (4) said there was no automatic declassification, unless the information had been placed into the national declassification database, in which case access to information would not be refused. This conflicted with the earlier wording that when information was sent to the Archives, it was declassified.

Mr Landers reminded Members that defence, police and intelligence services had their own archives, and this was recognised by the Bill. However, it was not clear whether those separate archives would deal with the information in the same way. However, clause 29 said that the Department of Defence’s Archive Repository was part of the national Declassification Database.

Ms M Smuts (DA) agreed that there were contradictions, and she suggested that Dr Duminy and Mr Harris, both of whom were experienced in archives, could be asked to assist with explanations as to what was meant, and Dr A Lotriet (DA) could also help the Committee on questions around the Repository.

Ms A van Wyk (ANC) said that Mr Landers had raised important points, which further illustrated the need for careful drafting of the transitional provisions.

Mr D Maynier (DA) asked whether it was intended that, once documents were declassified, they should go to the National Archives.

Ms van Wyk said that it would also be necessary to bear in mind that both hard copies and electronic copies were involved, and noted that the Department of Police, who had been told that it could not destroy anything, was running into problems of storage space.

Ms Smuts added that the Archives would not only deal with paper information.

Dr M Oriani-Ambrosini (IFP) did not understand Mr Landers’ concerns, and saw that there was some logic to the way the clause had been drafted. He explained his reading of the clause. Clause 26(2) dealt with declassification of documents, from the date of operation of the Act, that were sent through to the National Archives. However, clause 26(4) related to information that was already held by the Archives, and which would remain classified until it was declassified. Clause 26(6) related to documents that should have been declassified under Part B of Chapter 6, which would be automatically declassified on expiry of the (twenty year) period referred to in clause 20.

Mr S Swart (ACDP) said that the critical wording of clause 26(2) was “at the date on which this Act takes effect”. Although the wording could be improved it meant that anything transferred to the Archives from the date of commencement of the Act, would be declassified. He agreed that subclause (4) dealt with other records held by the Archives prior to the commencement date of the Act, which had therefore not been subject to automatic classification under subclause (2).

Mr D Stubbe (DA) said that whilst, for instance, police dockets, could still be sent to the Archives, they may still remain classified on transfer, which meant that they would have to be stored for another 20 years.

Ms H Mgabadeli (ANC) said that it would be more useful for the Committee to consider what it wanted. She seconded Ms Smuts’ proposal for a presentation by Archives officials.

Ms van Wyk also supported that suggestion. Members needed to be educated on this issue, to decide what they wanted, and give proper instructions to the State Law Advisors.

In answer to a question from the Chairperson, Members indicated that they had not had a chance to look extensively at the National Archives legislation.

Mr Landers said he was not sure who drafted clauses 26 to 29, but would like to hear from that person.

All Members agreed that further discussions stand over, pending a presentation by some expert in the field.

Chapter 10: Responsibilities of the State Security Agency (the Agency)
Clause 30

Mr Landers noted that the State Law Advisors had already been asked to assist the Committee on Chapter 11, and much of what had already been changed was linked with clause 30. This was the reason why he felt it would be useful to look at a new Working Document reflecting changes made to date (subject still to the re-draft of the application and offences clauses).

Mr Maynier tabled some suggestions on clause 30 for consideration by Members. This was a controversial clause, since it gave the State Security Agency (the Agency) wide powers. The drafters of the 2008 Bill had reflected that these functions should be carried out, not by the Agency, but by an independent protection and oversight authority. That was not included in the 2010 Bill, because it would have resulted, given the scope of the Bill at that time, in a large administrative burden. The Department of Police (SAPS) and the South African National Defence Force (SANDF) were excluded from the Agency’s responsibilities, except in certain respects. In light of the changed application of the Bill, and the independent protection and oversight authority mooted earlier, he proposed that Members consider importing some of the functions of the Agency, stated in clause 30, to the Classification and Review Panel (the Panel).

Ms van Wyk said that this did not differ very much from what Mr Landers was saying. Much of what was now contained under clause 30 would already be done by the Panel. There were elements of the “opt-in” departments that still needed to be discussed. That was why Mr Landers thought it useful to compare the clauses so far revised.

Ms Smuts reminded Members that the Regulator to be set up under the Protection of Personal Information Act would also look at state bodies, unless excluded, and this seemed inconsistent with this Bill, which was essentially giving the same functions to the Agency as had applied under the Minimum Information Security Standards (MISS). This Bill should deal only with classified information. The functions of the Agency must be curtailed.

Mr Landers said that there was little difference between the 2008 and 2010 drafts. He did not recall that the then-Minister, in 2008, had made a decision to digress from the 2008 version. He agreed that it might be sensitive to have the Agency being able to inspect all provincial departments in the Western Cape, for example. Clause 30 said that implementation and monitoring could include on-site inspections and reviews.

Ms Smuts stressed that she would not like the Agency to have access to her personal information held, for instance, by the Department of Home Affairs.

The Chairperson agreed that the narrowing of the application of the Bill would restrict the Bill to security departments, and some who may opt-in. Subclause (2) already said that two of the security agencies should not be investigated by the Agency. He thought that fears that the Agency would infiltrate all organs of state was no longer realistic, since most had been eliminated from the scope of the Bill.

Ms Smuts said that clause 48, would allow the Minister of State Security to make regulations governing both classified and valuable information, on a host of matters that were remarkably similar to the MISS system, including those that were the direct job of the new Regulator. The DA thus remained concerned that if the Minister of State Security was allowed to make subordinate legislation, this could result in the MISS being replicated.

Mr Maynier added that another concern was that SAPS, SANDF and the Agency itself were exempt from external review and monitoring, and perhaps Members should expand the functions of the Panel to monitor compliance in those three bodies.

Ms van Wyk emphasised that this was why she had made the point that the Panel had already taken over many functions, and it would look at SANDF, SAPS, intelligence and opting-in departments. These bodies were no longer to supply annual records to the Minister. If the Agency still needed to perform certain functions, then they could be clearly set out in clause 30, and there was much that could be removed. However, she would not like to debate the clause further at this stage. 

The Chairperson ruled that there would be no further debate upon the wording of clause 30 until the new Working Draft had been produced. He asked the State Law Advisors to identify the functions that had already been allocated to the Panel, and also to check and draw Members’ attention to which of the sub-clauses, and paragraphs 30(2)(a) to (h) applied specifically to valuable information, and which to classified information. The State Law Advisors were also asked to advise how the exclusion of SAPS and SANDF could be correctly captured in clause 30(2).

Clause 31
The Chairperson asked the State Law Advisors also to give further advice on clause 31. Since the application of the Bill had been reduced, it was likely that any disputes between organs of state would be very different from those contemplated when the Bill was originally drafted.

Mr Maynier suggested that since that the Minister of State Security might have a vested interest in this Cluster, a proposal had been made that the appropriate Minister to deal with disputes could be the Minister of Justice.

Mr Landers stressed that the ANC was opposed to any involvement of the Justice Portfolio Committee.

Chapter 11: Offences and Penalties
Clause 32

The Chairperson noted that the wording of clause 32 was consistent with international best practice on espionage offences. In most countries, espionage was, apart from murder, the most serious offence that could be committed.

Dr Oriani-Ambrosini wanted to comment both on espionage and on all other offences. In respect of espionage, he noted that clause 32(1) contained unusual wording, since it stated, after referring to the usual tests of “knew” or “should have known”, that a person could commit the offence if he “suspected” that the relevant document was classified. “Suspected” was not a legal term. He was worried that this encouraged a mindset of encouraging individuals to suspect neighbours and friends, and enlist individuals into doing the work of the Agency. He reminded Members that in order to prove guilt, in was necessary both to prove both physical conduct and the psychological aspect, the mens rea. He submitted that it was unreasonable to include “should have suspected” as part of the mens rea.

Mr Swart noted that until now, South Africa had not had a crime of espionage, but a common law offence of high treason. He asked that the elements of the existing crime should be checked, for consistency, against the new crime. He reminded Members of the decision that all minimum sentences would be removed, save for espionage offences. Whilst he agreed that espionage under clause 32(1), committed through communication of Top Secret information, was very serious, he was not sure that a minimum sentence should apply under subclause (3), and possibly (2), although this was to some extent dependent on the outcome of the debate on the definition of “national security”. He thought that for communication of “confidential” information (the lowest level of classified information), the alternative of a fine should be provided, as it would seem more consistent with proportionality. The Committee would also need to look at defences to the offences, and that would include a discussion around a possible public interest defence.

Ms Smuts said that she accepted that there may be an argument for creating the offence of espionage, but wondered if this was the correct place for it to appear. In America, the Espionage Act of 1917 had only been used four times, to prosecute leakers of information or whistleblowers, and academic opinion said that it was supposed to deal with “classic” espionage, not with publication of classified information.

Ms Smuts further suggested that it would be instructive to look at why provisions were written in a certain way. Both the espionage offence, in clause 32, and the hostile activity offence, in clause 33, were originally drafted, in the 2008 version of the Bill, without making reference to “classified information”, and although this was largely academic, it was an interesting point. The 2008 version of the Bill also specified “intention”. The 2010 version of the Bill did introduce the concept of espionage as related to classified information. Espionage, in the current Bill, involved obtaining and releasing classified information, with the intention of benefiting another state. Similar provisions applied to the hostile activities offence, and some commentators had argued that this should be based on “harm”. She would be arguing, at the appropriate time, for deletion of clause 33, as it was most likely to affect journalists, and because “hostile activity” was not properly defined.

Mr Landers made the point that the 2008 version of the Bill referred to “State information”, whereas the current wording narrowed this to “State information classified ..” in the three categories.

The Chairperson said that problems arose because the Promotion of Access to Information Act (PAIA) did not deal with classified information, because genuine State secrets were not protected. The only way to give that protection was to introduce a penalty for anyone wrongfully disclosing a secret, which was what this Bill attempted to do. A person selling classified information could be selling Confidential information, resulting, on conviction, to imprisonment for 5 years, or Secret information, resulting in 15 years imprisonment, or Top Secret information, resulting in 25 years imprisonment. The mens rea aspects raised by Dr Oriani-Ambrosini could be amended, but it must be accepted that sale of Top Secret information was the most serious crime revolving around information. He asked Members to look carefully at, and isolate any problems with the description of the crime. He felt that it was correct that the offence should be created in this Bill. He also mentioned that the high treason elements were different from espionage.

Mr Landers agreed with the Chairperson and said that whilst it may be possible to create a statute dealing with espionage, it was probably appropriate to deal with it here, because of the need to protect Top Secret information, and Members should consider what was already stated. He agreed that the minimum sentencing could be excluded from some categories. He thought Dr Oriani-Ambrosini had made a good point as it would be impossible to prove a “suspicion” that a document was classified, in order to establish mens rea. It would, on the other hand, be possible to prove :”ought reasonably to have known”, because a classified document would bear an indication of this on its face. 

Mr B Fihla (ANC) said that if a national of one country sold information to a foreign nation, it was clearly espionage, and whether or not the home nation had occasion to prosecute, it was still necessary to create the law, as a deterrent at least.

Mr Maynier proposed that the words “with the intention of directly benefiting another state” must be inserted into each of the subclauses.  He said that the Minister’s presentation to the Committee had touched on espionage, and it seemed that the problem was not “classic” espionage, but economic espionage, and he asked if this would be included. If a person was to steal a commercial formula, it was unlikely to affect national security but may affect the commercial viability of an entity. If it was not included, then it might be appropriate to punish such action with a lesser sentence.

Mr Swart said that it was necessary to decide what would constitute a “benefit to another state”. The Canadian legislation, when dealing with espionage, placed much emphasis on the harm caused to the home state, rather than the benefit to another state. He suggested that adding in words such as “where the disclosure increased the foreign state’s capacity to harm the Republic of South Africa’s interests”. He noted that there was a distinction drawn between “classic” espionage and leakages, and various defences were built in.

Ms Mgabadeli feared that the Committee might erring on the side of leniency if the Bill included considerations as to who had benefited, and what harm had been done.

The Chairperson opined that considerations as to whether harm was caused were “ridiculous”; this was a side issue to the fact that the secrets should not have been released.

Mr Swart objected to the use of the word “ridiculous”, saying that this concept was already in the Canadian legislation.

Mr Fihla thought that the question was not one of benefit, but of harm.

The Chairperson expanded on what he had been trying to say. The sale of a secret to another country, who benefited from that secret, might, but equally might not cause harm to the home state. If this was used as the only consideration, it did not take account of the wider implications, and the fact that the secret, which there was good reason to protect, had been released. He felt that referring to harm alone was not sufficient although he had no objection to including the concepts of both causing harm or benefiting another country.

Mr Landers noted that the main difference between clauses 32 and 33 was that the former referred to “benefit another state” whilst clause 33 referred to “prejudice the State”. It had been said that clause 33 was directed at the South African media. Taking into consideration the Canadian model, he was not sure why a decision had been taken to separate these two offences, and he thought perhaps they could be combined.

Dr Oriani-Ambrosini commented that the Bill currently dealt with three categories of offences. Disclosure involved taking classified information and giving it to someone who did not have a security clearance. Espionage was the unlawful taking of classified information, with the additional element of handing that information to a foreign state. Hostile activity also involved unlawful taking of classified information that would involve harm to the home state. This was in itself a contradiction. In terms of the definitions, conditions and criteria set out in the Bill, it was only possible to classify information that would harm the State if it were to be disclosed. Espionage involved a benefit to the foreign state. However, causing harm to the home state was already implicit in the fact that it was classified information (something that needed to be kept secret to avoid harm) that was being disclosed.

Mr Dennis Dlomo, Advisor, Ministry of State Security, agreed that espionage and hostile activity, as defined in the Bill, were closely related. The original concept was that espionage would focus on information sold to foreign states. However, post 9/11, the biggest threat around disclosure of information lay in providing that information to a non-state actor, thus prejudicing the home state. The Canadian definitions attempted to deal with the new threats, particularly in the context of non-government involvement.

Ms Smuts thought that the hostile activities clause (clause 33) flowed on from clause 32. The criteria for espionage could be broadened to include sale of information to non-government actors who were engaging in terrorist activities, simply by adding in the words “or a non-state actor” into clause 32. There was, in her view, no proper argument for clause 33, which imposed similar sanctions as clause 32, but which could also impact upon journalists.

Dr Oriani-Ambrosini then raised another point. The crime of espionage as set out in clause 32 went beyond the disclosure of classified information. Although ideally espionage should be handled in separate legislation, he accepted that this Bill was trying to correlate a number of different matters. However, apart from his previous comments on the use of the word “or suspected”, he also had a problem with the way in which the (a) and (b) paragraphs of each subclause were drafted, because he believed that a person could not do what was set out in (a), without having first done what was set out in (b). It was an established principle of law that a person should not be convicted twice for the same activity, yet these paragraphs were attempting to break the activity down into various components. The conduct in (a) and (b) was so similar that it created a double-jeopardy situation, which could result in a person being charged under both paragraphs, and therefore subjected to 50 years imprisonment.

The Chairperson did not agree, noting that what was envisaged in (b) was the copying of a record containing Top Secret information, with the intention of benefiting another State.

Dr Oriani-Ambrosini said that (b) could cover an attempted crime, but it referred to a number of elements, including making, obtaining, collecting, capturing or copying a record. He reiterated that in order for a person to deliver a record in terms of (a), that person would first have to obtain, collect, capture or copy that record. As the Bill was worded, that person could be charged under both paragraphs.

The Chairperson said that the same actions were not involved in (a) and (b). He noted that (b) referred to the unlawful obtaining, collecting, copying or capturing of a record, with the knowledge or intention of benefiting another state.

Dr Oriani-Ambrosini agreed that, as worded, there was no requirement of an “intention to benefit the state” as it would suffice if a person knew, or should have known, that it would benefit another state, whether or not he intended this to happen. He agreed that, as suggested by the DA, this should be worded as a crime of specific intent.

The Chairperson asked the State Law Advisors to comment whether the “intent” must refer both to the fact that the record was being obtained, captured or copies, or whether there was a need to have a reference to intention to benefit another state. He pointed out that a person could make a copy, but not manage to pass it on.

Ms Carin Booyse, Deputy Chief State Law Advisor, Office of the Chief State Law Advisor, said that the two paragraphs were different, as the intent to benefit would relate to (a) rather than to (b). This was implicit.

The Chairperson asked if intent to benefit also applied to the collection or copying, and whether it was implied that a person intended to benefit another state. He noted the State Law Advisors’ comment that this was implicit, but wondered if the clause should be worded specifically to clarify that the “intent to benefit” applied both to the capturing or copying in (b), and the handing over to another state in (a).

Ms van Wyk said that a person who was not authorised to copy or capture a document committed an offence by doing so. The intention behind doing so was different. She said that the intelligence community generally would see the copying as espionage.

Mr Landers asked what else such an offence could be called, if not espionage.

Dr Oriani-Ambrosini expanded on his concerns, noting that copies of documents marked Top Secret were made available to Cabinet Members, and the copying procedures were quite loose, which was why he felt that it was necessary to specify actual intention as part of the offence.

Mr Landers countered that “without the authority to do so” was the important point. An official assisting the Cabinet was not unlawfully making copies. The person handling the document would have security clearance.

Mr Fihla said that it was necessary to distinguish between the different categories of documents copied.

Ms van Wyk clarified that when classified information was properly passed on from one person to another, when both had the necessary security clearance, careful and precise records were kept.

The Chairperson added that every classified document had a “distribution list” and the number of copies of the document was known, so that it was possible to identify who had leaked it, when a leak occurred. People with the necessary security clearance received “original” documents, and each person would know who else held this document. He stressed that if an additional and unnecessary copy was made, without the intention to pass this on, this was not the same as making a copy with the intention to pass it on, but he did not think that the offence of copying was any less serious.

Dr Orinai-Ambrosini noted that the Chairperson had said, on previous occasions, that Members did not know of everything going on. He, personally, was not aware of significant acts of espionage, and he asked whether the Chairperson could inform Members of how serious the problem might be, so that they could know if there were potential threats and how the sanctions should thus be tailored.

The Chairperson responded that every Member must know what espionage was. All Members had agreed on that it was necessary to have classification, to protect genuine secrets from being disclosed. The most serious challenge, once there were secrets, was how to deal with those who wanted to steal and sell the secrets. That was what clause 32(1) was attempting to protect.

Mr Landers was most surprised to hear Dr Oriani-Ambrosini’s call for statistics on espionage, pointing out that the crime of espionage did not exist at present.

Ms van Wyk thought it was insulting to challenge the Chairperson on what was involved. In fact, South Africa had been involved in espionage cases throughout the world, and a number of instances would be found if an internet search was done. South Africa should not wait until there was a problem, before catering for the situation. The same, incidentally, applied to torture, since currently anyone committing torture could only be charged with a lower offence of assault.

Mr Maynier said that the Minister had, to some extent, addressed Dr Oriani-Ambrosini’s question, although he had not presented a convincing argument that there was a major threat of espionage.

Mr Swart thought it was necessary to create the offence, which was also in the Canadian legislation, and reminded Members of suggestions to add references to intention, and the possibility of harm. He reiterated that it would be necessary also to check that all elements of the current crime of high treason were captured, including indirect benefits and harm.

Mr Stubbe asked that sight not be lost of Mr Swart’s earlier point to consider offences related to release of Confidential information differently from Top Secret information.

The Chairperson asked that Members should check the wording of statutes in other countries, pointing out that sometimes the sentencing provisions, which would also be useful, were not in the main body of the statute.

Clause 33
Ms Smuts referred to the Chairperson’s remarks that when a classification regime was created, offences should also be created as a deterrent and these offences were essentially around possession and disclosure, each of which carried a five-year sanction. The DA questioned why “hostile activities” appeared in the Bill. The answer might lie in the wording and explanatory memorandum of the 2008 version of the Bill. In that Bill, hostile offences and espionage were not linked to “classified information” and so they appeared to create another tier, in addition to possession and disclosure, dealing with “any information”. There was no other apparent reason to have that distinction. As the 2010 Bill was currently worded, after amendment by the Committee, information was classified on the basis that there would be harm to national security if that information was disclosed. She asked what the distinction was between “prejudice” and “harm”. She thought that the inclusion of hostile offences was superfluous. It was strange that no submissions had questioned what a “hostile activity” was. She noted that the DA had initially been of the view that, at the minimum, it would be necessary to have a definition of “prejudice to the State”. However, it was now suggesting that the whole of clause 33 be deleted. There was no reason why possession and disclosure of classified information should carry a five year sentence, when that classification also rested on harm to the State.

Mr Landers noted that when the Promotion of Access to Information Act was signed into law in 2000, there had been considerable debate. Section 41(2) of that Act made reference to “hostile activities”, which was not defined. This was therefore not a new concept in this Bill, and would not have been included without good reason. The Canadian legislation also referred to “hostile activities” and he thought it would be instructive if Mr Dlomo could provide some information on how and why the Canadian law was changed, which may guide Members on why it was included here.

Ms Smuts interjected that the definition appeared under “subversive activities”.

Mr Swart said Members needed to consider the context of clauses 32 and 33, since the wording in clause 33 repeated that of clause 32, save for the concept of prejudice to the State. There was therefore no attempt to define a hostile activity, except that unlawful communication of State information formed an offence, which was already in clause 32(1). The Canadian model was very different. Under the Canadian legislation a head of government could refuse to grant access to information relating to, inter alia, subversive or hostile activities, which were listed. Whilst there might be a need to make reference to “hostile activities” it should not be in this formulation. Communication of a  classified document was not a “hostile activity”.

Ms van Wyk asked that Mr Swart continue to read the definitions, because the specific information in the Canadian legislation about information should be captured as well. If Members agreed that there was place in the Bill for hostile activities, then it should be reworded.

Mr Swart agreed that hostile activities should be captured somewhere, but the disclosure of a classified document should not be made into a hostile activity. In the Canadian legislation, hostile activities were listed as included terrorism, espionage and so forth, and so a hostile act had to be defined.

Ms van Wyk noted that sections 16(e) and (f) of the Canadian legislation referred to activities directed to the gathering of information, including information from any state aligned to Canada, or activities directed to threatening the state or its citizens in or outside the country. A disclosure of a hostile activity was in itself a hostile activity.

Mr Swart said that this would be covered under espionage.

Mr Maynier said it would be useful to go back to the mischief that it was intended to address, which was the disclosure of information to non-state actors. He agreed with Ms Smuts that the solution might be to delete 33, and then, after “to benefit another state” in clause 32, to add in the words “or a non-State actor involved in hostile activities”. A definition could then be provided for hostile activities, similar to that either in PAIA or the Canadian legislation, and this could include those involved in sabotage.

Ms van Wyk was concerned that the use of the word “mischief” could give rise to misunderstanding.

Mr Maynier said it had a legal implication. The main concern was around classified information being shared with non-State actors, such as Al Qaeda.

Ms van Wyk added that it was not limited to this, but could include others.

Mr Maynier agreed, but said that it should not cover journalists.

Ms van Wyk stressed that this was never the intention.

Mr Landers agreed that there was a misperception, caused by a particular interpretation, and this was certainly not how the Bill had been written.

The Chairperson asked if there would be any objection simply to removing the heading, as the words “hostile activities” did not appear elsewhere in clause 33. Mr Swart had raised the differences around inclusion of “prejudice”.

Mr Swart felt that if the heading were to be removed, the harm test added in, or the harm and benefit tests, then clauses 32 and 33 could probably be combined into one clause.

Mr Maynier said that technically, there was a difference, and that was who would benefit from the disclosure of classified information. In relation to espionage, it would be the foreign state, whereas in relation to hostile activities it would be the non-state actor.

Dr Oriani-Ambrosini repeated his point about the three categories of offences, saying that hostile activities was constituted by unlawful disclosure plus harm to a state, and espionage by unlawful disclosure plus disclosure to a foreign state. No matter what was added into the definition of hostile activity, the disclosing of classified information was already causing harm to the state. He could therefore not understand that there was any real difference to draw any distinction between the sentences for clauses 31 and 38. The word “prejudice” meant that a person would find himself in a worse position that he would have been if the action had not taken place. Clause 15 attempted to avoid this by making it possible to classify certain documents. The direct or indirect threshold was the same as the threshold for classification of information.

Ms van Wyk supported Mr Swart’s suggestion to combine the two clauses, and Mr Maynier's suggestion to insert the reference to “non state actors” into clause 32. She reminded Dr Oriani-Ambrosini that new proposals had been made around protection of whistleblowers.

The Chairperson noted that these would be incorporated into the new Working Document.

The Chairperson summarised the agreement of Members that clauses 32 and 33 should be combined, and asked the State Law Advisors to incorporate wording relating to the state, another state and prejudice from clause 33 into clause 32. He suggested that it might be useful to clarify the distinction, perhaps by definition, of “the state” and “another state”.

Mr Swart added that the concept of a non-state organisation should also be captured.

Ms van Wyk noted that Members might want to consider referring to states aligned to RSA, similar to the Canadian legislation.

Mr Swart said that the words “any state allied or associated with Canada” were used in that legislation.

The Chairperson suggested that, at the first stage, the drafters should simply combine the two clauses, and the other points could be raised again for insertion when the new draft was tabled to the Committee.

Clause 34
Mr Landers noted that all Members had agreed that the minimum sentence provisions, save for espionage, must be removed. He asked that this be done consistently, and noted that the words “subject to section 1(6) would also have to be removed wherever relevant.

Mr Swart noted that, now that clauses 32 and 33 were to be combined, the reference to clause 33 would have to be brought in line.

Ms van Wyk said that in the Protection of Constitutional Democracy against Terrorist Related Activity Act there was a similar offence of harbouring or concealing and asked that the wording in that Act be checked for consistency. Much attention had been paid to the drafting of that offence. Hostile activity could also be a terrorist act, and this clause could refer to agents and other roleplayers.

The Chairperson said it may be similar, but would not be exactly the same, because of the links in this Bill to espionage, but agreed that the State Law Advisors should have a look at the wording.

Dr Oriani-Ambrosini said that there was already a general common law offence of accessory after the fact.

The Chairperson ruled that there would not be any further discussion on this clause, pending further advice by the State Law Advisors as to whether it was covered elsewhere. If not, there seemed to be no objections to including it in principle.

Clause 35
Dr Oriani-Ambrosini commented that clause 35(3) related to computer programmes designed to overcome security measures, but he asked that this be refined by referring to those “specifically designed” to overcome security measures. If this was not done, firewalls and similar devices would fall foul of this clause, since everything in computer technology was a derivative of something else.

Dr Oriani-Ambrosini also suggested that, in clause 35(4), the words “intentionally or knowingly” should be added after the words “any person who”. As presently worded, there was no indication of the degree of mens rea required, so that a person, including a child, might do something, without having any intention of overcoming security measures.

Ms Smuts noted the reference to “state information” in subclauses (3) and (4), rather than “classified information, and wondered if this needed to be amended.

The Chairperson answered that the Bill also addressed the protection of valuable information from destruction loss and alteration, and this was the reason why there was reference to “state” rather than “classified” information.

Ms Smuts was not sure that this was correct. The Electronic Communications and Transactions Act had a long provision addressing this, and the Protection of Personal Information Bill would also protect valuable information, so she was of the opinion that this should be restricted to “classified” information.

Ms Smuts commented that there was another concern relating to South African policy on the use of open source, as opposed to proprietary software systems, on the basis that it was beneficial to share information. South Africa, in addition to committing itself to the technology, had also committed to open content. Tradeability of state information was being encouraged worldwide and databases were being made available to see  how they could be combined, which implied dangers to privacy. She asked about the implications of that on subclause 35(4), in relation to security matters.

Mr Dlomo responded that even the intelligence community was part of the Open Source ICT initiatives, and had even won an award for using this in early warning systems. The website for the African Intelligence Organisation was sponsored and launched in Cape Town. Many colleagues had been encouraged to participate in open sites. In 2010, the intelligence services had even invited those who were registered with the South African government to participate in the budget discussions and interact with the JSCI.

Mr Landers raised a question about subclause 35(e), noting that this made reference to offences committed outside the republic, and wondered about access to computers in embassies abroad.

Dr Oriani-Ambrosini said that embassies were formerly considered part of the foreign territory, but were now provided with immunity, and South African territories included military base sources.

The Chairperson asked the State Law Advisors to clarify this point. He also noted that all references to minimum sentencing must be removed from this clause.

Clause 36
Mr Swart asked under what circumstances a foreign operative, operating in South Africa under cover, was likely to register openly, pointing out that registration might, in some countries, result in the operative being targeted directly.

Ms van Wyk informed him that agents did register.

The Chairperson said that there was an accepted protocol, and CIA international agents were registered as agents in the country to which they were sent. Those people who were not registered were the true spies.

Mr Swart appreciated that this could happen when there was a joint venture.

Mr Landers confirmed that this happened even outside of joint ventures.

Dr Oriani-Ambrosini said he had a different understanding. In America, there was a blanket exemption granted to all diplomatic personnel, who would be all officials of a foreign government who were posted to a Mission. The Mission would include the military attaché, who would fall within the proper definition of “foreign security services”, intelligence personnel attached to the military, the Interpol liaison officer, the CIA person, who may come in as a state department, and intelligence personnel of state departments. All would fall under the category of “diplomatic” services. He questioned whether this clause was likely to affect South Africa’s international obligations in relation to diplomatic treatment, and said that exclusions should be stated for anyone who was part of the diplomatic  mission.

Mr  Maynier thought there might be some merit to this. The question was whether the Committee wanted to ensure that foreign intelligence service agents were registered.

Mr Stubbe confirmed that in every overseas office or Mission there were declared “spies” or “intelligence people” who must register. Those who were working in that country without knowledge of the Mission were “spies” working under a covert structure.

The Chairperson summarised that this clause seemed to be in line with international practice. Those who were registered normally operated under diplomatic immunity. It was not possible to punish those who were not registered, and the offence was not too serious.

Mr Swart fully appreciated that there was a need for this clause, but wondered if it was correctly placed here, or should be in other legislation.

Mr Maynier could understand why foreign intelligence service agents should register, but asked if every military attaché should also register.

Ms van Wyk confirmed that everyone, including military attachés, would hand over papers as an indication of the acceptance of credentials.

Mr Dlomo clarified how this worked in practice. When he had been the Executive Secretary of an international intelligence structure, he had had to be accredited as an employee of the African Union, who applied to the government of Ethiopia to accredit him as a diplomat, despite his Executive Secretarial appointment. A person would not, in practice, be able to present papers if not already accepted. The countries seconding personnel would have a signed agreement to formally register and interact. It was understood that people would be doing some work outside their office, but if they crossed the line they would be declared persona non grata. If there was a souring of relations between nations, they might withdraw immunity, especially to those not based actually at the embassy. At the end of the Cold War a number of countries had exchanged their operatives, to ensure there could be peaceable co-existence. Registration was a usual occurrence.

Mr Maynier asked if defence attachés were all registered as “spies” with the Agency, because he thought that this Bill might oblige them to register, because of the reference to “security services”.

Mr Dlomo confirmed that they were not registered. For the most part, the domestic intelligence service was referred  to as the “security intelligence” organisation – for instance the Canadian Security Intelligence Services. This distinguished it from services that undertook infiltration and positive searches for information. The security aspect focused on the protective element. Domestic intelligence services should not proactively intrude into the lives of citizens. That was why there were oversight systems, to ensure that permission had to be sought to intercept communications, or that non-intrusive methods were used. In the international intelligence arena, a country would want to use whatever methods were available to make the information gathering effective.

The Chairperson noted that the reference to minimum sentences must be removed from this clause.

Clause 37
All Members agreed to this clause.

Clause 38
Mr Landers pointed out that the version of this clause agreed to earlier should be incorporated.

Ms Smuts noted that she wished to argue for inclusion of a public interest defence, at a later stage.

Clause 39
Ms Smuts said that the DA was not in favour of this clause.
The Chairperson pointed out that a person coming into possession of sensitive information should take it to the police, and questioned where else, if not at a police station, Members thought it should be handed in. He thought it would be most unfortunate if a person were to have possession of sensitive information, which would put that person in a position to distribute it to others.

Ms Smuts said that this objection related to “possession” rather than to “obtaining” of information.

The Chairperson asked that Members must consider this clause, and be prepared to present succinct and substantive comments on the following day, if they could not agree to a compromise. He would not like to allow a broad discussion.

The meeting was adjourned, until 09:30 on the following day, and it was noted that there would be another meeting on Monday 1 August.

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