Protection of (State) Information Bill: Deliberations on Definitions and new Working Document 10

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

01 August 2011
Chairperson: Mr C Burgess (ANC)
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Meeting Summary

Members continued their discussions on the definitions in the Protection of Information Bill (the Bill). They agreed to delete the definitions of “protected information”, “public interest”, “secret information”, “state operations”  (the Bill). The current definition of “record”, “security committee”, “state information”, “technical surveillance” were adopted. Technical amendments were made to the definitions of “regulations” and “security clearance”. The definitions of “public record”, “security”, “state security matter” and the need for a definition of “sensitive information” and “valuable information” and “Top Secret” were flagged for further debate. Subparagraphs (4) and (5) of the “valuable information” definition were, however, deleted, and the wording in (6) was to be removed to clause 32. The State Law Advisors were also asked to consider the wording in relation to whether Protection of Access to Information Act (PAIA) or the Bill might prevail, if there were a conflict.

The State Law Advisors then took the Committee through the new Working Document 10, incorporating amendments in line with suggestions by the Committee. The changes to definitions, arising from the previous day’s discussions, were outlined. The State Law Advisors reported back that the State Security Agency had been established under Schedule 1 of the Public Service Act, and Members asked that a reference to that Act be included, and that the previous wording relating to a proclamation be deleted. The State Law Advisors would still report back on whether defence and police archives were included in the Bill. Members discussed and thought there might be a need to further refine the definition of “classified information”, taking the transitional provisions into account. A revised definition for “downgrading of information” was formulated. Members examined possible options and agreed that wording based upon the Croatian Data Secrecy Act would be preferable, for the definition of “information”. A reference to the National Strategic Intelligence Act of 1994 was inserted into the definition of “information security”. Wording from the Intelligence Oversight Act, slightly amended, was adopted for the definition of “intelligence”, and a minor amendment, substituting “engaged in” for “involved in” was made to the definition of “non state actor”. The IFP Member expressed concern that the “state” and “Republic” seemed to be equated, and it was resolved to clarify this. A new definition would be inserted for “relevant Minister”.

Members then went through the changes effected to the main body of Working Document 10. In respect of clause 17, it was agreed that the wording in relation to declassification would remain in subclause (5). Members discussed, in some depth, the new amalgamation of clauses 32 and 33, relating to espionage and hostile activities offences. It became apparent that there were still some conceptual difficulties, since it seemed that the formulation of “non-State” actor could still include, for example, a newspaper. The IFP Member repeated a point made earlier that, by definition, disclosure of classified information would always cause prejudice, so that the inclusion of a separate requirement of prejudice to the state seemed tautologous. The DA felt that the original conceptualisation of “hostile activity” had created another tier of possession and disclosure, and felt that the current wording did not solve that problem, and suggested that “hostile activity” should be removed from the Bill. The ANC remained firmly of the view that the unlawful and intentional receipt of classified information must be criminalised. Members were generally agreed on the need for an espionage offence, with severe sanctions. They also noted the need to remove “or suspected” from the clauses. They agreed to flag this clause for further debate.

Clause 46 also remained flagged for further debate. In relation to clause 47, the DA insisted that if the Inspector General for Intelligence Services were to be given the function of monitoring and ensuring compliance by intelligence services, then this must be specifically stated in this Bill, rather than assumed, or by reference merely being made to other legislation. The DA and IFP Members were asked to draft proposals for further consideration by the Committee. Members considered the options that the State Law Advisors had proposed in respect of clause 49, and resolved to adopt Option A, although they would still discuss whether they wished to include penalties. Subclause 48(4) would refer only to “Parliament”. In respect of clause 49, Members indicated that the wording of the transitional provisions should be amended, so that pressure was placed on the Minister to deal with the making of regulations as soon as possible, and the State Law Advisors were asked to make proposals in that regard. The State Law Advisors would also still revert on clause 50. The title of the Bill now was “Protection of State Information Bill”.

Meeting report

Protection of Information Bill: Continuation of deliberations on definitions
The Chairperson asked Members to continue to deliberate on the definitions in the Protection of Information Bill (the Bill).

Protected information
Members agreed that this should be deleted.

Public Interest
Ms M Smuts (DA) submitted that this was not usually defined, and the courts usually ruled on it instead.

Mr S Swart (ACDP) said that the words only appeared in clause 23(1), which had in any event been reviewed. Although they appeared in the insertion dealing with the Protection of Information Act (PAIA) override, they would be interpreted as they were under PAIA.

Members agreed to delete this definition.

Public record
Ms Smuts made an inaudible suggestion, relating to the discussions still to be held on the National Archives Act, and asked this definition be flagged for further debate.

The Chairperson said that this wording followed PAIA.

Mr Swart commented that the definition in PAIA was wider, referring to public and private bodies.

Ms Smuts felt that the current definition was quite concise.

The Chairperson pointed out that the current definition already did take into account technological and scientific innovations, and the keeping of records in different forms. It was essentially saying that something could be regarded as a record, no matter how it was created.

Mr Swart compared the two definitions of the Bill and PAIA, and Members agreed to adopt the definition in the original Bill.

Ms Smuts asked why the wording “Regulations includes” was used. Only the Minister could make regulations.

Dr M Oriani-Ambrosini (IFP) agreed.

Mr Landers suggested, and Members agreed, that only the words “regulations means” should be used.

Dr Oriani-Ambrosini suggested the inclusion of a new definition for “Request”, as a request made by anyone in terms of PAIA. This highlighted the need to clarify how information was obtained. If the IFP’s suggestions were acceded to, then clause 28(1) would be redundant, as all requests for access to information would be made in terms of PAIA.

Mr Swart asked for clarity whether he wanted to refer to “request” or “request for access”.

Prof L Ndabandaba (ANC) thought it must be limited to “request for access”.

Dr Oriani-Ambrosini thought that “request”, and not “request for access”, must be defined. A special request for review, for instance, should be separate from the PAIA channel. Members would still need to decide if this would be lodged though the PAIA information officer, or directly.

Mr Swart thought that this was already in PAIA, and said that PAIA also included a definition of a “requestor”.

Dr Oriani-Ambrosini proposed the following words: “Request means a request by anyone for access to information in terms of PAIA”. He could take the Committee through all situations where “request” appeared, but suggested that the State Law Advisors (SLAs) may need to check for consistency in clause 3(3).

The Chairperson said that the State Law Advisors had already been notified of the possibility of inserting this definition.

Ms Carin Booyse, Deputy Chief State Law Advisor, Office of the Chief State Law Advisor, said that this had been inserted in a previous Working Document, where the wording of PAIA was used. It was not in Working Document 10, but the SLAs did have a list of definitions and these would be inserted where applicable.

Dr Oriani-Ambrosini suggested that it could be left to the SLAs to determine the most appropriate wording.

The Chairperson asked the SLAs to check whether “request”, or “request for access”, or both should be inserted.

Mr D Maynier (DA) asked that the SLAs should include a possible definition for “reclassification”.

Secret information
Members agreed that this definition could be deleted.

Mr Maynier suggested that this definition be flagged until the Committee had completed its deliberations on “national security”, since Members may then need to check whether “security” or “national security” would be most appropriate in the various clauses.

Dr Oriani-Ambrosini agreed with this and added that there were a number of phrases using “security” as part of a composite phrase. He, however, suggested that this be left undefined, so that the ordinary dictionary definition would be used.

The Chairperson noted both points, but added that Members might decide to delete it altogether. Clause 15 contained various references to “security”, and these may be removed, but proper consideration would have to be given to each instance to ensure that nothing was removed from the text.

Security clearance
Mr L Landers (ANC) suggested said that the word “candidate” should read “person”.

Members agreed to amend that.

Security Committee
Members raised no queries on this definition.

Sensitive information
Ms Smuts wondered if it was necessary to make reference to this at all. Although the words did appear in clause 13, the context of that made it quite clear.

Dr Oriani-Ambrosini said that the use of “sensitive information” made sense when there were three classes of information - commercial, in the public interest, and national security – included in the Bill but the concept now seemed redundant.

The Chairperson said that there were still two types of information - valuable and sensitive.

Mr Landers suggested that there was no need to give classified information” another name.

Mr Maynier agreed.

Ms Smuts said that Members would need to consider whether the reference to “sensitive” information was needed in clause 15(1)(a). For the moment, however, she suggested that it could be excluded, provided that it was flagged again for consideration.

Dr Oriani-Ambrosini agreed with Ms Smuts.

The Chairperson thought that if the concepts of valuable and sensitive information were lost, this might interfere with the structure of the Bill.

Mr Maynier said that Members had not finally agreed on the inclusion of “valuable information” in the Bill, but in any event these were categories of information. He suggested that the word “classified” should perhaps be used until Members had studied the full workflow of the Bill.

The Chairperson agreed, but made the point that the concept must be captured that both valuable and sensitive information must both be protected from loss, alteration or destruction, so that the offences would apply equally to this in the case of valuable information.

Ms Smuts believed that the offences in respect of valuable information should be reflected in the National Archives and Records Services of South Africa Act (the Archives Act).

State information
Members agreed to this definition.

State operations
Members agreed to delete this definition, as the words no longer appeared in the text.

State security matter
The Chairperson noted that this was referred to in the offence clause, but since that clause was flagged for further debate, so must the definition be flagged.

Technical surveillance
Members agreed to this definition.

Top Secret information
The Chairperson noted that the definitions for the other categories of information had been deleted.

Dr Oriani-Ambrosini said that since the whole phrase “Top Secret information” did not appear in the Act, there was no point in including this definition.

The Chairperson noted that the definition for “confidential information” had not been deleted, although the Committee had agreed to delete “secret information”

Mr Landers read out the wording of clause 15(3).

The Chairperson said that the Bill was trying to capture a concept, which is why it referred to the phrase “top secret information”

Dr Oriani-Ambrosini then suggested that the correct definition would read “Top Secret, when referring to information, means…”

Mr Swart said that the simple solution would be either to delete or include all three definitions. The context of the clauses where they appeared must be looked at. He thought that all three could be removed, as they really did not take the matter any further.

The Chairperson suggested that an end-receiver using the Bill would study the definitions and objects sections first, and if these definitions were removed, the sections would have to be read in detail. The purpose of having definitions was to make legislation more user-friendly. If removed, then the preamble or the objects clause would have to set out that the legislation would be dealing with those categories of information. 

Ms Smuts disagreed with the Chairperson, saying that a consumer should read the whole Act, and refer to the definitions to clarify any points in the main body of the text.

Ms Booyse noted that on the previous day the Committee had dealt with the definition of “classification” and this already set out the three levels of classification. However, the SLAs would report back on this point.

Valuable information
Ms Smuts moved for the deletion of this definition, consistent with the DA’s position that valuable information should not be dealt with in this Bill.

Mr Landers did not agree, although he said that subparagraph (a) did not make sense. By this definition, a copy of the Constitution could be defined as “valuable” if a person wished to use it for later reference.

Dr Oriani-Ambrosini said that what was contained in subparagraphs (a) and (b) were two requirements to establish the end. The Committee wanted to ensure that something that may be useful in the future should be saved, although he appreciated the difficulty in drafting this concept. It was almost defined by the exclusion of something that people knew was useless. He suggested the addition of a new subparagraph (b)(iii), reading “impair research, academic study or recording”. Subparagraph (b)(i) defined the interests of the State, and (ii) spoke to the interests of the public, whilst (iii) should include the interests of those working with historical records. He cited the example of records relating to the World Trade Centre, which were clearly of historical interest.

Mr Landers said that there seemed two possible options, and suggested something along the lines of  “valuable information means information…whose destruction or loss is likely to deny people… access to which  they are entitled”.

Mr Maynier suggested that in view of the proposals for amendment of the main clauses, this definition should be flagged, and that Mr Landers’ and any other proposals should be given to the SLAs.

Ms Smuts asked what was meant by subparagraph (2), which seemed to refer to the somewhat unclear language of clause 6. She was not sure that it said anything.

Dr Oriani-Ambrosini said that it seemed to be benign enough and should remain.

The Chairperson thought that subparagraph (3) was confusing.

Mr Swart noted that PAIA had an interesting clause, stating that the court should prefer an interpretation that was consistent with the objects of that Act, which seemed to enshrine the Constitutional nature of PAIA. This Bill was referring not only to access but also to classification. He understood that this might be trying to establish conflict resolution across the two pieces of legislation, but thought that it could be in conflict already with the specific clause in PAIA stating that PAIA should take precedence as it should “apply to the exclusion of any other information-related legislation”.

Ms Smuts suggested that a clause could be inserted to state that in the event of conflict, PAIA should prevail.

The Chairperson reminded Members that in the early discussions on this Bill, Dr Oriani-Ambrosini had drawn attention to the fact that PAIA was merely another law, and legislators could amend it.

Dr Oriani-Ambrosini said that there was only one level in the hierarchy of laws, of the laws themselves. No matter how section 5 of PAIA was worded, a subsequent piece of legislation could repeal it, or amend it. However, if that other piece of legislation contained a section that attempted to restrict the Constitutional provision requiring access to information, it would be unconstitutional. It was not possible to insulate any law from subsequent repeal. The term “Information-related legislation” was too broad.

The Chairperson read out section 5 of PAIA, which said that PAIA would apply to the exclusion of any provision of other legislation that prohibited or restricted the disclosure of a record, and was materially inconsistent with an object or a provision of PAIA. If the wording was left as it was currently, PAIA would prevail where there might be a conflict. He proposed that the Bill should rather state that “notwithstanding the application of section 5 of PAIA, this Act prevails if it is established that a document has been justifiably classified”. That would make it clear that the document must be dealt with under the Bill (once passed).

Ms Smuts said that the Chairperson was assuming a conflict of laws, which in fact did not exist. PAIA dealt only with withholding information from disclosure and not with classification of information. Nothing in PAIA precluded a person from classifying information. She thought it unwise and unnecessary to have a clause that attempted to neutralise PAIA.

Mr Swart agreed with Ms Smuts, and although he agreed that it was possible to put in an override to PAIA, he felt it would be undesirable since this Committee had agreed not to take anything away from PAIA. The Committee had not yet finished its discussions on clause 28. Further discussion was needed on how to harmonise.

The Chairperson said that this was a proposal only, and he asked Members to look at PAIA in more depth and see how this would relate to or affect the Bill. He wished this to be flagged for further consideration

Mr Swart also asked for consideration of section 2(1) of PAIA.

Ms Smuts reminded Members that the submission by the General Council of the Bar had argued that a constitutional difficulty would arise if the classification impermissibly weighed against rights of access under PAIA. The question was how well the Bill had been written. Clauses on criteria and thresholds, and clause 17 , had reached a good stage, and there should not be difficulties with impermissible weight when read with section 74 of PAIA. If the Committee reached an acceptable solution on “national security” then the danger of impermissible weight should fall away.

Dr Oriani-Ambrosini said that the possible addition mooted in fact merely stated the law, and should not be included because it was already covered in the Interpretation Act.

Mr Swart said he would prefer this to be flagged, not deleted immediately. The similar clause in PAIA gave an instruction to the Court to prefer a reasonable interpretation in line with the provisions of PAIA, and that was an important distinction on which clarity must be obtained. The effect was to set PAIA slightly higher than the general clause in this Bill. He thought that there was no harm in flagging it, and comparing it to PAIA to see if there was a distinction to be drawn.

The Chairperson asked the SLAs to consider if there would be damage to the Bill if subparagraph (3) was to be deleted, and to consider what the effect was of section 2(1) of PAIA, a similar clause, upon this bill, in the event that (3) was to be deleted or would remain.

Ms Smuts then proposed that subparagraphs (4) must be deleted, as it appeared to refer to the reasonable person tests.

The Chairperson said, and Members agreed, that (4) set out a factual situation to be decided by the Court, according to the law of evidence. It was not possible to decide, in a piece of legislation, whether a person knew something or not. This subparagraph would not bind the Court, and should be deleted. 

Dr Oriani-Ambrosini said that subparagraph (5) set out the business of the Court, and there was plenty of legal precedent for interpretation of “reasonably to have known or suspected”. Irrespective of the fact that this was something to be left to the Courts, it also seemed to place an additional burden on an ordinary person to be “reasonably diligent” and “vigilant”.

Thee Chairperson noted that the “expert” test was different to that of the “man in the street”. This subparagraph seemed to be trying to expand on that concept, but it was indeed a matter of evidence.

Mr Landers agreed that “ought to have known or suspected” was far too wide.

Mr Swart also agreed that this was a deeming provision, similar to subparagraph (4), and although more legislation seemed to be including such clauses, this did not detract from the fact that it was a matter to be dealt with by the Courts.

Members agreed to delete subparagraph (5).

The Chairperson formally instructed the State Law Advisors to move the definition in (6) to clause 32(1), as agreed to earlier,

Mr Landers clarified that the clause would be slightly altered, as it would only reflect wording from “if a court is satisfied..” 

Working Document 10: State Law Advisors’ summary of changes effected
Dr Oriani-Ambrosini wondered if the Committee should now proceed directly to a B-version of the Bill, and then deal with the finer aspects.

The Chairperson answered that the work on this version of the Bill still needed to be finalised. For this purpose, he asked the SLAs to take the Committee through the changes that were now reflected in Working Document 10.

Ms Smuts asked when the Committee would deal with the application clause.

The Chairperson said that the Committee would move on to this after hearing the presentation on Working Document 10.

The State Law Advisors set out the revised definitions, then summarised the changes in the Working Document and the original Bill.

The SLAs had been asked to look at the status of the “Agency”. Ms Booyse reported that the State Security Agency (SSA or the Agency) had in fact been established in terms of Schedule 1 of the Public Service Act, as a Schedule 1 agency. She therefore proposed that the words relating to the establishment of the Agency under the proclamation should be excluded, so that the definition would commence: “Agency means the SSA and includes…”

Mr Swart suggested that a specific reference to the Public Service Act should be included.

Ms Booyse noted the new definition for “archive”. She referred to the footnote, which stated that Members could consider using “a registry” where reference was made to records kept by an organ of state. The definition of “national archive” would remain.

Mr Maynier said that the SLAs had been asked to determine whether the defence and police archives were covered in the definition and by this Bill.

Ms Booyse said that the SLAs would advise on this later.

Mr Swart indicated that he agreed with the definition of “Archives” subject to a report-back on the defence force and police archives.

Classification of Information, classified information, The revised definitions were highlighted by Ms Booyse
Mr Swart suggested, in respect of “classified information” that the phrase “the state information” should read “state information”. Mr Swart thought that the Committee had agreed to delete words after “or any other law”, so that the remainder of the sentence in the new definition would fall away.

Mr Maynier asked if the Minimum Information Security Standards (MISS) would be removed.

Mr Landers said that they would not. MISS would effectively be replaced by this law, but documents classified under MISS would still need to be dealt with.

Dr Oriani-Ambrosini read from his notes, and said that if “classified information” was also to refer to previously-classified information, without any qualification, this could be problematic.

Mr Swart said that the existence of classified information was a fact. This included documents under the 1982 Act, which would be repealed, and the information would have to be dealt with.

Dr Oriani-Ambrosini clarified that many documents bore the incorrect stamp of “Confidential” when in fact they were not classified as confidential, but were embargoed until a certain time. He suggested that the words “classified subject to this Act” should be used, to avoid the Panel having to review anything that was obviously outside this Bill, including Cabinet Memoranda, and any other documents marked incorrectly. As presently worded, “classification” could be interpreted as extending to anything incorrectly marked, until either reclassified or reviewed by the Panel.

Mr Landers pointed out that this was normally dealt with in transitional provisions. Essentially, all information that was already classified would remain so classified unless reviewed or declassified. This would not be included in the definitions.

Dr Oriani-Ambrosini agreed that Mr Landers was correct, but this was not properly reflected in the definitions.  He thought the reference to the previous law should go into the transitional provisions, and that any references to the previous Act or the guidelines should be removed from the definitions.

The Chairperson asked Dr Oriani-Ambrosini to raise this point again, at an appropriate time, for consideration.

Classification review Panel
Members agreed to this revised definition.

Demonstrable harm
Ms Booyse said that the SLAs would revert to the Committee on “demonstrable harm”.

Downgrading of information
The changes to the definition of “downgrading of information” were highlighted. Ms Booyse pointed out that Members still needed to decide whether they wished to have a definition of “demonstrable harm”. The SLAs had looked at the tests in the court cases, and had highlighted this as they were still looking into the position in other legislation.

Mr Swart said that the wording might need to be improved.

The Chairperson noted that this definition was very different to the one in the original Bill. There did not appear to be a problem with the content.

Members suggested various wording, and the final amendment agreed to was “downgrading means a change of classification of information from its existing level to a lower level”.

Identifiable damages
Ms Booyse noted the omission of the definition of “identifiable damages.

Ms Booyse said that various options had been looked at for a definition of “information”. Some examples were shown in the document headed “Establishment of a filing or record keeping system of valuable information” (Filing System Document) which set out the definition contained in the Right to Information Act, as also parallel legislation in China and Hungary. Another possibility was to refer to the particular sections.

Dr Oriani-Ambrosini asked what “microform C” was.

Mr Maynier agreed that it was necessary to get an explanation on this.

Ms Booyse said that this definition had been drawn from other pieces of legislation, as well as the normal dictionary definition.

The Chairperson referred to Article 2 of the Data Secrecy Act in Croatia, whose wording was set out in the Filing Systems Document.

Mr Maynier said that the words “considering its content” may need to be reconsidered, and he asked also that the word “insight” be deleted.

Mr Swart said that the words “included but not limited to” should be used.

Mr Landers suggested, and Members agreed, that the definition from the Croatia legislation should be adopted, with the words “include but not limited to” and “digital” should be added, and removal of the word “insight” and removal of the words following the phrase “considering its content” (the last two lines of the definition).

Information principles
Ms Booyse noted that the definition of “information principles” had been removed.

Information security
Ms Booyse summarised the new wording for “information security, noting the removal of subparagraphs (a) to (j).

Mr Swart asked, and Members agreed, that this should include the words “as defined in section 1 of the National Strategic Intelligence Act of 1994”.

Mr Maynier supported that, but noted that hopefully this definition would be amended shortly.

Dr Oriani-Ambrosini wanted to reserve his position on this point.

The Chairperson noted that the new definition of “Information Security” did seem to capture the Committee’s instruction.

Ms Booyse indicated that the Filing System Document set out some definitions from South African intelligence legislation.

Mr Swart suggested that the wording of the 2008 Bill be followed, as it mentioned the types of intelligence, but stated “as defined by section 1 of the National Strategic Intelligence Act.

Mr Maynier thought that this was a sensible proposal, but asked what the effect would be if the National Strategic Intelligence Act were to be repealed.

Mr Swart said that the new legislation would need to deal with other legislation that was linked with that Act.

Mr Landers agreed that the definition in the 2008 version seemed to capture this more clearly.

The Chairperson said it might be simpler to use the definition as set out in the Intelligence Oversight Act, which read: “intelligence means the process of gathering, evaluation, correlation and interpretation of security information, including activities related thereto, as performed by the Services.

Mr Landers agreed, but said that “the Services” should be replaced with “national intelligence structures”.

Members agreed to the Chairperson’s suggestion, as amended by Mr Landers.

Legitimate interest; Need to know.
Ms Booyse indicated, and Members agreed with, the removal of both these definitions.

Non state actor
Ms Booyse noted the insertion of a new definition for “non-state actor.

Mr Swart said that there was only one reference to this in the Bill. He wondered if the definition should not simply be included in the relevant Chapter.

The Chairperson pointed out that this was also included in clause 32, dealing with espionage.

Mr Maynier said that instead of using “involved”, the word “engaged” could be used. Hostile activity was defined in PAIA.

Mr Swart said that on page 59, in relation to clause 32,  there were definitions of state, non-state activity, and hostile activity, for the purposes of Chapter 11”. 

Ms Booyse said that this could be taken out of the definitions and dealt with in the Chapter dealing with offences, although the SLAs recommended that it could also be dealt with in the definitions.

Mr Landers suggested a minor revision, to read:  “Non state actor means any person or entity, other than the state, engaged in …”.

Original classification authority; Personal information
Ms Booyse highlighted the amendments to both these definitions

Physical security
Ms Booyse indicated that this definition had been removed.

State / Republic
Dr Oriani-Ambrosini raised his concern that the definition seemed to equate “the state” with “the Republic”. The Republic was bigger than the state, as the state was merely a component in the Republic. He asked that this principle of making the two interchangeable should not be entrenched in this Bill.

The Chairperson thought that this was a philosophical argument. The context would determine the meaning. “State” (with a capital S), would generally mean the Republic of South Africa. However, he thought it would not be incorrect to refer to “the Republic”.

Dr Oriani-Ambrosini clarified that no-one could speak for “the Republic”. The current wording assumed that “the state” was the same as “the Republic”. This Bill referred specifically to “state” interests. He would feel more comfortable if the words “the state is the State of the Republic of South Africa” were included.

Ms Smuts supported these concerns. She pointed out that aggression or terrorism was directed against the people of the Republic, and it was the people who had to be protected. Aggression directed at overthrowing the three arms of the government was different. There was no such concept as “the people of the state”, they were “people of the Republic”.

Ms Booyse responded that the Constitution referred to the “Republic of South Africa as one sovereign and democratic state”.

Mr Landers said that there was no harm in changing the definition.

The Chairperson asked the SLAs to amend the definition to read “state means the state of the Republic of South Africa”. He asked if this definition should remain in the Chapter, or be moved to the definitions clause.

Mr Maynier suggested that it would be neater to include this in the definitions clause.

Relevant Minister
Ms Booyse proposed that a new definition for “relevant Minister” should be inserted.

Main body of Document 10: Summary of amendments
Clause 17
Ms Booyse noted that clause 22(2), as amended, referred to “conditions” and said that it seemed that the word ‘conditions” should also be referred to in clause 17.

She read out the new wording for subclauses 17(2), noted the changes to (e) and the deletion of (g). The footnote reflected that discussion was still needed on some points. Members would also have to decide on subclause (5), and whether it was necessary to have a stand-alone clause stating that when the conditions for classification no longer existed, information must be declassified. Suggested wording for a new clause (marked as XXX at the bottom of page 38 of Working Document 10) was included.

The Chairperson said that if this wording remained in subclause (5) then there was no necessity to include a new heading.

Members agreed with the Chairperson.

Mr B Fihla (ANC) said that there were many old records, and asked whether these would be downgraded or declassified.

The Chairperson said that the short answer was that whoever had to deal with that would use this Bill, and the criteria set out in clause 17, to determine whether that information must be reclassified or confirmed. Different criteria applied in the past, so that it was likely that many documents classified under the old regime would now be declassified.

Amalgamation of clauses on espionage and hostile offences
Ms Booyse noted that the definitions would be moved to the definitions section.

She also drew Members’ attention to the reference to a new subclause of clause 32(1), which she would address later. She also noted that, following today’s discussions, a definition would be inserted directly into this clause.

She pointed out that the document included also Option 2 and Option 3, which captured the concept of non-state actor slightly differently.

Mr Maynier said that although he had not had time to study this as carefully as he would have liked, none of the options set out seemed to capture the legislative intent. The question was who would benefit from the unlawful and intentional communication of information. Members had agreed that unlawful and intentional communication of information would be an offence, whether a foreign state benefited, or a non-state actor involved in hostile activities. That seemed to cover the concerns about the direct or indirect prejudice to the (home) state He thought it would be superfluous to make reference to directly or indirectly benefiting a foreign state or non state actor and directly or indirectly prejudicing the (home) state.

Dr Oriani-Ambrosini set out his argument that, by definition, the disclosure of classified information would prejudice the state, because a document could only be classified if the disclosure of that document would harm the state. He also had some concerns about the non-state actor. A non-state actor could be anybody who was not a state, and this could include a newspaper. The disclosure of a document to a newspaper could not be considered hostile activity. Until now, it had merely amounted to unlawful disclosure. There would always be someone benefiting. The special circumstances would benefit a foreign state, and that was agreed. However, the “definition” of a non-state actor was in fact not a proper definition because it sought to include everyone except a foreign state. The only difference between unlawful disclosure and this clause would be indirect prejudice to the home state, which was in any event predicated on the need to classify. It was, in his view, necessary to deal with the benefit to a foreign state.

Ms Smuts agreed. She reminded Members that hostile activity, as originally conceptualised, was a third tier of possession and disclosure. Possession and disclosure had always related to classified information. In the 2008 version of the Bill hostile activity (which was not defined) covered any state information, which, if disclosed to the prejudice of the State, could lead to conviction and imprisonment. If this concept was corrected by inserting “classified information”, it meant that this was dealt with in the same way as possession and disclosure. It was implicit in classification that there would be demonstrable harm and prejudice to the state. She reiterated her view that there was no such thing as a “hostile activity” offence, which was why she had suggested that it must be deleted, although she had agreed that espionage had a place in the Bill. It was then suggested that hostile activity, in PAIA, amounted to the same as subversion and terrorism, but only when related to another state would it become an offence carrying the stiffest sentence. She repeated that the notion of hostile activity should fall away.

Mr Landers said that this clause was dealing with Top Secret information, not ordinary valuable information. If it was argued that a non-state actor could include a newspaper, then he saw no reason why the unlawful and intentional receipt of Top Secret information – as well as its communication or making this available to someone else – should not also be an offence. The communication, delivery and making available that information was being criminalised. However, someone also was receiving that information, and he contented that the person receiving the information was not innocent, but was equally committing the offence of espionage.

Ms Smuts said that it must be assumed that there was benefit to another state.

The Chairperson said that the difference between espionage and hostile activities was outlined in the previous week. There was a subtle difference. Espionage focused on the benefit to another state, whereas hostile activities focused on prejudice to the home state. The SLAs were asked to consider joining the two offences, because the DA had contended that the hostile activities offence should fall away, to try to come up with one clause that accommodated the provisions of both former clauses 32 and 33. However, it seemed that once again objections had been raised to the hostile activities portion of that, which had come back to the argument that the hostile activity concept should be removed. It was agreed that, in respect of clause 32(1), the minimum sentence would apply, and that the override of clause 1(6) should be taken from the definitions clause to apply here.

Mr Swart added that there was a slightly different approach in clauses 32(2) and (3).

Mr Fihla thought that the Committee would need to determine what comprised each of those offences. He thought that hostile activities were those that would destabilise the home country.

The Chairperson suggested that the offence of espionage be left as it was, and that hostile activity be flagged for further discussion.

Dr Oriani-Ambrosini said that his understanding was that the SLAs were asked not merely to combine the two clauses, but to clarify some of the problems in definition. The definitions of hostile activity did not appear to survive scrutiny. Mr Fihla had taken a common-sense approach and had outlined espionage as generally understood, but said that this was not how it was being described in the Bill. Espionage generally involved the selling of information to a foreign enemy. However, the second category then included damage to the Republic, beyond the prejudice that would arise automatically from disclosure of classified information. If Mr Fihla’s approach was followed, the definitional problem placed before the SLAs might be solved. If not, then there should be further deliberations.

Mr Landers thought there was general agreement that the offence of espionage was needed, and that it must be dealt with severely. The Bill made reference several times to the offence of unlawfully communicating Top Secret information, and Members had agreed that minimum sentences were appropriate for this. However, the espionage clause still did not make mention of the person who was receiving the information, and that was a fundamental omission. Clause 18 provided that a person coming into possession of classified information must return it, failing which that person would be guilty of an offence, but the penalty set out in clause 39 was only imprisonment for five years, or a fine. This did not seem to be in line with the general principle that espionage must be treated as a special and severe offence. He asked if Members were suggesting that a foreign agent who had bought and received information could not be arrested because he had not committed an offence.

Mr Swart said that it was necessary to make a distinction between a citizen who came into possession of information, without any intention to benefit from it.

Mr Maynier gave a hypothetical example that a person with the necessary security clearance might place a Top Secret document into another person’s briefcase. The latter person should not be charged if he had no intention to receive the information.

Mr Landers said that “unlawfully” and “intentionally” would capture that. The fact that the person handed the information back, as set out in clause 18, would indicate his good faith.

Mr Swart believed that the purchase of information to benefit should be the test.

Mr Landers disagreed, since that person would not be entitled to have Top Secret information.

Mr Fihla outlined that during the Cold War, if an American citizen gave information to a Russian spy, both could be arrested and given heavy sentences.

Dr Oriani-Ambrosini noted that in the combined clause the words “or suspected “ had not been taken out

The Chairperson noted that this clause would remain flagged for further discussion.

Clause 35(6)(e)(v)
Ms Booyse outlined the changes to this subclause, which dealt with tampering or unauthorised access to computers. In respect of queries on page 71, the SLAs would revert to the Committee.

Clause 44
Ms Booyse noted the new reference to “a person ordinarily resident”.

Clause 46
Ms Booyse noted that this clause was flagged for further discussion.

Clause 47
Ms Booyse noted the insertion of the reference to annual reports having to be submitted to the Classification Review Panel, and the substitution of “table” for “submit” in respect of those reports being sent to Parliament.

Ms Booyse then reminded Members that the SLAs had been asked to look into the functions of the Inspector General for Intelligence Services (IG). The functions of the IG were set out more specifically, in intelligence legislation, in relation to its monitoring, including compliance, by any service, as well as the submission of reports by those responsible for that service. Clause 47(1) set out that the head of an organ of state must provide reports, and the SLAs suggested that this should be worded as “For purposes of this section, the head of an organ of state will include the head of a service defined in section 1 of the Intelligence Services Act”. The IG would then be able to see to the compliance and monitoring was done.

Mr Maynier was not sure whether this proposal would actually give effect to the IG effectively monitoring the intelligence services. The Agency would have functions in respect of organs of state, but the question was who would carry out monitoring and review in respect of the intelligence services.

The Chairperson said that the inclusion of the reference suggested by the SLAs would give that authority to the Inspector General, Alternatively, section 7 of the Intelligence Oversight Act  said that the IG would have oversight over all these services.

Mr Maynier said that he would be happier if the duties of the IG, and the reporting lines in respect of the Minister and Classification Review Panel, were more clearly set out.

The Chairperson said that section 7(7)(a) of the Intelligence Oversight Act said that the functions of the IG, in relation to the services (which were then defined), were to monitor compliance with constitutional applicable laws and policies and intelligence and counter-intelligence.

Mr Maynier said that there was still nothing in the Bill that obliged the IG to carry out some of the functions that were set out in clause 30. He agreed that nothing would preclude the IG from doing so, but it was not clear how the IG would need to report to the Minister, the Panel and the Joint Standing Committee on Intelligence (JSCI). He therefore proposed that the functions and reporting lines must be clearly stated in the Bill, and stressed that these must be specified, firstly, because this was a sound principle in law, but also because this would ensure that the IG, whose office was not functioning optimally, would be actually obliged to carry out those functions, rather than leaving this to the IG’s discretion.

The Chairperson noted that the Inspector General’s role had been raised in the context of the reports. Mr Maynier was now raising something else.

Mr Maynier explained that the point of departure should be to accept that the Agency would play a role in monitoring and providing advice to organs of state, other than security services, particularly those who may opt in. However, it was necessary to decide who would be responsible for monitoring compliance in intelligence services, and it was agreed that the IG must play this role, but that the functions and reporting lines should be specified in the Bill, and Members must be satisfied that there was no conflict with existing legislation.

Mr Landers said that on the surface this sounded fine. However, he had understood that there was at first a proposal that the Classification Review Panel (the Panel) should inspect intelligence structures, and it was then pointed out that the IG already did that and there was no need to duplicate the function. Intelligence services were obliged to report every year to the IG, and the IG could also carry out inspections to ascertain whether they were complying with the law, and then submit a report to the Minister and JSCI, which would indicate whether the services were functioning in terms of the constitution and complying with the law. His understanding was that Bill and Intelligence Oversight Act were essentially directed towards ensuring that organs of state were classifying information in the proper manner.

Mr Maynier said that there seemed to be agreement that some institution needed to inspect the intelligence services. He would be happiest to see the Panel doing so, failing which the IG could, but he wanted to stress that the IG must be specifically obliged to do so, in the event that this function was assigned to the IG.

Mr Fihla said that the IG already had its own terrain, although if the new Panel was given sufficient powers, this would appear sufficient.

Mr Landers said that the functions of the Panel were set out. Clause 30 set out the functions of responsibilities of the Agency, but there seemed little in this clause that the IG should do, in relation to the national intelligence structures.

Mr Sisa Makabeni, State Law Advisor, Office of the Chief State Law Advisor, pointed out that the Committee had instructed the SLAs to propose where the various functions and responsibilities set out in clause 30 should lie, but that the Committee had not made its final decision yet on who should fulfil the role for the functions set out in each subclause.

Mr Maynier thought that there was no disagreement on the intention to have monitoring, but the question remained as to who should perform that function –the Panel only, or a combination of Panel and IG.

The Chairperson said that the Panel could not oversee the Agency, as the IG and JSCI already did so, and it would upset the hierarchical oversight set out in the Constitution if this function was given to the Panel.

Mr Maynier stressed that the DA wanted to be satisfied that the classification process in intelligence was regularly reviewed, and reiterated that unless there was an obligation placed on the IG, this might end up not being done.

Dr Oriani-Ambrosini said that the balance of interest, in relation to classified information, was against the right to know, so this made it even more important that the review function be done properly, not only to ensure that the administrative aspects were properly performed, but that the values of transparency and the public’s right to know were protected. This was very different from other situations.

The Chairperson asked Mr Maynier and Dr Oriani-Ambrosini to prepare a proposal for the Committee.

Clause 48
Ms Booyse highlighted the changes to this clause. She noted the insertions into subclauses (2), (3)(a) to (d), and a new subclause (4),which required regulations to be tabled for approval before being published. She then indicated that an alternative formulation of these subclauses was given on page 78 of Working Document 10.

Clause 49
Mr Makabeni noted that the SLAs had been asked to draft proposals with regard to regulations. Various options, and a consolidated Template Option E, were set out in the document “Proposals with regard to Regulation Penalties” He read out these options. He said that although the Minister was required to make regulations, it was not known what those might be, and what offences might be created, so it was impossible to advise whether any suggested penalties might be proportionate. For that reason, he suggested that Option E might be preferable.

Ms Booyse also noted that the Committee had been asked to make deletions from subclauses 49(1)(b) to (g). Clause 49(2) was to be removed, and substituted with a new subclause (2), referring to section 20.

Mr Landers said that clause 49(2) implied that a new classification would follow after the review and the compilation of the report. However, this should be stated in terms, so that it was clear that something must happen to the classified information as the next step.

Members agreed.

Dr Oriani-Ambrosini referred to the options included in the separate document, as outlined by Mr Makabeni, and thought that words needed to be added to Option B.

The Chairperson suggested that Option A seemed to be the easiest option, which correctly captured what had been discussed. With agreement of Members, he asked the SLAs to insert Option A into the Working Document, where appropriate.

Ms Smuts was still not happy about delegating powers, and noted that some of the offences for those who did not put controls and measures in place seemed too broad.

Mr Landers pointed out that the marking of classified documents, as set out in clause 48(1), was a very important function, which could have serious consequences if not done properly. Similarly, there should be restrictions on how these documents were transferred. It was also important to have quite stringent measures to prevent over-classification in (i).

Dr Oriani-Ambrosini said that these offences would not relate to the situation where disclosure took place, and these offences were setting out things that were done incorrectly without reaching the threshold of causing harm to national security.

The Chairperson asked if Members wanted to include penalties.

Mr Swart suggested that this be flagged for further consideration.

Mr Swart also suggested, and other Members agreed, that subclause 48(4) should refer only to “Parliament”.

Clause 49
Members, without using their microphones, discussed the reference to “a reasonable period” in clause 48(2) and the suspension of the Act pending establishment of regulations, referred to in clause 49.

Dr Oriani-Ambrosini said that it was agreed that the words “reasonable time” would be used in clause 48, to create an incentive for the Minister to adopt new regulations as soon as possible, at which stage the suspensive condition of clause 49 would end. If reference was simply made to information classified under previous legislation, not “subject to this Act”, then there would not be any persuasion and pressure on the Minister, and the current unsatisfactory status quo would remain. The transitional provisions, in respect of what was “classified” must also be taken into account, so he suggested that an additional sentence must be added, to the effect that “any information classified in terms of any previous law shall remain in force in terms of such law, subject to this Act”. That should place pressure on the Minister to deal with the matter.

The Chairperson asked the SLAs to try to draft something, in a separate document, to capture the concerns of Dr Oriani-Ambrosini.

Clause 50
Mr Maynier reminded the Committee that the SLAs must still revert on the three pieces of legislation mentioned on the previous day.

Title of Bill
Ms Booyse noted that the word “State” had been inserted into both the title and short title clause of the Bill,

The meeting was adjourned, until 09:30 on 4 August 2011.


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