The State Law Advisors tabled a new Working Draft of the Bill, and another document containing the clauses redrafted after the previous meeting, and outlined the changes to clauses 23(5), the Classification and Review Panel, 35(3) and (4), the combination of clauses 17 and 21. The Chairperson asked that the title “Protection of State Information Bill” be used on all future versions. A proposed amalgamation of the hostile activities and espionage offences, and of clauses 17 and 21, was included. Members discussed, but did not change, the wording of clause 23(3) on urgent applications. For clause 31, Members asked that the option of a fine be included wherever a five year sentence was mentioned, agreed that the minimum sentence would not apply to clause 31(3), and proposed that the wording of clause 1(6) be moved to this clause. A reference to “intention” was to be inserted into clause 32, and Members would draft suggestions on inclusion of another subclause dealing with benefit to a non-State actor. In the combined clauses 17 and 21, Members were concerned about apparent inconsistency created by the use of both “conditions” and “guidelines”, and preferred to make reference only to “the decision to classify must be based solely on the conditions and criteria set out in this Act”, which were set out in clause 15. They would give further consideration to the need for subparagraph (i), whilst they agreed that (g) could be deleted, and that (e) should refer to “the relevant Minister”. In respect of clause 44, Members agreed that the revised wording of “ordinarily resident” was preferable, and the scope of this clause was clarified. The State Law Advisors would look further at the wording of clause 35, and it would be reconsidered after the Portfolio Committee on Justice had dealt with cyber crime contraventions.
Members then discussed various issues around sentences. In relation to clause 42, Members had felt that an improper classification as Top Secret would be regarded more seriously than an improper classification as Confidential, and wanted the wording of the clause to reflect this. It was agreed that although the categories could be separated, only one sentence would be set out. Options of a fine should be inserted into clauses 37 to 40 and for clause 32(3). The Bill was currently silent as to what obligation rested on an organ of state that discovered a document that revealed an unlawful act and therefore could not be classified, and this needed to be considered. An inconsistency between the penalties set out in clause 41 and the correlating clause in the National Archives and Records Services Act was noted, and it was agreed that the latter would probably have to be amended.
Members then continued to discuss the remainder of the clauses in the original Bill. The DA suggested that clause 46 be replaced with new wording, which was tabled, which made it clear that everything would be assumed to be open, unless a Court, in the interests of justice, ruled that a matter be closed to the public. This could be done either on the Court’s own initiative or following an application by an organ of state. Members discussed whether clause 46(2) was a duplication of what was set out in the Criminal Procedure Act, but decided that the scope was different, and took note of the principle that legislation should not attempt to prescribe Court procedure in too much detail. For clause 47, the Chairperson drew a distinction between the National Intelligence Agency (NIA) and the proposed State Security Agency (SSA), which would comprise a number of structures, but noted that at present no Bill to establish the SSA had been tabled. It would therefore be correct to redefine “the Agency”, possibly using wording from the Intelligence Oversight Act. Members also agreed to amend the wording relating to the tabling of the report of the Agency in Parliament. They agreed that the crime and security intelligence services should not be exempt from monitoring or from submitting reports, that the Inspector General would no doubt play this role, and clause 47 should state this more clearly. It was noted that Parliamentary portfolio committees, and possibly also the Classification and Review Panel, would have oversight over policy and compliance issues.
In respect of clause 48, Members noted the anomaly that although “regulations” were referred to here, they were also specified under clause 7, whilst “policies” were referred to in clause 8. It was suggested that clause 48 should remain broadly framed to refer to regulations; whilst clause 7 should refer to non-binding “guidelines” (although the DA suggested it may not be needed at all). The DA was also concerned that subclauses (a) and (c) might suggest that the Minister could make regulations for all government departments, in respect of valuable information, and raised concerns about the scope of subclause (e).
The afternoon session began with clause 48 of Working Document 8 of the Protection of Information Bill. The DA raised concern about the distinction between classified and valuable information as it pertained to the regulations in clause 48. The ANC agreed that this was a complicating matter and asked the State Law Advisor to work on clarifying it.
The ANC proposed to remove clause 48(1)(f) regarding commercial information and this was agreed to. On the issue of implementation of regulations and ministerial empowerment, the IFP suggested changing clause 7 to be more in line with clause 48. The Committee debated the nature of regulations and ministerial authority, and the IFP suggested providing for consultation with the Department of Arts and Culture. The ANC argued that the proper departments would be consulted, and proposed including new stipulations for the regulatory process. The ANC also said offences needed to be included to prevent regulatory non-compliance. After discussion with the opposition parties, the Committee reached agreement on the issue.
On the transitional provisions in clause 49, in response to concerns raised by the DA, the ANC proposed to change the time frame for implementation, which was agreed to in principle. The IFP drew attention to the Minimum Information Security Standards (MISS) guidelines, and debate ensued on its legal status in the context of transition. The ANC and IFP supported eliminating clause 49(2) and changing the time frame, which the Committee agreed to. The IFP further suggested collapsing the sub-clauses of 49(1) into a single provision. This recommendation was put forward to the State Law Advisor for consideration.
On Clause 50, the Committee did not express significant objections to the repeal of laws provisions. The Chairperson then proceeded to have the Parliamentary Legal Advisor present the Content of Original Bill document. The presentation identified where various definitions appeared in the text, either explicitly or implicitly.
After the presentation, the Chairperson instructed the Committee to consider clause 1, which contains the definitions of key terms. All the parties were unsatisfied with the definition of “archives,” as well as “National Archives.” It was agreed by the Committee to flag it and return later. The DA raised issue with the wording of the “categories of information” definition, as did the IFP.
On “classification of information,” it was proposed by the DA to switch parts (a) and (b) of the definition. The ACDP proposed additional changes to the wording in order to make it less confusing. Upon agreement, the Chairperson told the State Law Advisor to make the necessary changes.
The ANC proposed changes to the definition of “classified information” to better capture the Committee’s understanding of the term. The Committee approved the new definition before adjourning for dinner.
Continuing through the definitions after reconvening, the ANC and DA both raised issues about the “downgrading of information” definition. In particular, the DA noted the lack of a definition for “reclassification of information,” and the ANC proposed a revised wording. The Committee agreed to look at the reclassification issue later and accepted the new definition from the ANC.
The IFP suggested adding a definition for “demonstrable harm,” which sparked discussion about whose duty it was to define this. The ANC said the courts determined what constitutes “demonstrable harm,” and adding a definition would create a test that was not intended by the bill.
On “foreign state,” the ACDP noted that the bill needed to use this term consistently, pointing to the usage of “another state.” The Committee agreed to make the necessary changes for this. The ANC suggested “identifiable damage” should be deleted from clause 1, which was agreed to, as was “information principles.” The DA and IFP expressed discontent with the definition for “information,” and the State Law Advisor was asked to review it. The ANC proposed changes to “information security” as well.
The DA suggested that the definition for “intelligence” be revised and the Committee agreed. On the definition of “Minister,” the ANC proposed changing it to be model after provisions in the Constitution. The term “agency” in the “national intelligence structures” definition was subject to scrutiny and the Committee agreed to review the issue later. The ACDP proposed inserting a definition for “non-state actor,” which drew approval.
The Committee noted that “organ of state” would be altered because of previous concessions in regard to the bill’s breadth, although the IFP felt that the definition did not have to change, just its application. The IFP also proposed a rewording of the “original classification authority” definition, which the Committee approved.
The term “general welfare” in the definition of “personal information” was objected to by both the DA and IFP, and the ANC agreed to take it out. After some debate, it was agreed to keep the definition of “physical security” as written. The Committee reached “prescribed” before agreeing to adjourn until the next day.
Protection of Information Bill: Revised clauses and new Working Draft
The Chairperson noted that the State Law Advisors had tabled two new documents relating to the Protection of Information Bill (the Bill). The one entitled “Working Document 8” would be renumbered correctly as “Working Document 9”. The Committee would still be providing some advice on clause 44.
Ms Carin Booyse, Deputy Chief State Law Advisor, Office of the Chief State Law Advisor, noted that the new wording contained in the thinner document, headed “Clause 23 (agreed)” was repeated in the larger Working Document.
She then took the Committee through the changes, noting those to clause 23(5), and also those changes back to a prior version of subclause (5), page 47, relating to the experience of the panel members, under the heading “Constitution and appointment of Classification Review Panel. The changes in respect of the minimum sentences were reflected from page 57 onwards. It was still necessary to deliberate where to put the offence now set out in bold. In regard to the proposal to combine the espionage and hostile offences, there was now a definition on pages 57 to 58 of the Working Document. It was considered appropriate to put the benefit and harm concepts under two separate sub-paragraphs, as (i) and (ii). She noted that the minimum offences were still however reflected in relation to communication, delivery or making available state information that was classified Top Secret and Secret. She also noted the deletion of the “hostile activity” offence, as listed on pages 50 to 60 of the Working Document.
Ms Booyse said that the State Law Advisors had been asked to look at offences created under the Protection of Constitutional Democracy against Terrorist and Related Activities Act (the Terrorism Act), in relation to harbouring or concealing, to compare the wording between that Act and this Bill. The wording in that Act was set out and “the specified offence” was defined in the Act. In relation to clause 35(3), she pointed out that the wording “specifically designed” was now included, and in clause 35(4), the words “intentionally or knowingly” had been included. She also reminded Members that the point had been raised that a person may gain access to a computer that was not in the Republic, and noted that the State Law Advisors had proposed changes to the wording, which also included references to extradition.
In relation to clause 41, the State Law Advisors had been asked to check the wording of the National Archives and Records Services of South Africa Act (the Archives Act), in relation to wilful destruction or damage of records or property. She set out the wording in that Act for comparison with what was in the Bill. The Archives Act, although creating a similar offence, specified a sanction of a period of imprisonment of two years, as opposed to the Bill, which specified three years. The Committee would need to correlate these provisions.
Ms Booyse reminded the Committee that in relation to clause 42, there had been a discussion whether the categories of Top Secret, Secret and Confidential should be separated out, for the purposes of creating the offences. She indicated that a proposal in this regard was now set out in the document entitled “Clause 23 –agreed”.
Mr Sisa Makabeni, State Law Advisor, Office of the Chief State Law Advisor, reported back on the Committee’s request that the State Law Advisors look into whether the words “domiciled” or “resident” should be used in clause 44. They suggested that “ordinarily resident” be used, as this was used in the Terrorism Act, Sexual Offences Act, and other legislation, as well as in clause 39. He indicated that the wording of the Terrorism Act was set out in Annexure A, after page 19.
Ms Booyse continued that the “Clause 23 – agreed” document contained, at the bottom of page 14, the proposed amalgamation of clauses 17 and 21. Comments had been made also on page 15 in relation to the content of the specific sub-clauses, but this, together with the sub-headings, was merely an indication of what they might contain. The business process for classification was set out on page 19, which indicated where each of the stages occurred. This had also been done for declassification. However, she pointed out that the Bill did not contain a separate clause dealing with re-classification, although there was reference made to it in clause 17. It might be necessary for the Committee to look at that.
The Chairperson noted that some time ago, Members had agreed that the Bill was to be renamed “The Protection of State Information Bill” and asked that this should be reflected in all future Working Drafts.
Mr S Swart (ACDP) said that he had a number of comments. Firstly, on page 2, in relation to clause 23(3), he pointed out that the reduction of the time periods in the case where urgent applications were made referred only to “imminent public danger” situations, and he wondered if it was correct only to refer to these, under (a), or whether the substantial contraventions of the law should not also be considered. He pointed out that in both cases an applicant would have to make out a case for condonation.
Secondly, in regard to minimum sentences, Mr Swart questioned what was discussed in relation to clauses 31(1), (2) and (3). Members had agreed to retain the minimum sentences for espionage, in which cases the words “subject to section 1(6) would also need to remain. However, there had been discussion that the minimum sentences were not to be applied in relation to espionage relating to Confidential material, as set out in subclause (3) and possibly also to Secret material, as set out in subclause (2), in which case the wording would need to be amended. Members had also discussed the insertion of “intentionally”, either in the main body of the clause, or under the subparagraphs. Finally, he wanted to raise points in relation to the combining into one clause of the former clauses 17 and 21, because the wording now included reference to both “conditions” and “guidelines”, which were not the same. Later on, the phrase “these decisions must be guided by” appeared, and this seemed to be speaking of a decision that was not binding.
Mr D Maynier (DA) also raised a point on the amalgamation of the hostile activity and espionage offences, saying that he was not sure that this was quite correctly captured. He recalled that there were discussions as to who would benefit from the unlawful communication of classified information. It had been agreed that it would be an offence if another state benefited, but there was an additional concern around a non-State actor involved in hostile activity benefiting from such activities, which was not currently stated. He proposed, therefore that clause 32 be amended, so that subclause (a) would read “…to unlawfully communicate, deliver or make available information that would directly benefit: (i) another State or (b) a non-State actor engaged in hostile activity”. It would then be necessary to define “hostile activity” in section 1, based upon the definition used in the Promotion of Access to Information Act (PAIA).
Mr L Landers (ANC) wanted to take Mr Swart’s proposal on the minimum sentences for espionage, and the inclusion of a reference to section 1(6) a little further. Clause 1(6) related to this offence, so it would make more sense to move the wording contained in this clause directly to the clause dealing with espionage.
The Chairperson said that all these proposals had been well-made. He asked the State Law Advisors to insert the reference to “intention” into clause 32, and to insert the wording from clause 1(6) at the end of the clause dealing with espionage, so that the court would have the authority to impose the minimum sentence if the circumstances set out were present. He also agreed that Mr Maynier’s point about the reference to a non-State actor should be added in as a new subparagraph.
Ms M Smuts (DA) questioned this, commenting that the thinking was perhaps that the two should not be separated out. The word “hostile was defined in PAIA, and this still was dealing with the same definitions already dealt with under PAIA. The concept of “subversion” appeared to belong under espionage.
The Chairperson said that this was not quite how he had understood the matter.
Mr Maynier offered to draft something for consideration by the Committee. The Bill must be very specific on this point, given the severity of the offence. The DA was concerned that benefiting either another State, or a non-State actor, must be correctly captured.
The Chairperson agreed with this suggestion and said that clause 32 would be flagged for further discussion.
Mr Swart then expanded upon his earlier point about the condonation under clause 23. The most recent amendments agreed to by the Committee meant that the Bill referred to two time periods, of 14 days for urgent matters, and 30 days for consideration of other matters. He pointed out that a court could always grant condonation, on good cause shown, and questioned whether there was a good reason to treat the matters differently.
Mr Landers said that this seemed to make sense, and that the Court could also condone non-observance of the 30-day period.
The Chairperson reminded Members of their original thinking that something might happen that would make even the 14-day period for an official response too long – for instance, where information came to light about a pending nuclear meltdown. The Members had asked for comment whether the Court could overlook the 14-day period set out in the Bill. If the same reasoning was applied also to the circumstances set out in subparagraph (b), then this could be regarded as duplicating the procedures already set out in High Court Rule 6(12). All urgent applications, no matter what time periods were set out in any other legislation, were brought in terms of Rule 6. If this was to be included in respect of (b), it could be interpreted that the legislature was not familiar with Court procedures, and for this reason, he suggested that the wording remain as originally discussed.
Combined clauses 17 and 21
Ms Smuts, in relation to the query raised by Mr Swart about the apparent inconsistency about the use of both “conditions” and “guidelines” in the suggested combination of clauses 17 and 21, said that the incorporation of different subclauses had no doubt given rise to the confusion, but the word “guideline” was wrong. Essentially, the Committee wanted to say that “classification and decisions must comply with” - and then the relevant subclauses must follow.
The Chairperson pointed out that the Committee had not instructed the State Law Advisors to change the wording, but simply to list the information extracted from both clauses into some kind of logical order. It was also suggested that perhaps this information should be put under headings. The Committee must still work on this clause, which was possibly the most important part of the Bill. It could certainly be re-arranged and re-worded.
Ms Smuts added that this clause revolved around two concepts, and she wondered if it was important to include both. The first concept was that the “decision to classify must be based solely on ..” and here, the word “conditions” was used. The second concept that was “classification decisions must comply with..” (and here the references to “guidelines” must be changed.
Mr Landers said that he preferred the phrase “based solely on”. The word “comply” implied compliance with something – and he was not sure that this was clearly enough set out.
Ms Smuts stressed that the word “guidelines” should be changed to “conditions and criteria set out in this Act”. The criteria were set out in clause 15.
Ms Smuts also wanted to raise a question about which she was presently undecided. A balancing or weighing exercise was being set out in subparagraph (i), and she had previously questioned this on the basis that listing additional factors in the subparagraphs might dilute the effect of the earlier clause 15. However, she was now reconsidering whether this subparagraph was useful or necessary. If the criteria were already set out in clause 15, then the question must be asked as to what the person doing the classification would only be looking at these criteria, or whether that person would also be performing a quasi-judicial function of weighing up. If so, then perhaps reference should be made to weighing the Constitutional imperatives against the need for secrecy. She was still inclined to the view that this subparagraph might dilute the effect of clause 15, but would like to hear other views.
The Chairperson said that he thought the matter was quite simple. If it was accepted that classification must take place in terms of clause 15 of the Bill, then this classification was a limitation already on the right to access to information set out in the Constitution, and subparagraph (i) merely stated the obvious. A statement that the classification decision must balance the need for secrecy with the right to openness was in effect a restatement of the test set out in the Constitution. If subparagraph (i) were to remain, it could be read only as a reminder of this principle. He did not think it would have any specific legal status, and would not change the Constitutional scrutiny. He did not have any strong feelings whether it should remain but thought that it would not take anything away if it were to be excluded.
Ms Smuts thanked the Chairperson for this. She still wondered about the balancing, and asked that the clause be flagged for further consideration. Mr Swart agreed and suggested that for the moment it be retained, but discussed further.
Mr Swart commented on the technical details, saying that if subparagraph (ii) was taken out, then the subclauses should start with capital letters. He agreed with Ms Smuts’ earlier point about the contradiction between “solely upon the conditions” and “criteria set out in this Act”. He suggested that perhaps, in the subparagraphs, (g) could exclude the wording “applicable policies” so that it fell into line with (a), although it still seemed to duplicate what was under (a). He believed that the clause should set out clearly that if information did not meet the criteria in the Act, then it could not be classified. Finally, he said that he was happy with the references, in this combined clause, to the Act and regulations, but was not happy with the inclusion of “applicable policies”.
Mr Landers suggested that the whole of (g) could be deleted.
The Chairperson said that he was not sure how policies were dealt with. He asked the State Law Advisors to give some advice on this. He noted the agreement of all Members to delete (g), and their request to further debate (i).
Ms Smuts questioned the wording of subparagraph (e), noting that it referred merely to the advice being sought from “the Minister”. She thought that “relevant Minister” was the correct term, as doubts about a defence matter would be referred to he Minister of Defence, not the Minister of State Security.
Members agreed, and the State Law Advisors were asked to effect this change.
The Chairperson then asked Members to refer to Annexure A and clause 44. He noted that Members seemed to agree to the reformulation, referring to “ordinarily resident”, which covered a wider range.
Mr Landers queried what the case would be if a person who was a citizen of Peru entered South Africa, and committed the crimes, since the clause seemed to suggest that this person, who was neither a citizen nor ordinarily resident, could be charged.
Ms Booyse confirmed that if the act was committed inside the country, it would still constitute an offence for the purposes of the Act. Clause 44 sought to deal with offences committed outside the country.
Mr Swart said that offences committed outside the country would normally be done by an agent “ordinarily resident” in South Africa, and that “ordinary residence” would confer jurisdiction on South African courts.
The Chairperson noted that a person who committed an offence inside the country who was not ordinarily resident could argue that he could not be charged, unless extradited.
Mr Landers noted that a person not ordinarily resident could still be charged with committing an offence, but not under this clause.
The Chairperson clarified that those committing espionage could be foreign agents. If they were caught while still in South Africa, they would be charged on the basis that the offence was committed in South Africa, so clause 44 would not apply. There was no necessity to obtain any permission from that person’s own country to charge the agent. However, there were practical problems if the wrongdoer committed the offence, then left South Africa before the offence was detected. It would then be necessary to get that person extradited to face trial in South Africa, and application would be made under extradition treaties. If there was no extradition treaty between South Africa and the country to which the wrongdoer had fled, then that person would remain free until arrested in a country where an extradition treaty might apply. There were currently many citizens and transactions overseas, so it was possible that the espionage activity might not take place in South Africa. A South African citizen or resident committing an offence outside the country could be charged under clause 44, and this clause attempted to close the loophole that previously it would not have been possible to do so. It was not possible to say whether, for instance, an American citizen committing an offence under the USA laws would also be prosecuted under the South African law, where the two offences were connected.
The Chairperson asked the State Law Advisors to clarify whether they had quoted the section from the Terrorism Act merely to indicate how the process would work.
Ms Booyse confirmed that this was the reason, and it was not proposed that the full wording be included in the Bill.
Mr B Fihla (ANC) asked whether an offence in one country would always be an offence in another.
The Chairperson confirmed that in respect of some offences, such as murder, it was certain that a criminal conviction would follow, in any country. However, the person would be charged in terms of the law of the country where the offence was committed, not his or her own country. He reminded Members that there had been some discussion, in relation to the cricket match-fixing, whether it would have been possible to charge under both the Indian and South African law, and there was also a question, in such cases, of where the sentence might be served.
Ms Booyse said that there seemed to be a gap in relation to subclause (e)(ii) of this clause, as set out on page 64, and said that in order to cover the question as to what would happen if the act occurred outside the Republic, the proposal set out on page 11 would be included. The State Law Advisors would have another look at the provisions around computer access at an embassy overseas, and possibly include something similar also in this clause.
Ms Smuts asked whether Mr Landers could deal with questions of protocol and digitisation, and noted that the Portfolio Committee on Justice would be dealing with cyber crime contraventions, and she would not like to see this Committee also getting bogged down in this issue, but rather that a report back be given, when appropriate, by that Portfolio Committee.
The Chairperson summarised that Members seemed to be largely satisfied with the way in which clause 44 was worded. Clause 35 would be reconsidered after the Portfolio Committee on Justice had dealt with the matters. .
Mr Swart firstly wished to refer to the offences set out for improper classification, noting that this would be very serious when the improper classification was done in the Top Secret category. He questioned, whether, from a stylistic point of view, it was necessary to split up the offence into three subclauses, if the maximum sentence in respect of all three was to remain at three years.
He also raised that he had mentioned previously the need to include the option of a fine in relation to offences set out in clauses 37 to 40. The option of a fine should perhaps also be included in relation to the offences in clause 32(3) at least.
The Chairperson noted that the re-arrangement of clause 42, relating to improper classification of information had come about when Mr D Stubbe (DA) had suggested that a person should be penalised more severely if s/he inserted a Top Secret classification than a Confidential classification. Although not quite correctly reflected here, the offence had originally specified a sentence of three years imprisonment, but if Mr Stubbe’s reasoning were to be followed then the sentences would need to differ.
Mr Landers took note of that viewpoint, but said that he believed that a person who deliberately classified information with a view to concealing breaches of the law should receive a sentence in line with the Prevention of Organised Crime Act (POCA), which was probably in the region of 15 years imprisonment. A person improperly making a Secret classification should certainly be sentenced to more than three years imprisonment. He thought that the three years imprisonment and option of a fine may be appropriate where a Confidential classification was improperly made.
The Chairperson noted that all Members agreed that the offence set out in clause 42 was less serious than espionage.
Mr Landers made the point that because the minimum sentence would not apply in clause 42, the Court would have a discretion whether to sentence a person to any period up to, say, 15 years. However, the Committee would like to send a message that making a classification of Top Secret to hide malfeasance was very serious, which was why the 15-year maximum term was suggested.
Mr Swart agreed, noting that the option of a fine would be included for an improper Confidential classification. The mere fact that this sentence was raised from three to fifteen years was a strong message.
Mr Landers added that Members had noted, when discussing this in the previous week, that any attempt to hide corruption or criminal activity though classification was tantamount to a corrupt act.
Mr Maynier raised a point not directly related to clause 42, but in relation to improper classification. He said that the Bill was silent on what obligation rested upon an organ of State who came across a document that clearly revealed an unlawful act, and thus could not be classified. He wondered whether the Bill should specify that this organ of state should hand the document to the Classification and review Panel (the Panel), or the police.
The Chairperson said that this was a valid point that would need to be considered later. On this clause directly, he noted that no penalty should be inserted that was otherwise inconsistent. He asked the State Law Advisors to look into the suggestions and give their view as to whether the sentences imposed would be appropriate and proportional with other clauses.
Cause 41 penalties
Ms Booyse referred to clause 41, in relation to destruction of valuable information. She reiterated that the wording used in the Archives Act was set out for the information of Members, and said that there was an inconsistency between the Bill and that Act.
Mr Landers noted that the penalties in the Archives Act were set in 1996.
Ms Smuts was of the view that it was appropriate to include this penalty only in the Archives Act.
The Chairperson said that the Committee would discuss this further at a later stage. The Committee must ensure that there was no contradiction with the Archives Act, and he thought that this Act could be amended to bring the two pieces of legislation in line. The offence in the Archives Act may not be quite the same as the one being dealt with in the Bill.
The Chairperson added that it was possible, in clause 42, merely to say that in respect of any of the penalties, which would be separated out, the maximum sentence should be however many years the Committee finally decided upon.
Continuation of discussions on original Bill
The Chairperson asked Members to turn their attention to clauses 46 onwards, in the original Bill.
Ms Smuts stressed that both the Canadian law, and indeed indications from the South African Constitutional Court, stated that the concept of open justice (comprising access to justice, a fair trial and free speech) could not be presumptively displaced. This clause, as presently worded, was contrary to that principle. She stressed that everything should be assumed to be open, unless the court, in the interest of justice, ruled that a matter be closed to the public. She tabled a proposed substitute for this clause, as proposed by Dario Milo during the public hearings, which essentially altered the order of the wording. This had been set out in the DA’s written proposals.
Mr Swart said that there was merit in this and that the ACDP supported it. This would also open the way for interested parties to bring an application to keep the matter closed, as well as allowing the Court to take that decision of its own accord.
Ms Smuts noted that comments in the Masetla Constitutional Court case had stated that the point of departure must be openness, and that this bound the legislature.
Mr Fihla asked whether she was suggesting that nothing could be held in camera.
Ms Smuts said that she was not, but the general principle was that all matters must be held in open court, unless the Court made a ruling to the contrary.
The Chairperson added that all information in a matter before a Court would have to be disclosed to the parties and the public, unless the Court found that this disclosure was not in the interests of justice.
Mr Landers pointed out that there would need to be an application first.
The Chairperson disagreed; the clause read that the information would have to be disclosed unless the Court, either on application, or mero motu (on its own decision) made another finding.
Mr Landers said that it would be the classification authority who would bring the application to withhold disclosure, as that person would otherwise be acting irresponsibly. He stressed that this new proposal made it clear that an onus lay on the classifier to take action.
Ms Smuts added that the Bill of course already placed an obligation on the classifying authority, wherever a document was called into question before a public tribunal, to consider whether that document should not be declassified.
Mr Swart made the point that in most cases the state department would be cited as a party. The Court had wide powers to order that any documents were kept safe and were properly protected, and also had authority to order either full or limited disclosure. However, the organ of State could not now simply sit back and assume that everything would be kept secret as it would need to persuade the Court, on a balance of probabilities, that it was necessary to do so.
The Chairperson noted the references to the Criminal Procedure Act (CPA), which dealt with proceedings in camera.
Mr Landers said that subclause (2) also spoke of holding proceedings in camera and queried if this was not a duplication.
The Chairperson said that section 154 of the CPA made reference also to section 153 of that Act, and there were many requirements set out in the CPA that were not captured in the Bill. This was why the words “in addition to the measures” were used.
Mr Swart indicated that this would give the Court broader powers to order an in camera hearing, which would probably be argued for by the State.
Mr Landers asked that the Committee be given some extra time to consider the details of the subclauses.
Ms Smuts said that the drafting of the DA’s proposal was good, and deleted subclause (9) of the original Bill, which had said that even unclassified information could be restricted from access before it was referred to Court.
The Chairperson noted that a Bill could not set out too much in relation to Court procedures, but the experience of the past had shown a lack of consistency in dealing with classified information that had formed the subject of Court proceedings. In one case, a former Minister asked for information already aired in a previous case to be restricted. It was necessary simply to ensure that different High Courts did not adopt different procedures. He noted that he was not sure of the IFP’s views on this clause, as the IFP Member was not present
The Chairperson pointed out that now that the application of the Bill had been reduced, very few reports would in fact be given. The “Agency” referred to the State Security Agency (SSA), as defined in the Bill, as opposed to the National Intelligence Agency (NIA).
Mr Landers said that the question had been debated in another forum whether a proclamation could supercede or amend the law, and it was clear that it could not, otherwise there would be no reason to have the legislature. Currently, the legal position was that the NIA was in existence. He queried whether it was competent for this position to be altered by proclamation. He thought that the Bill, given the existence of the NIA but not of the SSA, should be changed, to refer to the NIA, and when the necessary legislation to create the SSA was tabled and signed into law, the position would then change.
the Chairperson clarified that the current wording of the Bill defined the SSA as comprising more than the NIA alone, as it would include a number of bodies. This new agency would have both internal and external functions, and would be supported by other units that dealt with communications and other matters, as well as there being an Academy. The Bill referred to that composite agency, although no new Bill to establish that agency had yet been tabled in Parliament.
Mr Landers agreed, but said that until such time as the NIA was formally disestablished, it would remain the relevant agency. There would have to be clearer definitions.
The Chairperson said that the Intelligence Oversight Act contained definitions referring to the combination of the entities, and in the interim, it may be more useful to use that wording rather than the definition currently contained in the Bill, which was based on the proclamation. He asked the State Law Advisors to look into this point, stressing that it would be necessary to exclude crime and defence intelligence.
Mr Maynier raised another point on this clause. He said that the annual report of each organ of state, as referred to the Minister and Agency, may also need to be referred to the Panel. In clause 47(4), the phrase “the Agency submits its report to Parliament” should be substituted with “the Agency tables its report in Parliament”.
Members agreed to both proposals, and asked the State Law Advisors to effect those changes.
Ms Smuts commented also on the wording of clause 47(1), saying that there was no definition of “protection of information policies and procedures”. Furthermore, she noted that these were to be consistent with “national information security standards” and she did not know what those referred to either.
Mr Landers said that the Departmental policies were set out in clause 8.
Ms Booyse added that “national security standards” were referred to in clause 7(2).
Mr Maynier raised another issue. In clause 30, dealing with the responsibilities of the Agency, it was said that the South African National Defence Force (SANDF) and South African Police Service (SAPS) were effectively exempt from monitoring, and no report would therefore be received from them in terms of clause 47. He thought that Members must discuss whether they wanted defence and crime intelligence to be exempt from monitoring. If not, then they must submit annual reports, and it was then necessary to specify who would monitor.
Mr Landers pointed out that the scope of application of the Bill would be narrowed. He had thought that this clause applied to all three entities – the Agency, crime intelligence and defence intelligence. He asked if the latter should submit reports to the Minister of State Security and the Agency.
Ms Smuts said that the clauses excluding the crime and defence intelligence services spoke to valuable information, and were apparently written into the Bill at their request, because they were unwilling to allow the NIA to inspect or audit their keeping of documents.
Mr Landers said that when these services had classified documents, they would have to submit reports every year. Although he took Ms Smuts’ point about valuable information, this appeared to refer to classified information.
The Chairperson said that his understanding of the Chapter was that an entity that understood the issues should monitor proper implementation, and the SSA was given that task, but now that most organs of state would no longer be classifying documents, it would not be necessary to have Agency monitoring at that level.
Mr Maynier wanted assurance that crime and intelligence services would not be exempt from monitoring, although Mr Landers did clarify that it was not intended to exempt them from reporting to the Agency. He wondered if they would be reluctant to submit reports.
The Chairperson said that as originally worded, clause 30 would have placed an immense responsibility on the Agency to monitor other organs of State, in respect of valuable and sensitive information. It was necessary to have some body that understood the issues in respect of security matters. The Agency would still retain monitoring duties over institutions that opted in, as well as in respect of defunct institutions, to check compliance with the Act. That would include crime and security intelligence services.
Mr Landers said that clause 47 should set this out clearly.
Mr Maynier said that clause 30(1) placed an obligation on the Agency to monitor, for example, national information policies and programmes and to conduct on-site inspections. He asked if this would be done for all organs of state, including SANDF and SAPS.
Mr Landers felt that this aspect should not be monitored by the Agency, and suggested that the Inspector-General could carry out some functions. It was necessary to distinguish between classified and valuable information.
The Chairperson added that Parliamentary portfolio committees, and possibly also the Panel, would have oversight over smaller policy and compliance issues.
Mr Maynier agreed. It would not be desirable to exempt these structures from any review. The submission to the public hearings by the Institute of Security Studied indicated that the NIA itself had failed to comply with security and information standards. The intelligence services must be reviewed independently.
Mr Landers noted that the Joint Standing Committee on Intelligence (JSCI) played that role, and could probably instruct the Inspector General to monitor the classification of information by all three institutions. The Committee would need to look carefully at the definitions, particularly to distinguish between “protected”, “sensitive”, “state” and “valuable” information.
The Chairperson reminded Members that the Parliamentary Law Advisors would take the Committee through some of the definitions later. He added that the Inspector General had specific powers, and certification processes needed to be done annually. The Inspector General would have to look at annual reports and to report to the JSCI. He asked the State Law Advisors to include a reference to the Inspector General in this Bill, since the Intelligence Oversight Act did not refer to the Bill.
Mr Maynier suggested that perhaps another combination could be both the Inspector General and Auditor General, because the former office seemed to lack capacity.
Dr M Oriani-Ambrosini (IFP) wanted to raise a point that had been briefly mentioned before. The interpretation and implementation of clauses 15 and 17 was assigned to the head of the organ of state. However, the regulations under clause 7 would have the effect of interpreting clauses 15 and 17 and prescribing categories of classification. Another difficulty was that there was also a reference to “standards”, whilst “policies” were referred to in clause 8. He suggested that it would be sufficient merely to have clauses 15 and 17 as determinants of whether a document should be classified, to avoid proliferation of norms, standards and regulations that might engender confusion at all levels.
Dr Oriani-Ambrosini said that although he personally was not in favour of providing for regulations, it was unlikely that other Members would agree. He therefore suggested that the power to make regulations should be broadly phrased in clause 48. Then clause 7 should refer not to regulations, but to “guidelines” that could assist departments to apply the Bill, so that there was no confusion about different sets of regulations on the same hierarchical level. The clause 7 guidelines would comprise a manual.
Ms Smuts agreed with Dr Oriani-Ambrosini’s concerns and said that Members needed to consider whether clause 7 was needed at all. She suggested that clause 48 needed to be re-written.
The Chairperson thought that clause 48 could stay in its current form, if clause 7 was downgraded to non-binding guidelines. The responsibility for applying the legislation correctly would lie with the head of the organ of state. He asked for comment on the wording of clause 48.
Ms Smuts noted that subclauses (a), (b) and (c) dealt with “valuable and classified information”. This seemed to suggest that the Minister could make regulations on controls and measures to protect this information, including physical security, information and communication technology, but if the Minister were to make regulations for all government departments, this would perpetuate the Minimum Information Security Standards (MISS).
The Chairperson said that the regulations would presumably state how information must be stored or protected, and how employees should act. He noted, in regard to the “security committees” mentioned in subclause (d), that within each entity there would be a branch that would deal with the security of equipment and other matters.
Ms Smuts reminded Members of her concerns that the Department of Basic Education had apparently required all its employees to sign secrecy agreements because MISS was vetting everything. She asked if subclause (e) implied that all personnel would be vetted.
The Chairperson said that even in respect of valuable information, someone would have to take responsibility for how the information would be protected from loss and destruction.
Ms Smuts said this was not quite the same point. It was unconstitutional to swear public servants to secrecy.
The Chairperson opened the afternoon meeting on clause 48(1)(e) and asked the Committee if it should be removed.
Mr L Landers (ANC) noted that the bill deals with two separate types of information, classified and valuable. He said that 48(1)(e) as presently drafted did not make that distinction. He said that insofar as a normal department of state deals with the issue of security clearance, there is a vetting process.
Ms M Smuts (DA) stated there should be no regulations or restrictions pertaining to the subject of 48(1)(e).
Mr Landers responded by saying that the Director-General’s office is supposed to regulate this matter.
Mr N Fihla (ANC) articulated that there are certain places that need restrictions where certain people cannot be allowed access.
Ms Smuts said that all information in the hands of the state should be open to citizens except such information regarding national security issues. She stated that a balance needed to be struck and suggested that an easier way to deal with regulations would be to handle classified information differently from valuable. She expressed that she would like valuable information out of the bill altogether, but if it is covered, there should be a separate clause for regulations of such information.
The Chairperson said he expected some form of regulation that specifies certain things are locked, and recommended capturing that by adjusting or adding a clause. He stated that this information needed to be protected from loss, destruction, and alteration. He iterated the need for a small empowerment provision to allow for that.
Ms Smuts agreed that separate clauses would remove the confusion.
The Chairperson stated that the object of the bill was to create and empower regulations to protect information and asked the State Law Advisor to come up with something to resolve the confusion. He recommended it be a simple clause that allows for regulations on security clearance.
On the subject of 48(1)(f), Mr Landers noted that commercial information had been done away with, making 48(1)(f) unnecessary.
The Chairperson agreed to remove it. He then moved to 48(1)(g) and 48(1)(h).
Mr Landers said both 48(1)(g) and 48(1)(h) were very important and needed to remain in the bill.
The Chairperson agreed and moved to 48(1)(i) and discussed the encryption of information.
Mr Landers asked if this dealt with valuable information.
Ms Smuts stated that this was only dealing with classified information and suggested adding the word classified to specify this in the clause.
On 48(1)(j), Ms Smuts said that it is wrong to have intelligence structures governing encryption.
The Chairperson noted that COMSEC already checks all organs of state to make sure they have properly encrypted their information. He said that if the clause is restricted to classified information, it should be safe.
Mr Landers agreed with the Chairperson, as he suggested specifying “protection of classified information.”
The Chairperson noted approval of 48(1)(k) and moved on to 48(1)(l).
Ms Smuts asked what security standards the clause was referring to.
Mr S Swart (ACDP) said that the Committee must first consider whether 48(1)(l) was necessary and then if it was consistent with what the bill previously stipulated.
Ms Smuts expressed agreement.
Mr Landers said that someone needed to explain 48(1)(l).
Dr M Oriani-Ambrosini (IFP) articulated his understanding of clause 48(1)(l). He said that clause 48 specifies the general regulations to be adopted, while clause 7 pertains to the regulations of a specific department. This meant that the minister will implement the act under the regulations of 48 but issue regulations that implement the act specifically in any given department. He found this to be problematic, and suggested changing clause 7 to make the head of the specific department in charge of implementation. He argued that this would be more effective because the head of department will be more knowledgeable of the specificities relating to implementation within his of her department.
Mr Swart said he did not follow the logic of Dr Oriani-Ambrosini’s statement. He argued that 7(1) empowered all organs of state to administer the regulations. He further noted that 7(3) clearly explained the minister’s role in implementation.
Mr Landers once again noted the discrepancy between classified and valuable information, and said that everywhere in the bill this is a problem that must be considered.
The Chairperson said this point had been made and will be revisited. He then asked whether the minister needed the power to make guidelines for classification levels.
Dr Oriani-Ambrosini responded to the Chairperson’s question by saying that it was not necessary to empower the minister in this way. He explained that this would complicate the regulatory process, and instead should be codified in statutory power after the bill becomes law.
Mr Landers argued that it was part of the minister’s inherent authority to administer guidelines, and did not need to be put into law. He said the normal procedure entailed subordinate legislation from Parliament. He asked if in this case, regulations were going to be drawn up and handed down to whomever without Parliament playing a role.
Mr Swart noted an inconsistency between the timeframe in 48(2) and clause 7, as it was 18 months and 12 months respectively. Thus, he argued that if regulations were passed after the elapsed time they would have no effect. He suggested that regulations be tabled in Parliament for consideration, and should either be approved in total or rejected.
Dr Oriani-Ambrosini said any regulation must be approved by the relevant committee in Parliament. He raised the point that some functions may go beyond the expertise of the minister, especially in regard to valuable information. Furthermore, he referred to the rapidly changing environment of how information is kept (paper, CD, etc.), and suggested the inclusion of the Minister of Arts and Culture and Minister of Science and Technology in this process. He did not see the value of making the Minister of Security or Minister of Intelligence in charge of technological choices in this matter.
The Chairperson said the issue could be flagged, but these responsibilities were already dealt with by COMSEC and the Minister of State Security. He did not see the necessity of a consultative process like Dr Oriani-Ambrosini had recommended.
Mr Landers said that it was the Departments of Justice and Defense that would be consulted. He said it had earlier been reasoned why the Department of Arts and Culture was not to be consulted.
The Chairperson offered a proposal regarding the regulatory process that read: “the minister must publish the draft regulation in the Gazette for public comment and submit the regulations to the Joint Standing Committee on Intelligence for scrutiny at least 30 days before the regulations are promulgated.” He then suggested changing “scrutiny” to “approval.”
Ms Smuts, in reference to Dr Oriani-Ambrosini’s earlier point, agreed that the Minister of Arts and Culture should be consulted.
The Chairperson agreed to add consultation with the Minister of Arts and Culture into the bill for consideration. He asked if it was necessary to create a penalty clause for failure to enforce regulations.
Ms Smuts disapproved and said she had never come across that before.
The Chairperson asked if an additional offence should be included for failure to comply with regulations.
Ms Smuts responded by saying regulations are subordinate to law.
On that point, Mr Landers reasoned that a failure to report security breaches would be quite serious. He said a blank check cannot be given, so if it was necessary to provide for offences then they must be included.
The Chairperson asked the State Law Advisor to capture in a simple way to an offence provision that is consistent with other offences.
Ms Smuts felt it was the Committee members, as lawmakers, responsibility to decide.
Dr Oriani-Ambrosini said there would be a host of minutiae that will be provided for in regulations, offering some examples. Some details can only be identified by regulations, he argued, and further added that the law will cover the important stuff. He stated that the regulations should have some sanctions of their own, and suggested a maximum sentence to be three years for a failure to comply.
The Chairperson asked Dr Oriani-Ambrosini if they were now in agreement about an offence provision and he said yes. As for the punishment, the Chairperson said it could be left to the discretion of the courts.
Mr Swart referred to regulatory offences provided for in the Prevention of Corrupt Activities Act, in order to provide precedent.
The Chairperson asked what the relevant fines should be, with consideration for inflation.
Ms C Booyse, State Law Advisor, said the adjustment of fines changes every year.
The Chairperson said that a violation regarding valuable information should differ from that of classified information. He asked the State Law Advisor to review this. He further stated that the 18 month timeframe will remain in clause 48(2), and that clause 7 should be changed to 18 months.
Mr Landers asked why this number was inserted in the first place.
Dr Oriani-Ambrosini said he understood this type of language was intended to compel the minister to comply. He said the critical issue was in 49(2), in which there could be a contradictory situation. He expressed concern about imposing a deadline on implementation. He also asked how, as legislators, they could be expected to endorse a document that they did not have access to.
The Chairperson suggested that it was available on the Internet for viewing.
Dr Oriani-Ambrosini suggested that, given the Chairperson’s point, it would follow naturally for him to be allowed to give his presentation on the public domain exception that he had requested.
The Chairperson reiterated that he would be given time in the next session but did not want to lose focus on the delicate issues in consideration. He asked the State Law Advisor to provide new templates for clause 48 in the next session.
The Chairperson moved to clause 49 covering transitional provisions. He noted the whole range of exceptions under 49(1).
Ms Smuts raised concern about this clause. She suggested the whole bill in its tabled form can only be understood once it was known how clause 49 works. She said these provisions were inserted in order to help the intelligence community understand the constitutional background of the bill. She asked why the law cannot simply kick in almost immediately, and if it was necessary to suspend the whole operation.
Mr Landers stated that not everything was going to be suspended, only what would become reprehensible under the new law. He said the clause allows the minister time to draw up regulations and promulgate them. However, he offered changing 49(1) from 18 months to 6 months from the date of promulgation.
The Chairperson asked for agreement.
Ms Smuts said it was a good working approach.
The Chairperson said to mark it. He then noted that 49(1)(a) through 49(1)(i) were all relevant.
Mr Landers said he felt 49(3) was fine as written by the State Law Advisor.
Ms Smuts said she thought it was fine as well, but raised concern about 49(2)(b) regarding clause 17.
Mr Swart asked how clauses 6 and 17 could be binding if they are not law yet. He said it seemed to be a persuasive power to those principles and limited the application of Minimum Information Security Standards (MISS).
Dr Oriani-Ambrosini stated that most of the dilemma here would go away if the application of MISS was clarified. He said it could apply notwithstanding the exception.
Mr Landers articulated that these guidelines must be done in conjunction with clauses 6 and 15. He felt that 6 was poorly drafted.
Ms Smuts corrected Mr Landers that it was 17, not 15. She agreed that the language was not well written, particularly referring to clause 6(g) as being chatty and like a discourse.
Mr Landers expressed agreement with Ms Smuts. He noted that MISS is a guidelines but not law.
Dr Oriani-Ambrosini remarked that the law would remain the Protection of Information Act of 1982 until it is repealed by clause 50, at which point the status quo would become the de facto law in the interim.
Ms Smuts said that MISS was never subordinate legislation
The Chairperson asked what would apply in the meantime and said Dr Oriani-Ambrosini was right in saying the status quo. However, he said that legislation does not get written articulating that the status quo should apply. He referred the question to the State Law Advisor.
Mr Landers asked what the effect would be if 49(2) was removed. He noted that classification had been practiced under MISS this whole time, which some have said is unconstitutional. He reiterated that the 1982 law will be repealed by virtue of this act.
Dr Oriani-Ambrosini said the situation was clear and said that clause 50 only comes into effect when the new act is in place. In between the status quo remains. He said this process is practiced all the time. He expressed agreement with Mr Landers that 49(2) should be eliminated to avoid complication, as well as changing the 18 month period.
The Chairperson asked the Committee if 49(2) should be eliminated and the members agreed.
Dr Oriani-Ambrosini suggested adding a clause 49(1)(j) to read as subclause 2.
Ms Booyse responded by stating that 49(3) already stipulates when this act will take effect.
Dr Oriani-Ambrosini compared the problem here with being in limbo, or in other words was the clause inside or outside. He said the whole clause should come into effect immediately, but as presently drafted clause 49 was not clearly written.
The Chairperson said this point was well made. He asked if Dr Oriani-Ambrosini meant to include clauses 49(1)(a) through 49(1)(i) in one clause, and he responded yes. He agreed that the individual clauses in this clause should be collapsed, and asked the State Law Advisors if it would fit in that clause.
Mr S Makabeni, State Law Advisor, explained that this proposed new clause would not fit because clause 24 has been put in advance of clause 49, and 24 would not come into operation when the act takes effect.
Ms Booyse asked if what was being suggested was to take out the dates on which the act will take effect, and said that she will look at it for redrafting.
The Chairperson approved of this and moved onto clause 50 regarding the repeal of laws.
Dr Oriani-Ambrosini noted a linguistic problem with 50, but said if the Committee was content with it he would not object.
Mr D Maynier (DA) remarked that other laws may be in conflict with 50, in particular clauses 104(7) and 104(9) of the Defense Act, 103 of the Intelligence Services Act, and 8(a) and 8(b) of the National Suppliers Act. He felt this conflict could create a parallel structure of sorts and asked the State Law Advisor to take a look.
Definitions: Content of Original Bill document presentation
The Chairperson proceeded to allow Mr N Vanara, Parliamentary Legal Advisor, to give a presentation on the Content of Original Bill document.
Mr Vanara explained the document, and stated that some of the terms defined in clause 1 of the bill do not actually appear in the bill’s text. As an example, he mentioned “national intelligence structures,” which appears in the context of the bill but not explicitly. He noted that some definitions were no longer relevant, for example “commercial information.” He spoke about the “identifiable damage” definition, particularly the words “demonstrable harm.” He pointed out that “legitimate interest” does not appear in the text, but “legitimate public interest” does. Mr Vanara then remarked about the “need to know” definition, which appears within the definition of “security clearance.”
Dr Oriani-Ambrosini asked to comment on the “need to know” definition, but the Chairperson instructed him to wait until Mr Vanara finished.
Mr Vanara further noted that “secret information” does not appear in the text of the bill.
Dr Oriani-Ambrosini stated that even though some definitions do not serve an apparent purpose within the bill itself, they may serve a purpose in terms of regulations.
The Chairperson thanked Mr Vanara for his presentation and noted that some of the members’ amusement during it was aimed at the drafters. He then said that definitions that had no bearing on the act should be eliminated, which Ms Smuts concurred with. He advised the Committee that their next action should be to scrutinize the relevant definitions, which would be taken up after adjourning for 15 minutes.
The Chairperson resumed the meeting and opened discussion on clause 1 regarding definitions and interpretation. He suggested looking at other intelligence legislation to see if there is an entity that captures the definition for “agency.” He said to see what arrangements could be made and move on to “archive.”
Mr Fihla said defining archive as meaning “any archive” was not a good explanation.
The Chairperson stated that the definition for archive was captured in other national and provincial archive legislation and asked the State Law Advisor for comment.
Ms Booyse proposed to rewrite the definition to make it clearer.
The Chairperson asked if that would capture the Committee’s concerns.
Dr Oriani-Ambrosini noted that National Archives was defined later, and suggested that all archives should be covered in one definition.
The Chairperson asked if Dr Oriani-Ambrosini was saying that the “National Archives” definition be deleted.
Dr Oriani-Ambrosini said that was not what he was suggesting, but rather that the “archive” definition be changed to read “National Archives and any other archive.”
Mr Maynier recommended flagging the “archive” definition, pending a better legal understanding of the term.
The Chairperson asked if Mr Maynier was suggesting to also flag “National Archives.”
Mr Swart said the definition of “archives” should encompass the National Archives, but stated there must be a reason why the drafters continue to insert a separate definition for the latter term.
Mr Maynier said Mr Swart’s point amplified his own, and suggested flagging both “archives” and “National Archives.”
The Chairperson proceeded to the next definition, “categories of information.”
Ms Smuts said it was wrong to include “integral file blocks” and “in bulk” in the definition. She also asked to remove “classified.”
The Chairperson noted that “integral file block” is later defined in clause 1.
Mr Landers had expected a very simple definition, which would be especially important if the bill were to be judged by the courts.
Dr Oriani-Ambrosini said that “grouping” could mean anything, and said that the definition should be broader.
The Chairperson drew the Committee’s attention to clause 9 to contextualise the debate.
Mr D Dlomo, Advisor, Ministry of State Security, asked to volunteer a point on this matter. He said the drafting had not helped to clarify and that the point of having categories of information is to maintain a filing system as in a computer. He further stated that the way in which the system is currently formulated had not worked. He recommended that this definition be considered very closely by the Committee.
The Chairperson acknowledged acceptance of this advice. He suggested Mr Dlomo work together with the State Law Advisor in order to get a practical and acceptable law. Given the debate over “categories of information,” the Chairperson remarked that “categorisation of information” was to suffer the same fate, which the Committee agreed to. He moved to “classification authority,” which no one raised objection to, and then to “classification of information.”
Mr Maynier said part (b) of the definition should be put on the chopping block.
Ms Smuts agreed on dropping (b).
Dr Oriani-Ambrosini suggested eliminating the places in the act where the definition did not fit. He then proposed to switch (a) and (b) of the definition.
Mr Dlomo iterated that there needed to be an understanding of access as in part (b).
The Chairperson stated that access is a regulatory matter.
Mr Swart added that reading “access” as in terms of the Promotion of Access to Information Act (PAIA) made the definition more confusing. Additionally, he stated that “certain” should become “such,” saying the wording as it was written was clumsy.
The Chairperson noted that (a) would become (b), and stated that it had to be determined what level of classification would be assigned to the information.
Mr Maynier made a proposal to remove part (b) altogether.
Dr Oriani-Ambrosini recommended reviewing what these definitions were supposed to do. He said the definitions were shortcuts, formulated in a cut and paste style. For “classification of information” and “classified information,” he said it was in reference to the process and outcome, respectively, of classifying by the minister and applied to the entire act. He noted various places in the bill where they appeared.
The Chairperson asked if it was necessary to have “classification of information” and “classified information” definitions.
Dr Oriani-Ambrosini said Mr Maynier’s proposal would not work.
The Chairperson asked if Mr Maynier would accept Dr Oriani-Ambrosini’s proposal, and he said he would.
The Chairperson said he would instruct the State Law Advisor to revise (a) and (b) of “classification of information.”
Mr Swart reiterated that (a) should say “certain,” and (b) must say “such.”
Mr Landers noted that the Committee was in agreement on what classified information was. For the definition, he said he was unsure if “heightened protection against unlawful disclosure” needed to be included. He also said it needed to refer to the 1982 act.
Mr Swart proposed a wording change in response to Mr Landers’ point.
Ms Booyse responded to the members’ concerns and proposed a new definition.
Dr Oriani-Ambrosini said the definition should be inclusive enough to cover anything, adding “under any applicable law.” He noted that MISS was not subordinate legislation, but rather guidelines for classification.
Mr Swart said that some information may have previously been classified as a matter of fact rather than by law, and he did not feel that including MISS elevated it to the status of law. He called the situation a double-edged sword.
The Chairperson remarked that the Committee must be careful not to exclude information.
Dr Oriani-Ambrosini agreed with the Chairperson but said a new definition must work for the entire act.
The Chairperson asked what the proposal was for the new “classified information” definition.
Mr Landers offered the following proposal: “state information that has been classified under this act, the 1982 Protection of Information Act, the former Minimum Information Security Standards guidelines, and any other law.”
The Chairperson noted approval and moved to adjourn for dinner.
The meeting reconvened at 18:50.
The Chairperson opened discussion on the definition of “confidential information” and noted where it appeared in the bill’s text.
Dr Oriani-Ambrosini suggested this definition was useless as far as this bill was concerned but would be applicable to regulations.
The Chairperson said the definition was fine and would be kept. He said the “constitution” definition was also fine and moved to “declassification authority.”
Dr Oriani-Ambrosini said it was clear that the Review Panel does not declassify per se.
The Chairperson said “declassification authority” was fine and said “declassification database” was as well.
Dr Oriani-Ambrosini noted that the database would be in the National Archives.
The Chairperson said it would be flagged and dealt with later along with the “archives” issue.
The Committee moved swiftly through “declassification of information,” “department,” and “downgrading of information.”
The Chairperson flagged “file series.”
Mr Landers returned to “downgrading of information,” saying that the word “safeguarded” served no purpose in the definition.
Mr Maynier noted that there was no definition of reclassification of information, which could mean up or down, and thus needed to further scrutinize “downgrading of information.”
Mr Landers offered an explanation of what downgrading is.
Mr Maynier said that as a practical matter, having no definition of reclassification or upgrading of information did not cover all possible situations. He remarked that there could be cases where information needed to be upgraded, even if that was the exception rather than the norm.
Dr Oriani-Ambrosini articulated the different levels of classification, and said it would be difficult to make something that was confidential no longer top secret.
Mr Landers proposed the following redefinition: “a change of classification of information from its status to be reclassified at a lower level.”
Mr Maynier noted that there were three kinds of processes – classification, declassification, and reclassification. He said this was not covered in the bill and needed to be considered.
Mr Landers said reclassification would be unusual and that the definitions would deal with what was contained in the bill.
The Chairperson asked the State Law Advisor if reclassification was used in the bill, and she said it was. He then proposed to leave “downgrading of information” as defined by Mr Landers and look at reclassification later. He asked the State Law Advisor to capture Mr Landers’ definition.
Dr Oriani-Ambrosini raised the point about redefining “demonstrable harm,” as in “identifiable damage.” He suggested defining “demonstrable harm” separately.
Ms Smuts and Mr Landers both said that the courts know what demonstrable harm is, thus there was no reason to define it.
Dr Oriani-Ambrosini argued that it was not clear what constituted demonstrable harm.
Mr Landers reiterated that he had always understood harm to be defined by the courts.
Mr Swart added that it was a matter of precedent.
The Chairperson said that by defining everything, the bill would become impossible to deal with.
Mr Maynier agreed with the Chairperson and the previous points made about the courts. However, he noted that a factor that had to be considered was that the classifiers may not know what demonstrable harm is and recommended the Committee discuss this. He said they had an obligation to make clear guidelines for classification.
The Chairperson this would risk coming up with a test that was not intended. He recommended the State Law Advisor look at Canadian, American, and other foreign states’ laws on the subject and consider the inclusion of a “demonstrable harm” definition. He then moved to “foreign state.”
Mr Swart noted that foreign state” should be used consistently instead of “another state,” as used in 32(1)(a)(i).
Mr Landers remarked that it read better with Mr Swarts’ recommendation.
The Chairperson told the State Law Advisor to take note of the change.
Ms Smuts raised the issue of how valuable information applied in the “head of an organ of state” definition.
The Chairperson asked if part (b) of the definition was required. He also asked if the bill was clear on who the head of organ of state can delegate to. He said the definition would determine who the responsible person is.
Mr Maynier suggested dealing with the definition after the application of the bill is settled.
Mr Landers said “identifiable damage” should be removed.
The Chairperson agreed to delete it. He said the “information” definition should be simple.
Mr Landers said it could be the same as the Oversight Act.
Dr Oriani-Ambrosini advised to check the definition of information in PAIA.
Mr Maynier asked what a “microform C” was, as included in the “information” definition.
Dr Oriani-Ambrosini stated that information could not be recorded on a microphone, which was also included in the definition.
The Chairperson asked the State Law Advisor to revise the wording. He then said the “information principles” definition would be removed with agreement from the Committee.
Dr Oriani-Ambrosini suggested simplifying the definition of “information security.”
Ms Smuts and Mr Landers agreed.
The Chairperson said to insert “state” information and remove (a) through (j). He flagged “integral file block” and moved to the “intelligence” definition.
Mr Maynier remarked that if this “intelligence” definition were drawn from existing intelligence legislation then that is problematic. He said previous definitions were scarily poor.
The Chairperson advised looking at the Oversight and Strategic Intelligence Acts, as well as the RICA Act.
Dr Oriani-Ambrosini said this definition did not seem to be working properly within the bill.
Mr Maynier, on the subject of previous definitions of intelligence, said he could not believe a democratic parliament passed such legislation.
The Chairperson remarked that the Committee did not need to “reinvent the wheel” here, and recommended coming back to intelligence later. He moved the debate to “legitimate interest.”
Mr Landers said this definition was unnecessary and had no application, which was agreed upon.
The Chairperson moved to the “Minister” definition. He felt that as worded, it did not work for this bill. He suggested specifying the relevant ministers that the act will apply to.
Mr Landers read from the Constitution regarding presidential appointments and said that provision covered the “Minister” definition.
The Chairperson asked the State Law Advisor to capture the new definition for “Minister.” He noted approval of the “MISS guidelines” definition and said “National Archives” was flagged pursuant to earlier discussion on it. Then he moved to “national intelligence structure,” and noted the issue of “agency” in the definition.
Dr Oriani-Ambrosini noted that “intelligence structure” was also defined in the “intelligence” definition.
Mr Landers suggested considering a new definition of “agency.”
The Chairperson said that “national intelligence structures” seemed to be fine, contingent upon the “agency” issue. He set aside “national security” for a later time and moved to “need-to-know.”
Ms Smuts said there was no reference to “need-to-know” in the act.
Mr Swart suggested that a definition for “non-state actor” may be necessary for the purposes of espionage offences.
The Chairperson noted the suggestion and told the State Law Advisor to insert it. He then moved to “organ of state.” He said it would be flagged because it was going to be reduced.
Dr Oriani-Ambrosini stated that the definition should not change, just the application.
The Chairperson directed the Committee to get through the definition of “prescribed” before adjourning until the next day’s meeting. He then moved to “original classification authority.”
Dr Oriani-Ambrosini proposed a rewording for the definition, saying it should read “the classification authority that authorized the original classification.”
The Chairperson asked if there were any objections to the new definition, and there were not.
Dr Oriani-Ambrosini noted that the phrase “general welfare” in the “personal information” definition was extremely vague.
Ms Smuts agreed with Dr Oriani-Ambrosini’s point.
Mr Landers agreed as well and said it should be taken out.
The Chairperson noted the agreement and moved on to consider “physical security.”
Mr Maynier asked if there was an alternate way to say “the use of physical measures.”
The Chairperson remarked that “physical security” was only used once in the bill and asked if it was under consideration for removal.
Dr Oriani-Ambrosini argued that as long as there was a clear definition for “physical security,” then there was no reason to remove it.
Mr Landers disagreed that it should be kept, which Dr Oriani-Ambrosini did not object to.
The Chairperson asked if the “prescribed” definition had been properly captured.
Mr Swart asked if it was in the bill, which Dr Oriani-Ambrosini responded to by noting two provisions where it appeared.
The Chairperson noted approval of the definition. He proceeded to thanks the members for their cooperation and adjourned the meeting at 20:07. He announced that the Committee would reconvene at 15:00 the following day.
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