Protection of State Information Bill: Working Document 13; functions of Classification Review Panel and Agency

Meeting report

Procedures
The Chairperson proposed using a working document that incorporated all the amendments, noting its previous success. He also suggested displaying the bill on a screen so that changes and insertions could be instantly visualised. He then moved to the DA’s proposal for a hostile activity offence.

Presentation and deliberations on DA proposal for a hostile activity offence clause
Mr D Maynier (DA) presented his party’s proposal. It specifically referred to non-state actors (such as al-Qaeda) and the transmitting of information to them that would be detrimental to South Africa. He stated that the proposal both captured the legislative intent of the committee and would dispel fears in the media that this would be a broad dragnet clause.

The Chairperson responded to the proposal, noting its similarities to the espionage clause. He said that proposal changed the focus from the prejudice the Republic may suffer to the benefits of the perpetrator’s actions.

Mr S Swart (ACDP) thought the proposal was a positive recommendation. He noted that hostile activities were previously understood as disclosure of information, which was not consistent with other legislation such as PAIA. He said the proposal clearly distinguished what constituted a hostile activity in this bill’s context, and added that his party would support it.

Mr M Sonto (ANC) asked how “state” was being defined in this provision and added that the law was being made for the Republic and not any other state.

Mr Maynier iterated that this bill dealt with the classification of information and the proposal was designed precisely to criminalise the unlawful disclosure of that information. He noted that “non-state actor” and “hostile activity” were defined in clause 1 of the bill, and the proposed offence provision was specific in what it was referring to.

Mr Swart raised the question of whether the espionage clause would also cover the hostile activities of a foreign state. He argued that while it may be covered, but the members should ensure that it is clear under these provisions.

Mr L Landers (ANC) said that the proposal was good and went a long way toward resolving the difficulty the Committee has had in dealing with the hostile activity offence. To Mr Swart’s point, he said the clause needed to be clear as to whom the information was being delivered to. He proposed changing the wording to include “any person,” so that the recipient would now be clear.

The Chairperson asked Mr Swart to clarify his recommendation, adding that he thought hostile activities by a foreign state was captured by the espionage clause.

Mr Swart responded by saying that his question was precisely whether the espionage clause was broad enough and asked the State Law Advisors to consider the issue.

Mr Maynier said he felt that it would be a criminal offense to disclose classified information that would benefit a foreign state, regardless of whether they engaged in a hostile activity or not, as states both friendly and unfriendly to South Africa would want to collect such information.

An opposition member articulated that a state cannot be taken to court and thus should be left out of the hostile activity offence.

The Chairperson said he did not feel that the hostility of the foreign state was not relevant to the proposal. He further said that he approved of Mr Landers’ rewording.

Mr Landers said that the provision needed to be clearer about the relevant actors.

Mr Swart suggested that if the words “any person” were to be inserted into the proposed offence provision, then they should also be inserted into all similar clauses, which Mr Landers agreed with. He also proposed an additional minor rewording of the provision.

Ms M Smuts (DA) said she was happy with Mr Landers’ proposal. However, she stated that how the provision’s sub-clause ended remained an issue. Responding to the Chairperson’s request for clarification, she suggested the sub-clause should end by reading as follows: “which the person had known or reasonably to have known would directly or indirectly contribute to hostile activity by that non-state actor.”

The Chairperson asked for the opinion of the State Law Advisors on the matter.

Mr Sisa Makabeni, State Law Advisor, Office of the Chief State Law Advisor, said the Committee needed to consider whether Mr Landers’ proposal would create a loophole in which non-state actors would set up intermediaries to provide the information, thus avoiding criminal offence.

The Chairperson asked why it was necessary to deviate from the concept of the prejudice suffered by the Republic to the benefits of the perpetrator. He queried how the receiver of the information would be punishable. He added that the Committee needed to first formulate who the provision was dealing with before applying the term “non-state actor.”

Mr Maynier told the Chairperson that he was not properly framing the proposal. He distinguished the espionage and hostile activity offence clauses, and said the aim was to criminalise the unlawful disclosure of information.

The Chairperson responded by saying that there was still no provision to punish the receiver under the espionage clause.

Ms Smuts argued that the receiving of information was outside the scope of the proposal and had no raison d’être here. She said the proposal’s intent was to make an offence relevant to terrorism and sabotage, noting that in the modern world, hostilities are engaged by non-state actors without geographic borders. She noted support for Mr Landers’ idea.

Mr Landers made remarks on the loophole noted by the State Law Advisor. He said the Committee had still not adequately addressed the Chairperson’s concerns.

Mr Maynier said that there may be a need to criminalise the receiving of unlawfully disclosed information by non-state actors.

The Chairperson said two different things were being dealt with here and the original discussion had been lost.

Mr Sonto said there was initial agreement but after the State Law Advisor’s comments focus had been lost, and he asked the Chairperson to control the discussion.

Mr Maynier stated that he thought it was agreed to insert “any person.”

Ms Smuts also expressed her understanding that Mr Landers’ suggestion would be inserted into the DA’s proposal.

Mr Landers asked if the provision’s criteria should be the benefitting of a foreign state or a prejudice to the Republic.

Mr Sonto said he was more attracted to the “benefit” wording, but anything that prejudices the Republic should be criminalised, as that was at the heart of the bill’s purpose.

Mr Maynier offered clarification on the matter and argued that prejudicing the state was an implicit offence with the bill’s provisions. He said it did not need to be captured in the offence clause.

Mr Landers suggested that both prejudice to the Republic and the non-state actor be included in the hostile activity offence, but should bear in mind the loophole warned of earlier.

The Chairperson said that using “benefit” would make the element of a crime more difficult to prove in court. Hence, prejudice to the Republic was a more logical and reasonable choice. He advised not to create a law that provides the prosecuting authority with a difficult task. He also said that it was not necessary to define “hostile activity,” but that the Committee could proceed with the drafting style it had been using.

Mr Maynier remarked on the intermediary scenario that Mr Landers and the State Law Advisor had discussed. He explained what would happen in that event and expressed concern with the broadness of the provision.

Ms Smuts referenced a Canadian statute that spends two pages defining prejudice to the state, demonstrating the problem with attempting to do so in this bill. She asked what would make prejudice easier to prove in court.

The Chairperson responded by providing an analogy to the crime of fraud.

Ms Smuts said that while the concept of prejudice was pretty evident in financial fraud, the same was not true for the broader scope of prejudicial activities to the state in this context.

Dr M Oriani-Ambrosini (IFP) stated that in disclosing classified information, there was inherently prejudice to the state. He said the mere prejudice that goes with disclosure is something else, which was captured by the hostile activity offence provision.

Mr Landers said he was still trying to understand why “prejudice to the Republic” was seen as vague

The Chairperson clarified his position by saying that prejudice was not obvious, and it still had to be alleged and proven.

Dr Oriani-Ambrosini changed his position and said that prejudice should be explicitly included in the provision. He followed up the Chairperson’s point by saying it would be another element that the prosecution would need to prove.

Mr Maynier referred to a book on the Jackie Selebi investigation to provide an example of role of prejudice in prosecution. He advised that the Committee must be very careful with the concept of prejudice and also noted Canada’s lengthy definition, likewise to Ms Smuts.

Mr Landers responded to Mr Maynier’s example by saying there was no prejudice to the state in that case, and said the difficulty of proving it was precisely the point he and the Chairperson were trying to make.

Mr Maynier said that if the offence was too broadly drafted then it would become a dragnet clause that could unintentionally incriminate people for performing hostile activities.

The Chairperson said that simply showing that something was passed along was not sufficient. He said the prosecution would also have to show that the perpetrators benefitted from it. He further stated that without defining prejudice, the meaning remains unknown, but the court will be able to decide. He referred to Mr Landers’ suggestion to include both benefit and prejudice in the provision.

Mr Swart stated that the concern about proof also applied to espionage.

The Chairperson asked for the State Law Advisor’s advice on a redraft of the proposal.

Mr Maynier felt that the new rewording would bring the Committee back to square one. He stated that it might be useful for the State Law Advisors to work on defining prejudice.

The Chairperson noted the difference of opinion amongst the members and asked for a new document to be considered once it was drafted.

Mr Maynier raised the point that if prejudice to the state was to be retained in the bill, then it must be defined, because state officials will need to understand it.

Mr Landers objected by saying there was no need to define prejudice in any legislation because the courts deal with it all the time. He said the Committee did not need to reinvent the wheel to tell the courts what constitutes prejudice.

The Chairperson proposed that if prejudice was to be defined it should not be limited to a set number of actions, as that would limit the power of the courts. He then directed the Committee to move on from the hostile activities proposal.

Presentation and deliberations on Working Document 13
Ms Carin Booyse, Deputy Chief State Law Advisor,  and Mr Makabeni presented Working Document 13. Mr Makabeni noted the proposed addition to the functions of the Classification Review Panel and read through the relevant clause.

The Chairperson noted that what had been read came from the original bill, specifically referencing pages 42 through 44 in the Working Document. He asked the State Law Advisor to review which powers should remain with the agency and which should go to the Panel.

Mr Swart asked to discuss what had been deleted, noting that he did not see 41(d) in the document.

Ms Smuts remarked that certain organs of state have rejected the agency’s advice. She referenced the implications of the opt in clause.

Mr Landers said that the early applications clause would need to be revised. He added that if the event that an organ of state opts in, the organ would need expert support and advice.

Ms Smuts said that it was still unclear what the National Protection of Information policies were.

Dr Oriani-Ambrosini stated that even if the opt in clause ends up in the bill, South Africa was not a country where departments have an administrative mind of their own. To this point, he made a prediction that there will be a cabinet resolution ordering departments to opt in. He felt this needed to be considered in the legislative process.

Mr Maynier referred to clause 30(1) and articulated his understanding of it. He felt that the agency would be responsible for police and defence intelligence, as well as other agencies that opted in, except for state security. He asked who would monitor the agency.

The meeting was adjourned briefly for tea.

After the tea break the State Law Advisors circulated a document in which the suggested responsibilities to be assigned to each of the Classification Review Panel (the Panel) and the State Security Agency (the Agency) were set out. The Chairperson reminded the Committee that when the idea of the Panel was mooted, the State Law Advisors had been asked to make some suggestions as to what functions in the original Bill could be assigned to that Panel, and they had been asked to draw up a separate document setting those out.

The Chairperson noted the references, under the Panel to “identify and explore” and noted Dr Oriani-Ambrosini’s suggestion to replace “explore” with “promote”.

Mr Makabeni took the Committee through the document, which, firstly, set out some functions for the Panel. These had been taken from the original Bill’s identification of matters that the Agency would have performed. Other matters, however, clearly still remained the responsibility of the Agency, and these were then listed under the Agency.

Ms Smuts felt that these clauses still did not quite reflect the intentions of the Committee. The original wording setting out the responsibilities of the Agency had been drafted when the scope of the Bill was much broader. She thought that much of what was contained in that was far too uncertain, and it was not necessary for the Committee to try to work around the original wording, but must apply its mind to what was now relevant.

The Chairperson noted that considerable time had been spent developing the concept of the Panel The Committee was now essentially looking at whether it should or could be given more functions. His view was that the functions, which had, in accordance with previous instructions to the State Law Advisors, been “distributed” between Panel and Agency did not indicate that it would be useful to extend the functions of the Panel. Its main function of carrying out reviews was already catered for elsewhere.

Mr Swart noted that he agreed, broadly, with the Chairperson. Much of what was set out in this new document included matters already set out in clause 59, such as training and policy issues. He would be cautious to add more functions to the Panel. Another issue was whether the Agency had to have these functions, or whether they would essentially fall away.

Ms Smuts was of the opinion that the functions, other than those in (a) to (c), could be deleted.

The Chairperson agreed that what the Agency would be mandated to do, by this Bill, was a separate issue. If the Panel was set up to exercise oversight over classified information, then it was necessary to ensure that it concentrated on doing this. The development of education materials and other functions were not in line with what was originally envisaged, and certainly not in line with the thinking behind the proposals made by the ANC to address the concerns raised at the public hearings. The Panel should be focusing on overseeing the work that the classification authorities were doing.

Mr Swart made a formal proposal to delete subclauses (d) to (i).

Mr Swart also said that he would like to raise another issue on the application of the Bill, and asked Members to think about whether the Panel would need an additional function of being involved in the process for organs of state wanting to opt-in.

Mr Landers said that Dr Oriani-Ambrosini had raised this issue in passing, although he conceded that the original idea of allowing organs of State to opt in was a suggestion from the DA.  Dr Oriani-Ambrosini had suggested that he was knowledgeable about the processes but, with the greatest respect, this was not always true. Members had been persuaded that there should be an opt-in clause. Now that this had, in principle, been accepted, Dr Oriani-Ambrosini had made various comments against it. He would not like people in this meeting to get the wrong opinion.

Dr Oriani-Ambrosini wanted a chance to correct this statement.

The Chairperson noted that the meeting was not currently dealing with clause 2, on the application of the Bill. This was not the first time that Dr Oriani-Ambrosini had directed Members’ attention to clauses that were not actually being considered. This often created the wrong impression in others attending the meeting. He said that Mr Landers had been entitled to give a response because Dr Oriani-Ambrosini had deviated from his own document.

Mr Landers said that the arguments raised many months ago related to the possibility of every single state entity having to classify documents, and it was then agreed that the application of the Bill would be restricted. It was ridiculous to suggest that they should be allowed to classify on the basis of a Cabinet decision.

Dr Oriani-Ambrosini said that one overriding principle applied in this Committee was that of truth. He had not raised this issue. Ms Smuts had spoken of the scope of application. Mr Landers had then replied. Dr Oriani-Ambrosini had intervened with a marginal comment. In fact, he had not raised any issues on the scope of application, which he had said took care of itself if the necessary safeguards were put in place as to what may be classified. He did not believe it was true to suggest that he had departed from his document. All he had done was to make a prediction that within one year of this Bill being passed, there would be a Cabinet memorandum listing organs of state that would need to opt in. That, however, was merely to be seen as a prediction, and time would tell if he was correct.

Mr B Fihla (ANC) suggested that it would be useful to have recordings of what was being said by Members. He said that some Members seemed to forget what they had said earlier.

Dr Oriani-Ambrosini took issue with this, and said he regarded the insinuation as insulting.

The Chairperson cautioned Members to control themselves.

Mr A Maziya (ANC) and Mr M Sonto (ANC) also asked Members to try to maintain a calm attitude, and not to be negative.

The Chairperson said that Members had shown good cooperation for many weeks, and whatever had triggered this tense situation could be overcome. The current exchanges would not help the process. He asked Members to focus on the responsibilities of the Agency. Mr Swart had formally proposed that only subclauses (a) to (c) be retained as the functions of the Panel. Members would then look separately at the responsibilities of the Agency.

Dr Oriani-Ambrosini said that he understood what was being said, but his concern was around oversight. There were two aspects to this – firstly, investigating how matters were being handled, and secondly, making suggestions as to how they could be improved. If all these subclauses were removed, the function of oversight would remain exclusively with the Agency, as the Panel would be given one specific task. If the Panel was really to be made into an independent Panel with oversight, then it must be clear (and he commented that the language needed to be changed) that the function of oversight lay with the Panel, and not with the Agency.

Mr Swart asked if, under subclause (a), the words “review and oversee” were not sufficient, and whether those could not be applied broadly. He thought that a long argument could ensue over what Members understood by “oversee”. This word had, during earlier discussions, been added to the original narrower function of “review”.

Dr Oriani-Ambrosini had no problem with this, but said that oversight related to the checking of implementation of the Act within the organs of state, irrespective of the scope of the application of the Bill. Monitoring of implementation of policies would go further than the keeping of information, as it would also involve investigations into how requests for access were handled and access was granted. It was, however, critical that the Panel should also be able to make suggestions for improvements.

Ms H Mgabadeli (ANC) pointed out that the rest of the Bill also set out functions for the Panel, so it would not be confined to what was now being set out in subclauses (a) to (c).

Mr Landers said that Members often had to remind themselves, during the meetings, that they had agreed to limit the application of the Bill insofar as it applied to classification and declassification structures. The “intelligence services” was defined, and would, basically, including intelligence divisions of the Departments of Defence and Police and the State Security Agency, and those who opted in, so there were very few state entities who would be classifying. Earlier, the Chairperson had indicated that the Inspector General of Intelligence (IG) had functions and powers assigned under the Intelligence Oversight Act. He urged that all Members should read that Act, but summarised that the functions of the IG included monitoring compliance by any service with the Constitution, applicable laws and relevant policies on intelligence and counter-intelligence. When this Bill was passed, it would fall into the category of “applicable laws”, and so the IG would have duties to monitor and review in terms of this legislation. The Intelligence Oversight Act also provided for the IG to have access to any premises under the control of any department, if required for the performance of his or her functions, and the IG was entitled to demand any necessary reports. The IG would also submit certificates, similar to those of the Auditor-General, as to whether the services had complied with the Constitution and the law. These certificates were provided to the Joint Standing Committee on Intelligence (JSCI). While Mr Landers could understand the cynicism expressed by many Members, he did not share in it. If, as alleged, although he himself was not convinced of this, the Office of the IG lacked capacity, the solution was surely to provide the necessary capacity and resources to this office, rather than trying to create another structure to do its work. He reiterated that only the national intelligence structures and opting-in state entities would be affected by the Bill.

The Chairperson noted that all Members, apart from Dr Oriani-Ambrosini, agreed that subclauses (d) to (i) should be excluded. He noted that Dr Oriani-Ambrosini would have another opportunity to persuade Members why certain functions should be retained, , if he still held this view, when the Committee went through the Bill again. He asked that if Dr Oriani-Ambrosini thought that the proposals should be reworded, he should also prepare a new draft for presentation at that time. In the meantime, the State Law Advisors (SLAs) were asked to delete subclauses (d) to (i).

The Chairperson asked Members to consider whether these deleted functions should apply to the Agency, and be set out in clause 42 of the new Working Draft (clause 40 in the original Bill).

Mr Landers asked that a correction be made to clause 42(1). The phrase “The Agency is responsible for ensuring implementation of protection of state information practices” would be more appropriate and consistent.

Dr Oriani-Ambrosini asked how the wording ”all organs of state” fitted in with the rest of the Bill, which no longer applied to all state organs. He suggested that the words “to which this Act applies” may need to be added in after “organs of state”.

Mr Maynier said this related back to his earlier points. The IG would be monitoring the intelligence structures, but the monitoring of the organs of state who opted in to the Bill would presumably need to be carried out by the Agency. If that was so, then perhaps a reference must be made to organs of state opting in, in terms of this Act.

Ms Smuts said that she still wanted to know what would comprise “protection of information practices and programmes”. She enquired if these would be contained in regulations that the Minister would make under clause 48. It was also not clear to her what exactly would be included under “training and guidance” or “organisation of administrative functions to ensure that information was adequately protected”. 

The Chairperson said that there was an understanding that the Agency would play some role and he thought that this would be captured.

Ms Smuts said that, with respect, the Agency had effectively run everything when classification was done under the Minimum Information Security Standards (MISS) and the question was still not answered as to exactly what role it would play in terms of the Bill. She made no assumptions that the Agency should necessarily play any role, and felt that any role that it had would have to be set out in specific terms.

The Chairperson reminded Members that Mr Maynier had debated whether the Agency would have any authority over the defence force and crime intelligence. Once that had been answered, it seemed that he had no problem with the Agency having other functions. However, Ms Smuts seemed to hold another view.

Ms Smuts also said that Members still needed to resolve issues around valuable information, in particular whether the protection policies applied to this, as well as to classified information.

The Chairperson thought that perhaps where the Agency was specifically excluded, this may need to be stated.

Dr Oriani-Ambrosini proposed that perhaps the wording of clause 42(1) should refer to “implementation and protection of sensitive state information and programmes in terms of this Act, in all organs of state and government to which this Act applies, subject to the functions of the Inspector General”. This would exclude valuable information, since the Agency did not have the skills to recommend how such information should be preserved, limited the functions of the Agency to those organs of state to whom the Bill applied, and made its functions subject to the IG’s function of dealing with security agencies. This would ensure that the Agency would not effectively be checking on itself.

The Chairperson asked if all Members were happy that the Agency did have a role to play. The DA still had some queries about the inclusion of valuable information in the Bill. It could not be assumed that the Agency  would not have any role. Databases could be targets of hostile actors. There were also questions around protection of databases in counter-intelligence.

Mr Maynier said that perhaps his position had been slightly misconstrued. He had initially pointed to difficulties with clause 30 (as it then was) which meant that the Agency might monitor defence and police intelligence. Although he was happy with the Agency doing this, he had been concerned that there might be negative consequences and it may not be practical.

Ms Smuts wondered if it would not be preferable simply to say that the Agency must monitor compliance with the regulations that the Minister had prescribed, which would also cater for the fact that the Minister would be able to regulate for some offences. She thought that the reference should then be to “classified information”, which seemed more consistent than Dr Oriani-Ambrosini’s suggestion of “sensitive information”. All references to “valuable information” should be taken out of the regulations clauses. She asked Members to consider where there would be objections to this, in principle.

The Chairperson suggested that Members should make proposals, if they wished, in writing, and could also ask the State Law Advisors to assist with drafting style, so that this matter could be finalised the following week. The principle of whether the Agency should play a role was not entirely agreed, and if it was not to play a role, then obviously the responsibilities set out would be limited. This clause went to the root of the argument that valuable information should be excluded from the Bill. He also asked that Members should perhaps expand on their views that valuable information should not attract oversight.

Mr Landers noted that a number of issues had been brought to the fore now that the “clean” copy of the Bill had been prepared. He proposed that this meeting should be adjourned at this point, that the meeting on the following day be cancelled and that Members could address all the issues over the weekend and consult with their parties, ready to proceed on Monday morning.

This proposal was favourably received by the opposition parties.

The Chairperson reminded Members to formulate the necessary drafts and circulate them, as well as to give consideration to the number of matters that remained flagged for further attention.

The meeting was adjourned, to Monday 15 August.