Protection of State Information Bill: Working Document 19 and Committee proposals 19

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

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

The State Law Advisor took Members through the latest version of the Working Document and Committee Proposals document. She pointed out amendments relating to the deletion of the national declassification database (clause 37) and consequential amendments. The amendments to clauses 34(6) and (7) and clause 35(4) were also noted. Some aspects were flagged for further discussion but the principle was accepted. Members also corrected clause 41, noting that the reference to minimum sentences had to be deleted from the subclauses.

Members discussed the definition of “national security” and agreed to insert the phrase excluding ‘lawful political activity, advocacy, protest or dissent’ from the ambit of the clause. The DA made proposals, which were to be inserted into the next Committee Proposal document, in relation to paragraphs (b)(i), (iv) and (v),and to delete references to economic matters and development. The IFP wanted to list all matters under the general ambit of “threat” and to qualify that as “clear and present threat”, and stated that anything going beyond clauses 13 and 15 should not be included, so a full motivation was requested. This definition would remain flagged.

Members briefly discussed clause 3, dealing with the application of the Act, and suggested a grammatical improvement. They also agreed that the clause should be worded to allow a portion of a department to apply to be included, and that the addition of “the prescribed manner” would allow the finer details to be inserted in regulations. This clause would be considered on the following day. The DA asked whether it would not make sense to reinsert the reference to Chapter 2 of the Promotion of Access to Information Act (PAIA) back into clause 33A but it was explained that this posed a risk of attempting to dictate to the Courts how they should operate.

It was agreed that subclause 34(6) would be deleted. Another opinion had been sought on the concept of “prejudice to the national security of the Republic”, and the Parliamentary Legal Advisors noted that although the concept of “prejudice” had been dealt with and was clearly understood by the Courts, it was likely that it must be considered separately and within context, and, in the time available, no specific consideration of prejudice to national security had been found. The Legal Advisors suggested, and the Committee agreed, to amplify the clause so that the phrase specified “prejudice to the national security”. The remainder of the clause remained flagged for discussion.

The Committee asked the state law advisors to consider clauses 46 and 19(3), which related to documentation before courts. Members cautioned that the Bill should not attempt to prescribe what the courts should do. In addition, the State Law Advisors were asked to check the wording of the objects clause to ensure that it was consistent, and noted that a reference to “designated information” seemed to be at odds with the current wording.

The ANC tabled its proposal for the Preamble. The DA suggested that the grammar needed to be adjusted, and also suggested a qualifier, to the effect that restrictions may be imposed when necessary to national security. Members discussed the status of a Preamble. This would be discussed again on the following day. Members disagreed on the necessity to have clause 52, with the DA questioning how this clause aligned with clauses in the Intelligence Services Act, and the DA and IFP were insistent that it was incorrect to attempt to restrict all information about what the State Security Agency was doing, citing known problems in intelligence services in the past, and stating that the risk of corruption and malfeasance posed enormous danger if it happened within intelligence services. The ANC was of the view that there were sufficient checks and balances. The clause remained flagged for further debate. The IFP then suggested a correction to clause 49, stating that the clause, as currently worded, referred to “state information” whereas he believed it should refer to “intelligence information”. The State Law Advisors were asked to consider the wording.

Meeting report

Protection of State information Bill (the Bill): Working Document 19
Ms Carin Booyse, Deputy Chief State Law Advisor, Office of the Chief State Law Advisor, tabled and took Members through Working Document 19, detailing the latest changes to the Protection of State Information Bill (the Bill), as agreed to by the Committee. Consequential amendments flowing from the removal of the clause on the national declassification database were found on pages 19, 21 (clause 2(j)), the removal of clause 31 on page 48, and clause 34(2) on page 57.

Ms M Smuts (DA) said that Members would need to discuss whether the clauses must be changed entirely.

The Chairperson asked the State Law Advisors (SLAs) to re-insert the words “are considered to be automatically declassified” for the moment.

Ms Booyse continued that there were also amendments to clauses 34(6) and (7), and to clause 35(4), on page 58 of the Working Document.

Dr M Oriani-Ambrosini (IFP) suggested that clause 34(6) should also be flagged for further discussion, in line with the earlier suggestion of Ms Smuts.

Ms Booyse noted that the whole of clause 37, relating to the establishment of the national declassification database, would be removed. There was also a need to remove the reference in clause 58(5) on page 86, to the database.

Members agreed to the deletions, except those that were still flagged for further discussion.

Mr S Swart (ACDP) noted an omission from page 65. He pointed out that, as presently worded, this clause referred to minimum sentences. If that was to remain, then the wording of the previous clause 1(6), as it currently appeared in clause 40(4), should be repeated here, as a new clause 41(4), to provide for circumstances where there were compelling reasons not to apply the minimum sentence.

The Chairperson was not sure that this was an omission or a mistake. He had understood that the Committee had only wanted to retain minimum sentences for espionage.

Mr Swart suggested that either the minimum sentences must be removed altogether from clause 41, or the reference to substantial and compelling reasons must be inserted.

Mr L Landers (ANC) agreed.

The Chairperson asked Members again to confirm whether they wanted minimum sentences to appear in this clause. This clause had been added when the ANC said that it wanted to criminalise the receiving of classified information.

Mr Landers said that he could not recall exactly what the decision on that was.

Ms Booyse confirmed that the SLAs had been asked to create a clause setting out an offence, for a receiver of information, that was substantially in line with the clause that would apply to the person handing over the information unlawfully.

Mr Swart suggested, and Mr Landers agreed, that the minimum sentences should be removed. This would be done by removing the words “not less than” from each of the subclauses 41(1) to (3). If this was done, then there was no need to replicate the wording of clause 40(4).

The Chairperson instructed the SLAs to effect this change.

Committee Proposals Document 19
Ms Booyse then tabled and took Members through the Committee Proposals Document 19, noting the changes that had been effected since the previous day. This document set out matters still requiring debate or discussion by the Committee.

National Security definition
Ms Booyse note that the first changes were reflected in clause 1(iv) and (vii), as well as (c), in the definition of national security. However, she asked for further guidance from the Committee on whether the Committee had decided to include the words “but does not include lawful political activity advocacy protest or dissent” should be inserted.

Ms Smuts agreed that this phrase should be inserted at the end of subparagraph (c).

The Chairperson noted that this came from the DA proposal, which was why he had asked for that proposal (listed as “Further Proposal” on page 2) to be included.

Ms Smuts said that, for the moment, the DA was happy to include these words into the DA proposal, but she gave notice that the DA still wished to argue on other points in their proposal.

Mr Landers agreed that the ANC was prepared to include this phrase in (c), but considered that, having done so, the definition was complete, and he stressed that this was not to be seen as a trade-off, as this phrase was included on its merits.

Mr D Maynier (DA) said that on the previous evening, it was agreed that Members could make further proposals on the definition of “national security”. It was agreed to add a new subclause.

Mr Landers pointed out that the ANC had just agreed to add this in.

Mr Maynier continued that the other points of difference were in relation to the ANC’s paragraph (b)(i), dealing with hostile acts of foreign intervention, the ANC’s proposal (b)(iv) relating to exposure of a state security matter, and (b)(v), relating to exposure of economic, scientific or technological secrets, and he referred to the further proposal, on which he wished to argue.

Dr Oriani-Ambrosini said that he personally was not in agreement on the proposals about the state security matter, although he would not repeat comments made earlier. He also suggested that the grammar could be improved, by putting a colon after “the threat of” in (a) and then moving the words “use of force” to the beginning of paragraph (b), so that everything listed in paragraph (b) was included as a “threat”. He also believed that the words “clear and present” should be used to qualify the “threat”, bringing this closer to an objective standard, and avoid against every threat, however speculative, being taken very seriously.

Mr Maynier then expanded on his points. In relation to (b)(i), there had been a discussion on the concept of hostile acts of foreign intervention. Mr Landers had argued that this would include war. Although the DA disagreed with this, it was clear that the ANC was intent on maintaining its position, and so, as a compromise, the DA suggested that the words “directed at overthrowing the constitutional system of government in the republic” should be included. A similar qualifying phrase should also be inserted into subclause (iv). Ideally the DA would prefer that to be deleted, but proposed that, given the ANC’s determination to include it, that it must similarly be qualified. Finally, in relation to (v), the DA believed, for the same reasons as argued by Mr Swart on the previous day, that this paragraph was overly broad. The DA therefore proposed deleting the reference to “economic” and rewording this paragraph as “the exposure of scientific or technological secrets vital to the Republic”. This was similar to what had originally been included in clause 17(1)(j).

The Chairperson commented that the two proposals for paragraph (iv) did not carry the same meaning. The ANC proposed wording of “to undermine the constitutional state in the Republic” whereas the DA proposed using “overthrowing the constitutional system of government in the Republic”. There was a substantial difference between these concepts.

Mr Landers indicated that he did not agree either with the proposals of the IFP or the DA.

Dr Oriani-Ambrosini said that while he recognised the rights conferred by the mandate of the electorate to the ruling party, and also agreed that Mr Landers was perfectly within his rights to say that he did not like these revisions, he would like this to be motivated. One issue had been raised in respect of state security matters, to the effect that if a State security matter fell under clauses 13 and 15, it could be classified. For this reason he did not think that this definition and subject matter served a purpose. Anything that went beyond what was contained in clauses 13 and 15 should not be classified, but the effect of this definition could empower the state security institutions to “close” anything relating to them, even if this was their lunch menu. This had already been raised as a contradiction. Once again, he requested a full motivation and an indication why the ANC did not agree with the rationale put forward by the other parties.

Mr Maynier said the ANC did not appear to have given much consideration to the proposals. He also asked why these proposals did not find favour, particularly paragraph (iv). He could not understand the ANC’s reasoning on state security matters. He noted that similar wording to what was contained in the ANC proposal had been introduced in 1969 by the Bureau of State Security (BOSS), and was then used by the apartheid government to prevent the media from publishing the names of people detained without trial, so it was, to his mind, a dangerous precedent.

Mr Landers was offended by the suggestion that he had not given consideration to the matter, pointing out that the opposition parties could have no idea how long he had spent on the matter. He pointed out that the words “exposure of a state security matter to undermine the constitutional state of the Republic” had not been used by BOSS. He also noted that there did not appear to be general support from other parties for the suggestions of Dr Oriani-Ambrosini on the words “clear and present threat”.

Mr Maynier hastened to say that he had no intention to impugn the integrity of Mr Landers, but pointed out that since he had only provided this wording to the State Law Advisors between one and three hours earlier, at best, it was unlikely that the whole ANC caucus could have considered it in detail. He said that the wording of (iv) was similar to that in the General Laws Amendment Act in 1969.|

The Chairperson agreed that the DA’s written proposals had only been submitted that afternoon, but pointed out that the proposals had been read out, orally, on the previous day, in response to Mr Landers’ amendments in (iv). Ms Smuts had commented at the time that the parties seemed very close to reaching agreement. Mr Landers and the ANC clearly had had notice of this proposal on the previous afternoon.

Dr Oriani-Ambrosini said that nobody wished to question the integrity and commitment of Mr Landers, who had proved his dedication and hard work. All members were trying to do the best that they could. He said that his proposal on the “clear and present threat” was presented on his own behalf, and had hoped it would be supported on its merits. All opposition parties shared concerns about state security matters. His question on the rationale had not been answered to answered to his satisfaction, and he felt that is was the responsibility of the majority party to explain their position although he would accept that perhaps this was not the right time to deal with this.

Ms A van Wyk (ANC) agreed with the Chairperson that the DA proposal had been both heard and discussed on the previous evening.

Mr A Maziya (ANC) said that the ANC should not to be forced to argue matters with which it did not agree. He suggested that his colleagues should accept that it was the right of parties to differ.

The Chairperson ruled that this point should not be taken further, as the points had been discussed. He instructed the State Law Advisors to add in the wording contained in the footnote on page 2 to the Working Document, as a new subclause (d). He reminded Members that several months ago, they had virtually agreed on the definition, save for comments about information peddlers. He accepted that matters had changed. For the moment, he suggested that this definition should remain flagged.

Mr Swart agreed that Members had been close to reaching an agreement, but subsequently paragraphs (iv) and (v) were added in. Without wanting to labour the debate, he asked that, for consistency, the same words should be used as appeared in the definition of hostile activity, namely “the constitutional order of the Republic” should be maintained, although Members could still discuss whether they wanted to use “change” or “undermine” or a similar verb. He also reminded Members that on the previous day he had questioned whether a hostile activity (which was defined) was the same as a “hostile act”. He agreed that there was a difference of emphasis between the notions of “undermine” and “overthrow” but he agreed that Members should not attempt to take this further at this stage, but consider it further.

Clause 3: Application of the Act
Ms Booyse noted that the words discussed on the previous day had been inserted. There was also a proposal for clause (b) from the DA, which was to include the words: “and which can demonstrate that the information to be classified relates directly to national security”.

Ms Smuts suggested a grammatical improvement, by moving the words “to have those provisions apply to it” to the end of the sentence.

Mr Landers noted the ANC’s agreement with the application clause set out in the main body of the Working Document. He did, however, want to suggest another addition. Using the Department of Science and Technology as a hypothetical example, he noted that it was possible that only one research unit would want to classify information, and not the whole organ of State. For this reason, he asked that wording be included that would allow only part of an organ of State to opt in to the Bill.

Ms Smuts supported that suggestion.

Dr Oriani-Ambrosini suggested that the former wording of clause 3(b) needed to be brought back in.

Mr Landers and Ms Smuts did not agree with this, as that wording had not made much sense, and they said that there must be some way to formulate the concept better.

Dr Oriani-Ambrosini suggested that this clause should state that “a portion of an organ of State” could apply, although this did raised questions of how it would make application, and the need for the Minister to determine that only that portion could classify.

Mr Swart suggested that if Dr Oriani-Ambrosini’s suggestion was adopted, and the words “in the prescribed manner” were also inserted, then it would be possible to leave the finer details to be set out in the regulations.

Mr Swart also asked if the ANC accepted the second part of the proposal

Mr Landers said that he would prefer to consider the suggestion and respond on the following day, lest he be accused of not giving sufficient time to the proposal.

Ms Smuts said that she would be happy to hear Mr Landers’ response when this was convenient. She also said that it was possible that portions of organs of State might not be in a position to inform the Minister of what exactly would need to be classified, although they should be able to indicate the kind of matters that were being researched. For this reason, the Committee may wish to amplify the reference to “on good cause shown”, to make it clear that the Minister must be satisfied that the material needed to be classified, and that the organ of state would comply with the conditions set out in the Bill. She said she would welcome any counter-proposals on this.

Mr Landers said that the ANC’s proposal was already set out.

The Chairperson said that he was not sure whether the clause needed to say any more than that the organ of state (or a portion) would make application to be included in the Bill when there was information that it needed to classify. He agreed that the details could be left to a later stage. He asked the SLAs to consider appropriate wording to give effect to Mr Landers’ and Mr Swart’s suggestions about a unit of an organ of state.

Clause 33A
Ms Booyse indicated that this clause provided that a person could apply to Court after exhausting internal remedies. The words “in the manner provided for in Chapter 2 of part 4 of the Promotion of Access to Information Act” (PAIA) had been excluded.

Ms Smuts asked if the ANC would not consider re-inserting those words.

Mr Landers clarified that the reasons why they had been excluded was that this possibly offended against the principle that the Legislature should not be attempting to dictate to the Courts how they should act. That was, in effect, what Chapter 2 of PAIA was doing, and if this was included, there was a risk that the constitutionality of the Bill could be challenged. The wording now reflected in the Committee Proposal document was not removing anything from PAIA and he said that there was nothing objectionable about the wording.

Mr Swart asked if the appeal would lie to the head of the organ of State.
Mr Landers said that the appeal was to the “relevant Minister”, so this was the internal appeal mechanism.

Ms Smuts asked Members to consider whether clause 46 should be included. She had suggested it originally, but would discuss this later.

The Chairperson asked that this clause be renumbered.

Clause 34(2)
Ms Booyse indicated that on page 11, subclause 34(2) referred to “section 18” (as set out on page 42 of the Working Document), and this dealt with information that could not remain classified for more than twenty years. That was why the reference had been inserted. There was also a specific reference that records of over twenty years “must be declassified in accordance with section 17”.

The Chairperson reminded Members that this clause dealt with transfer of records to National Archives. He enquired what the footnote numbering referred to, as this was not set out in the Committee Proposal document.

Ms Booyse indicated that the explanation of section 18 was originally to have been included in this document, but she had instead read it out to the Committee a few minutes ago.

Clause 34(6)
Ms Booyse reminded Members that this subclause was to be deleted.

Members had no objections.

Clause 42: hostile activity offences
Ms Booyse noted that the proposals for this clause were reflected on pages 14 and 15 of the Committee Proposal document. The essential aspects related to “or prejudice the Republic in its national security”.

The Chairperson thought that it was premature to discuss this before the opinion of the Parliamentary Legal Advisors was tabled. Mr Maynier had indicated, on the previous Friday, that he was not entirely happy with the opinion of the State Law Advisors, because they had only examined “prejudice” and not “prejudice to national security”. He confirmed that Mr Maynier’s e-mail detailing the scope of his query, which included a specific reference to clause 42, had been forwarded to the Parliamentary Legal Advisors.

Mr Ntuthuzelo Vanara, Senior Parliamentary Legal Adviser, said that he would not read out the entire document, but would highlight the important aspects. He had been requested to advise whether the words “prejudice to the Republic”, as used in clause 42, were vague and offended against the rule of law principle that matters must be clearly defined. The principle of legality embraced different aspects of the offences. He noted, on page 2 of his opinion that Ngcobo J (as he then was), in the matter of Affordable Medicines Trust v Minister of Health had said that the ultimate question was whether the wording used was properly constituted and indicated with reasonable certainty what was required.

He had looked at the element of ‘prejudice to the Republic” and concluded although the Working Doc defined hostile activity as well as a non-state actor, “prejudice” itself was not defined in the Bill and it probably went further than hostile activity He had examined different case law dealing with “prejudice” but those case were confined to fraud and contractual relationships, not in the specific context of security matters. The judgments in those areas may not necessarily be authoritative in a different context. Prejudice would be dependent on the circumstances of each case. For that reason, Mr Vanara said that he was not in a position to say, with absolute certainty, that the court would approach security matters in the same way as it would other matters. He believed that greater clarity and certainty would be achieved by limiting this or qualifying it with a specific references or tabulating specific instances that would qualify as “prejudice to the Republic”.

Mr Swart said that he had earlier indicated that “prejudice” probably did not need to be defined, but he suggested that it would be useful to introduce a limitation by adding the words “to national security”. Mr Vanara’s points seemed to confirm this view. He also stated that it was necessary to ensure that “prejudice” was noted consistently.
Mr Maynier said that the DA, in its earlier submissions had said in respect of hostile activity that it should either be defined as in the Canadian legislation, or that the phrase should be altered to read “prejudice the national security of the Republic”. The legal opinion from Mr Vanara seemed to support his position. He therefore repeated these two proposals and pointed out that there were similar words in the Working Document.

Mr Landers indicated that the ANC agreed with the proposal by Mr Swart.

Ms Smuts said that this would take care of a large problem in the Bill and inclusion of the phrase “prejudice to the national security of the Republic” would remove the danger of journalists of being imprisoned for twenty years. She was relieved to note the consensus, and thanked Mr Vanara for his opinion.

Mr Landers also welcomed and thanked the Parliamentary Legal Advisors for the opinion. He agreed that “prejudice to the national security of the Republic” should be used, and he could not find any grounds for finding this inconsistent with the Constitution. He pointed out that in the Canadian legislation there were long lists of criteria. He also said that notwithstanding demand for a definition of “prejudice“, the courts did clearly know what that encompassed.

Ms Smuts thought that perhaps Mr Landers may have misread what Mr Vanara’s opinion said. The legal opinion actually said that, in the short time available, the legal advisors had not been able to find specific reference to this.

The Chairperson asked that the phrase “or prejudice the national security of the Republic” should then be inserted into the next Working Document.

Constitutionality aspects: Clause 46
Mr Landers said that the Committee was constantly concerned with whether the Bill was constitutional. He asked Members to bear in mind that sometimes a judge could make comments that were not necessarily to be read as part of the judgment. Clause 46 dealt with protection of state information before courts. The courts had complained if there was a tendency for the legislature to dictate to the court what it should do, which was contrary to the idea of court independence. He asked if a legal opinion on clause 46, dealing with protection of state information before the courts, could be obtained,.

Ms Smuts agreed with this and repeated her question whether other Members were convinced, notwithstanding what she herself had said, if this clause needed to be included in the Bill, or if the inherent powers of the court would enable it to deal with any classified documents.

Mr Swart supported the referral to the SLAs and also asked if the law advisors could also look at clause 19(3) (on page 45 of the Working Draft) in relation to documents before a court. The status of classified information must be reviewed when there was a proposal to use that classified information.

Ms Smuts said that if there was any implication that documents could be classified in order to withhold information from a court, then it would be unacceptable.

The Chairperson then formally asked the State Law Advisors (who should consult with the Parliamentary Law Advisors if necessary) to look at clause 46, and also consider whether it was necessary to have this clause at all, or whether there was a need to retain or delete the subclauses. He also asked if the Bill contained any other conflict, in relation to references to the Court. In particular, he asked the SLAs to focus on the last subclause, which required that a minimum of three judges should decide upon matters.

Ms Smuts thought that this was certainly something that the Bill should not attempt to prescribe.

Mr Swart agreed that it would be difficult to bring an urgent application before a full Bench, which would appear to be necessary if the Bill remained worded as “at any court application”.

Objects clause: Clause 2
Mr Landers asked if the SLAs could look at the Objects Clause.

The Chairperson confirmed that this would be desirable and formally asked the SLAs to determine whether the clause needed to be amended in any way. Obvious indications might be the references to the declassification database, but it may be necessary also to insert references to the reviewing panel.

Ms Smuts suggested that perhaps the original subclause (j), as it appeared in the original Bill, which made reference to harmonising this Act with the Protection of Information Act and the National Archives Act, should be reinserted. She also noted the current clauses 2(f) and 2(g) made reference to “designated information”, which seemed to be wording taken from the previous versions of the Bill, and should probably be deleted.

The Chairperson reminded Members that the reference to “designated information” was deleted, at about the stage of Working Document 4, but it seemed to have worked its way back into the document.

Ms Smuts said that she was also not sure about clauses 2(c) and 2(f). Clause 2(c) referred to the way in which information may be “handled”, and she was not sure what this meant, other than perhaps having the Minister prescribe matters. The categories referred to in 2(f) should expressly reflect what survived from the original clause 7.

Mr Landers tabled the ANC’s draft of the Preamble.

Ms Smuts said that this seemed broadly acceptable, but wanted to make a couple of suggestions. Firstly, the grammar should be corrected, to read “right of access to”. Secondly, in paragraph 3, she suggested that the phrase “to national security” should be inserted, after the words “may be restricted when necessary”.

Ms Smuts asked whether a Preamble to an Act had any legal force and effect, apart from the Preamble to the Constitution, which did have a special status.

The Chairperson clarified that several principles applied to interpretation. Generally, a person interpreting an Act must look firstly to the specific definitions, failing which the dictionary meanings and general use of language would be used. If that was not clear, then other aspects could be used for interpretive purposes, including the Interpretation Act. It was possible that what was said in a Preamble could have some persuasive powers. The Preamble of the Constitution stated principles, but the Preamble to most Acts tended to summarise what the Act contained. The Preamble was essentially meant to help the reader understand the historical and political issues behind the Bill.

Clause 52
The Chairperson noted that this clause appeared on page 77 of the Working Document, and dealt with prohibition of disclosure of a state security matter. There had been some minor adjustments, agreed to by Members, including the addition of “state” before the word “information”. The minimum sentence had been removed. “State security matter” was defined in the Bill. At the time that the discussions on this clause were held, there were certain other concerns raised, and these would still need a decision.

Ms Smuts enquired how the clause in this Bill would align with the offence for revealing classified information that was already set out in the Intelligence Services Act. She noted that it was not correct, in principle, to try to draw a “veil of secrecy” over absolutely everything that the State Security Agency (the Agency) did, including its relationships with other entities. This was even more so when it was a known fact that there were problems within the intelligence services themselves. The DA would like to see this whole clause deleted.
Mr M Sonto (ANC) said that if there was no offence for unlawful possession or disclosure of classified information, then there would be no point in having the Bill at all. The State must be serious about intelligence matters.

Ms Smuts said that there had been problems in the intelligence services. Because human beings were involved, there was always a risk of corruption, and she pointed out this was even more serious when intelligence services were involved, and for this reason alone they should not be able to hide behind the veil of secrecy. People in these positions who abused trust were even more dangerous, and for that reason anyone who exposed any abuse should not be subject to criminal sanction.

Mr Landers said that it would be ludicrous to suggest that the veil of secrecy should be lifted from an intelligence service, because the very nature of its services meant that it operated in secret. He stressed that there were already processes in place within that service to deal with any corrupt activities. He asked Members to read the relevant legislation and regulations. Several other checks and balances had also been put in place over the years, based on experiences and good practice in other jurisdictions. One was the Office of the Inspector General, who was required by law to ensure that there was compliance with the Intelligence Services Act and Constitution, and to provide certificates annually in respect of compliance. He felt that the DA had not sufficiently motivated why the veil of secrecy should be lifted, and whose objectives would be served by doing so. This was a standard clause in other countries’ legislation.

Dr Oriani-Ambrosini said that this begged the question of what exactly was being done. He pointed out that not everything could be done in secret. For instance, the Agency would be involved in the drawing of national frameworks for the Prevention and Combating of Trafficking in Persons Bill, and this work could not be done in secret. Similarly it might cooperate with the Department of Home Affairs on regulations around immigration. Therefore the Committee must give careful consideration as to what exactly could legitimately be done in secret. The answer to that was surely contained in clauses 13 and 15, so this was already catered for elsewhere in the Bill. However, this clause was going far beyond that – to other activities that did not need to be hidden. If they were not activities that were classified, then the presumption was that they must be open and transparent. The range of the activities that the clause seemed to envisage was anywhere between “not necessary” and “potentially damaging”. He pointed out that the greatest threat to the power of the ruling party came not from the electorate, but from those who used State functions for their own political purposes. He knew that a lot had been said on this, and he suggested that Members must reflect on the comments.

Ms Smuts agreed with Dr Oriani-Ambrosini. She noted that it was police intelligence who intercepted conversations in the prosecutorial authority, and had leaked tapes of conversations dealt with in the “Browse Mole” investigation, and it was when checks and balances were themselves operating in secret that the problems occurred. She was not saying that she had no confidence in the system, but reiterated that it was not possible to keep everything that was dealt with by the Agency as a secret, including its relationships with other bodies. At the very minimum, then a provision should be written for intelligence operatives in particular, so that they could make disclosure up the hierarchical line, with the Joint Standing Committee on Intelligence (JSCI) at the top of that structure. Although she accepted that the Canadian Senate recommendation to this effect was not accepted, she still felt that it made sense. It would defeat the whole purpose of whistle blowing if avenues for disclosure of malfeasance were closed.

The Chairperson said that this discussion was tending towards discussion of policy, and although this was indirectly linked to the legislation, this line of debate was likely to cause more confusion.

Mr Landers wanted to address the point raised by Dr Oriani-Ambrosini, who had suggested that the Agency should not be vetting applications for permanent residence. He pointed out that section 119(5) of the Constitution said that security services must act, teach and require their members to act in accordance with the Constitution and law, including customary and international law. Section 119(6) said that no member of any security service may obey a manifestly illegal order.

Ms Smuts thought this did not take care of the problem

Mr Landers said that it did, but that some Members were ignorant of other legislation. Dr Oriani-Ambrosini did not appear to know what happened in the USA in regard to immigration.

Dr Oriani-Ambrosini asked that Members should confine themselves to addressing the issues, rather than launching attacks on what people had said. These were very important issues. When he had practised immigration law in the USA, there was no Central Intelligence Agency (CIA) involvement in immigration, although he could not say what the situation was now. The only correct way to withhold rights and privileges was in respect of something that was proven in evidence, not matters that did not form part of the record. The Committee could grant South Africa the privilege of enjoying more freedom than the USA did at this point.

Conflict of laws provision: Clause 1(3) on page 19 of Committee Proposal document
The Chairperson recorded that this clause had been agreed to and asked that it be moved to the next Working Document.

Clause 49
Dr Oriani-Ambrosini wanted to suggest a correction to clause 49, on page 75 of the Working Document. He had noted that the Committee surely did not intend that the giving of any type of incorrect information to the police should be criminalised by the Bill. He had suggested that the wording be qualified by inserting “intelligence” information. However, he noted that the wording of “state” information appeared. There was no definition of “state information” although there was a definition of “intelligence information”. This clause did not deal with information that belonged to the state, but information that the state wished to have. For this reason, he suggested again that the phrase “intelligence” information should be used.

Ms Smuts noted that this sounded reasonable. It was presumably intended to deal also with intelligence operatives.

The Chairperson was not sure whether there was a concept of “intelligence information”, although there was a concept of “intelligence”.

Ms Smuts asked what misinformation by an intelligence operative would be called, and raised questions about the Browse Mole report.

Mr Landers said that Members were constrained in speaking further of this.

The meeting was adjourned to the following day.


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