Protection of State Information Bill: Committee Proposals on Working Document 18

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

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

The meeting began on the topic of the calendar ahead, as it was noted that Parliament might be rising on 15 September. The Committee discussed if they could aim to report the Bill by that date, as well as the procedures they would take up for the printing and revising of the Bill before it was approved by the Committee. The State Law Advisor then presented Working Document 18, noting that proposed amendments had been taken out and put in a separate document title Committee Proposals on Working Document 18. She proceeded to discuss section 80 of the Promotion of Access to Information Act (PAIA) and its relation to the Independent Newspapers case ruling.

The Committee responded to the presentation and moved to consider proposed clause 33A, dealing with appeal to courts. The ANC suggested a shortening of the clause, which eliminated its cross reference to PAIA. The DA argued against this and further suggested that the default status of information should be open rather than closed. The IFP also iterated that the cross reference should be kept in the proposed clause. The ACDP noted support for this as well, but proposed an alternate wording that was eventually accepted by the ANC for consideration.

The Committee next deliberated on the application of the Bill, specifically on how it affected organs of state that chose to opt-in. The ANC disagreed with the DA’s suggestion that these bodies should report each instance of classification not only in the Gazette, but to the Classification Review Panel as well. The DA and ACDP made suggestions about narrowing the opt-in clause’s scope, with the ACDP proposing that the mechanism should require application to be “on good cause shown” and tie it to national security. The ANC accepted this proposal for drafting.

Issues of declassification were discussed, with the ANC raising concern about automatic declassification occurring after a certain period of time elapsed. The IFP was more concerned with what happened to such information once it reached the database. The ANC also proposed deleting proposed clause 21 dealing with status review.

The IFP noted concerns about status review being eliminated, particularly relating the issue to provisions in PAIA. The Committee felt that these concerns were due to a misunderstanding, noting that the sections in PAIA which were being referred were irrelevant to this Bill, and tried to clarify the situation. 

The ANC then presented a definition for national security, which they had decided should be included in the Bill. The DA noted its pleasure that this was agreed to, but was not satisfied with the definition itself. In particular, they wanted an insertion of a protection for certain lawful activities and suggested that “state security matters” be removed from the Bill altogether, noting the term’s connection to the apartheid government. The ACDP noted progress on the definition but raised its own concern over wording in regard to economic information. The DA further stated that it did not understand what the term “hostile acts of foreign intervention” implied, to which the ANC felt it was clear and noted that this had not been an issue during previous deliberations.
In the evening session, Members continued to discuss the Committee Proposals document. Both the ANC and DA had submitted proposals for a definition of “national security”. The ANC agreed that there was merit in the DA’s suggestion to exclude lawful political activity, advocacy, protest or dissent from being considered a threat to national security. The ANC proposals under subparagraphs (iv) and (v) were not quite the same as the DA proposals, which followed the language of PAIA. It was agreed that in the next document, both the proposals should be inserted as options. Members then discussed clause 3, relating to the application of the Bill, and pointed out that now that the scope of the Bill had been reduced, many of the concerns expressed during the public hearings were taken care of. The DA suggested that “and which can demonstrate that the information to be classified relates directly to the national security” to be added at the end of clause (b), so that organs of state wishing to opt in would have to justify their request. This clause would be further discussed, with the two options appearing alongside each other.

Members then considered the wording of the clause on hostile activities. The IFP believed that there was no sense in wording the clause with an “or”, saying that any hostile activity necessarily would prejudice the Republic, and the ANC said that if the word “or” was kept in, then at the least it should be qualified with specific reference to “prejudice the national security of the Republic”. A legal opinion had been requested on whether prejudice to the Republic had been interpreted and pronounced upon by the courts, and it was agreed that this clause would remain flagged for further debate. The ANC said that it had also received, but wanted time to consider, a legal opinion on the words “any other law” in clause 47. Members then noted that discussion was still needed on the Preamble, conflict of laws, and clause 52.

All parties agreed, following a presentation given to the Committee, that the references to a national declassification database should be removed from the Bill as this would be very costly and would duplicate what the National Archives already had in place. The DA suggested that there might be merit in requiring private archives or repositories to keep a list, but the ANC believed that a list was essentially a database, whilst the ACDP pointed out that the situation would seem to be covered in PAIA. The State Law Advisors were asked to check on the position and to advise of any consequential and substantive amendments that would be needed to effect this deletion. Members also briefly discussed the provisions of clause 35(4), read with clause 18 and 34(6), and agreed that they needed to consider the situation posed by clause 41(3) of PAIA, which set out a slightly different procedure from declassification after twenty years, where a security service official might simply have failed to keep abreast of what had to be done, and would have to release a record that should in fact remain classified. The State Law Advisors were asked to check these references and give feedback to the Committee.

Meeting report

Committee Procedures
The Chairperson opened the meeting by noting an apology from Mr L Landers (ANC), who would be arriving slightly late. He stated that Parliament may be rising on 15 September, and that the Committee had given itself until 23 September to finalise its proceedings. He then went over specifics regarding the printing of the Bill. He said that once the Bill was finalised for printing, it should be returned to the Committee to check it over, and if anything was noted to be incorrect, it could then be reprinted to capture the changes. 

Mr S Swart (ACDP) asked if it was the Committee’s intention to finalise the Bill in Parliament by 15 September and to have it debated in the House or to report the Bill to the House before Parliament rises.

The Chairperson remarked that checking the printed Bill was not an overnight process.

Dr M Oriani-Ambrosini (IFP) said he understood that there had to be a formal approval process for the Bill checking each clause and adopting or rejecting the proposed amendments. He noted that in such a process there was normally a “B” Bill and a “C” Bill, and suggested that in this case the Committee could use a “D” Bill to do the approval process.

Ms M Smuts (DA) said the Committee could decide this when they reached that point, and stated that it was obvious that they needed at least a “B” Bill. She further stated that they had to report the Bill by 15 September.

The Chairperson commented on the 19 August proceedings and said that he had tried to get in contact with Mr Vanara, Parliamentary Legal Advisor, but was unable to do so until the morning before this day’s meeting. He said a presentation by Mr Vanara would be made available by the next day’s meeting. He noted the issue raised by Mr D Maynier (DA) about the wording “prejudice to the Republic” in the hostile activity offence.

Mr Maynier responded about his concern over the offence provision’s phrasing.

The Chairperson instructed the Committee to withhold debate on the matter until they heard from Mr Vanara. He then asked the State Law Advisor to present the new documents.

Presentation by the State Law Advisor and discussion on section 80 of PAIA
Ms Carin Booyse, State Law Advisor, presented Working Document 18 and the Committee Proposals for Working Document 18. She stated that no amendments were made except for taking out proposals that were not to be included in the working document, as decided by the Committee in the previous meeting. These issues would be returned to for further deliberations and were noted in the Committee Proposals. She noted that section 80 of PAIA was looked at, particularly in relation to the Independent Newspapers case. The Committee Proposals document was distributed, after which Ms Booyse resumed her presentation. She discussed how the ruling in Independent Newspapers interacted with clause 80(2) of PAIA. She articulated the case’s background, stating that the Independent Newspapers group sought an order to compel disclosure of certain portions of a record of proceedings from the Constitutional Court. She noted that the state was represented in the case by the Minister of Intelligence, who objected to disclosure on the basis that it would compromise national security. She stated the case’s ruling referred to section 173 of the Constitution, which grants the courts autonomy to regulate their affairs. On section 80 of PAIA, she said the court was to examine all records from a public or private body in appeals, except under 80(2), which restricted access to terms of PAIA. This presented a conflict in the autonomy of the courts, and the Committee proceeded to remark on the matter.

The Chairperson that it seemed that the way the Bill dealt with the courts duplicated PAIA, and he asked the Committee if they were contradicting themselves on this matter.

Mr Sisa Makabeni, State Law Advisor, said the Bill’s provisions related to the courts dealt with court actions in general, as opposed to section 80 of PAIA, which related specifically to the application of PAIA.

The Chairperson noted that the point of looking at section 80 of PAIA was to check if it had been altered to adapt to this Bill.

Ms Smuts said the difficulty with this matter was that clause 80(2) of PAIA was written in a way that presumptively told the courts not to disclose information. She noted that the Bill’s provisions would be dealing with applications for classified information, and stated that this clause in PAIA should be amended itself, given not only the Independent Newspapers case judgment, but also the purpose of this Bill. She argued that disclosure must be left to the courts’ discretion and that the default status of records was open. She said section 80 of PAIA stood in direct contradiction with the Independent Newspapers ruling, and that the Committee was bound by that ruling with regard to this Bill.

Dr Oriani-Ambrosini articulated that there are constitutional rights, which can be expanded on but not detracted, statutory law, which can be changed, and court proceedings, which are an area of autonomy under the Constitution. The critical part of PAIA was 80(1), which stipulated that nothing can be withheld from the court, classified or not. He referred to the original clause 46 (new 55) in the Working Document, which dealt with the protection of state information before courts, and said that it was different from PAIA in that it was more limited. Section 46 did not call for everything to be given to the courts, and it was applicable only to criminal proceedings. Only information that was strictly necessary to maintain the classification in terms of this Bill would be required by the court. The issue that the Committee was struggling with was to find a balance between what is absurd and what is constitutional for this provision. He suggested a closer reading of clause 46, saying the Committee needed to look beyond solely criminal cases.

Appeal procedures and consideration of proposed clause 33A
The Chairperson referred to page 11 of the Committee Proposal, where a proposed clause (33A) for an appeal procedure to the court was articulated. Something could not simply be incorporated without considering PAIA, which was the basis for asking the State Law Advisor to look at it. He then referred to page 56 of the Working Document and noted clause 25 (new 33) dealing with appeal procedures in general. The proposed clause would replace the original 25 as it was presently written, bringing it in line with PAIA.

Mr Landers read the proposed clause and argued that it should end after the word “relief.” This would remove the part which stated, “in the manner provided for in chapter 2 of Part 4 of the Promotion of Access to Information Act.” There was no need for this cross reference. He noted that the courts have stated that the legislature should not dictate what the courts do.

Ms Smuts stated that it had always been her party’s position that someone who is denied access to classified information should be able to appeal to an intermediate appeal body before going to court. While the ANC was at one point willing to allow for a retired judge to act as such an intermediary, they had retracted that. She noted that a cross reference was needed in 33A. She reiterated that 80(2) in PAIA was out of line with the Independent Newspapers judgment, and she wanted to amend 80(2) in order to bring it in line with the judgment. She also referred to the original clause 46, saying that the default status of information must be open rather than closed.

Dr Oriani-Ambrosini remarked that 80(2) of PAIA told the courts how to deal with information while 80(1) stipulated which information was required by the courts, and argued that 80(1) was the more problematic clause from PAIA in relation to this Bill. He asked if 80(1) would apply if no cross reference was made. If Mr Landers felt this cross reference had no importance, then it made no difference whether it was eliminated or not. Dr Oriani-Ambrosini felt that for the sake of clarity, it should be kept.

Mr Swart noted support for Ms Smuts’ call to amend 80(2) of PAIA; however, he suggested a rewording of the proposed clause as an alternate option. He asked at what stage relief could be sought with regard to the clause, and recommended adding “after the requester has exhausted the internal appeal process” to it in order to clarify the necessary procedure before appealing to the courts. He said this could help solve the concerns raised about 80(2) of PAIA.

Mr Makabeni said his reading of the Independent Newspapers judgment was contrary to Ms Smuts’ understanding, saying 80(2) of PAIA had not been struck down and dealt with a different matter instead.

The Chairperson referred back to the original clause 46 of the Bill, saying this was a general provision with regard to the courts. The question of appeal could be finalised once it was decided if 33A would end after “relief” as Mr Landers had suggested, and whether Mr Swart’s additional stipulation should be included. He asked Mr Landers to comment on the way forward for this clause.

Mr Landers felt his party should stick to their proposal, but he conceded that Mr Swart’s suggestion had merit, whereas the other opposition arguments did not. He said that the Committee still needed to confront what was in the original clause 46, and added that he was open to including Mr Swart’s proposal.

Ms Smuts asked to discuss 46, and stated that 80(2) of PAIA was not a huge matter for the purposes of this Bill. In regard to 46, she proposed changing the default status of information from closed to open.

Dr Oriani-Ambrosini reiterated that the issue here was 80(1), not 80(2) of PAIA. He also said that section 78 of PAIA articulated Mr Swart’s suggested provision. On the original clause 46 of the Bill, he said it could be changed to stipulate that the Minister could have the final say on what is withheld from the courts.

Mr Swart said that the Bill’s definition for request of access to information came from PAIA. He restated his rewording and said that while he would prefer to keep the proposed 33A as it was written in the Committee Proposal, this was an acceptable alternative.

Mr M Sonto (ANC) remarked that Mr Landers had stated his party’s position. The Committee should not be prescribing to the courts how they should conduct their business.

The Chairperson noted Ms Smuts’ suggestion to discuss the original 46 and asked the Committee if they would be willing to do so, as he felt it could be useful for the current proceedings.

Mr Landers said there were other matters that had been flagged and asked to deal with those first.

The Chairperson asked Mr Landers if the proposed 33A was to be amended to include Mr Swart’s proposal, to which he responded yes. He then instructed the State Law Advisor to make the agreed upon changes, but not to include the new proposal in the Working Document yet, as it was still to be considered. He further asked the State Law Advisor if there was anything else they wanted to bring attention to, and Ms Booyse responded no.

Application of the Act and opt-in clause
Mr Landers referred to a point made about automatic declassification in the Committee’s previous meeting. He said careful consideration had been given to the issue, but he felt uncomfortable about the prospect of top secret documents being automatically declassified by virtue of a period of time elapsing. Additionally, he stated that consideration was given to the application of the Bill. Various options were considered, but it was his view that the best way to approach this was to included a separate clause articulating the Bill’s application to security services and oversight bodies as set out in Chapter 11 of the Constitution. He said the Bill could not restrict provision without including these bodies. He noted that he did not have a formal proposal in front of him, but asked if it would be possible for the State Law Advisor to draft one in writing.

The Chairperson asked Mr Landers for his position on the opt-in clause with regard to application.

Mr Landers said this had been formally proposed already, and would be included as a sub-clause in the application section to allow for opt-in.

The Chairperson referred to page 9 of the Committee Proposals document, asking if he was right in saying that 3(1)(a) and (b) were to be retained.

Ms Smuts remarked that almost no valuable information was left in the Bill. She suggested some safeguards be built in with regard to the opt-in clause. To this, she referred to 3(2), arguing that requiring the relevant Minister to provide notice of classification in the Gazette was not enough. Each instance of classification should be notified to the Classification Review Panel as well.

Dr Oriani-Ambrosini said his understanding was that the application clause would remain as it was, and that a separate clause would be inserted to deal with sensitive information of opt-in organs of state. He then questioned how this clause would differ from existing provisions on state security matters.

Mr Landers stated that 3(1)(a) and (b) would be retained. He responded to Ms Smuts’ suggestion by saying there was no need to reference the Review Panel.

Mr Maynier, in respect to the opt-in mechanism, argued that an organ of state would have to show justification in terms of national security. He proposed that a formal notification process be stipulated for opting-in. To this, he stated that the Joint Standing Committee on Intelligence, the Review Panel, and the relevant Portfolio Committee be notified by the organ’s Minister upon opting-in.

Mr Swart said the ANC’s suggestion of narrowing down this provision was good, and he further recommended that the opt-in mechanism require “on good cause shown” in relation to national security, in order to limit its scope.

Mr Landers said Mr Swart’s recommendation of “on good cause shown” was the correct legal term for opt-in application, noting that this captured what he was proposing. To Ms Smuts’ remarks, he said that Gazetting notification of classification was more than adequate.

The Chairperson asked if there were criteria in the Bill that determined how Chapter 11 institutions opted-in, and if there should be any difference. He instructed the State Law Advisor to draft a clause that captured what had been discussed, and asked if it could be presented before the end of this meeting or by the next day’s meeting.

Ms Booyse responded that a draft could be made available in writing later in the afternoon.

Declassification database

Mr Landers said careful consideration had also been given to the declassification database, but more time was needed to look at it.

Ms Smuts reminded the Committee that a regulator was being created to oversee the declassification database, and she was hopeful this would be effective.

Mr Landers responded that it was precisely that, among other things, that was holding them back on this particular matter. He argued that it would probably take at least two years to set up the office of the regulator. He said this left the situation in limbo.

The Chairperson said that the question of the declassification database was a simple one. The Committee needed to consider if its inclusion would complicate matters and what its value would be in the Bill. They were dealing with something potentially oppressive, as the Bill was now limited to a very small number of organs of state. He asked if the declassification database was taken out, would the Bill then collapse in any way or would any rights be restricted.

Dr Oriani-Ambrosini referred to the original section 27(4) (now 35(4)), noting its stipulations for automatic declassification and the national declassification database. He understood Mr Landers’ concerns about automatic declassification occurring after a certain period of time, but the critical question was what happened to the information once it arrived in the database.

Mr Landers noted that resources would need to be provided in order to create the database, and remarked that it was not unusual to deal with a Bill and not realize its financial implications until later. However, he said that the whole archiving process needed to be clear.

The meeting was adjourned for a tea break.

Classification status review
The Chairperson resumed the meeting and deferred to Mr Landers.

Mr Landers referred to page 10 of the Committee Proposals document and discussed the Classification Review Panel. He said clause 21 dealing with status review should be deleted.

The Chairperson asked if there were any objections and instructed the State Law Advisor to remove the clause.

Dr Oriani-Ambrosini then remarked that there was a problem and attempted to illustrate it by making a presentation. He first noted that sections 31 to 37 of PAIA articulated what information could not be accessed, and added that what could be classified was articulated by sections 13 and 15 of this Bill. He said it had been agreed that request for access to information would have to be made under the terms of PAIA. Further, he argued that by removing clause 21, the Committee would be eliminating the provision of action for review but not access. This was an issue, as declassification would no longer be achievable and documents which would have been declassified would not be accessible.

Ms Smuts said the sections in PAIA which Dr Oriani-Ambrosini referred to were utterly irrelevant to the matter in this Bill.

Dr Oriani-Ambrosini attempted to clarify his position and argued that if clause 21 was removed, there would be no mechanism for declassification. This was particularly important for cases in which there was erroneous classification.

Mr Landers said he understood Dr Oriani-Ambrosini’s point about erroneous classification, but it was not correct to say that was all they were dealing with. He had been discussing the issue of access to classified information, and he was unsure of what Dr Oriani-Ambrosini was referring to. The concern about erroneously classified information was limiting the scope of the matter, adding that one could request information even if it was correctly classified.

Dr Oriani-Ambrosini further tried to explain his position, saying that the provision of clause 21 dealt with the status of classified information. Request for review would only be able to take place if the information was erroneously classified. He added that under PAIA, there could be some information that would not be accessible even though it should be declassified.

Mr Swart said Dr Oriani-Ambrosini was falsely assuming such information would be classified and that the sections he was referring to in PAIA were irrelevant.

The Chairperson agreed that Dr Oriani-Ambrosini’s concerns had nothing to do with PAIA.

Dr Oriani-Ambrosini said he was raising his concerns in good faith and provided an example to explain his point. He referenced clause 37(1)(b) of PAIA and said that information could not be classified for the same reason access would be denied to it. He asked how the requester would be able to ask for status review. He stated his belief that the Committee had agreed to conduct the review process under terms of PAIA, to which other members responded that it was not.

Mr Swart articulated the process through which requests for status review would be made and tried to clarify his concerns. He said Dr Oriani-Ambrosini was missing the process’s end, as he was looking no further than the request itself.

Dr Oriani-Ambrosini said that it was an issue that requests would be made by terms of PAIA.

The Chairperson said the Committee tried their best to assist Dr Oriani-Ambrosini in understanding these provisions and they had to move on. He told Dr Oriani-Ambrosini that if he did not agree with the deletion of clause 21, they would note that. He stated that he kept an open mind during the debate but that he felt Dr Oriani-Ambrosini’s argument was flawed. He encouraged him to sit down with a fellow Committee member in order to gain clarity and understanding on the issue.

Definition of ‘national security’
Mr Landers commented on the issue of the definition of national security. He had unsuccessfully tried to persuade his party to accept his personal view that a definition was not necessary altogether. Therefore, he presented the proposed definition on pages 1 and 2 of the Committee Proposals document.

Mr Maynier noted his agreement on the inclusion of the definition, but said the problem of the definition itself remained. He remarked that his own proposal for the definition was not captured in the proposal under consideration, and asked why it did not find favour within the ANC.

Mr Landers said Mr Maynier’s proposal was not ignored, and that the two proposals had elements that matched. 

Dr Oriani-Ambrosini raised concern about the issue of violence as articulated in the definition. He suggested that it would be better to qualify acts of violence as being “generalised” or “widespread.”

Mr Maynier proposed adding a sub-clause (d), which would protect lawful political activity, advocacy, protest, and dissent. Further, he was unclear about what a hostile foreign intervention was and asked for an explanation. He then remarked that the definition of state security matter was too broad and needed to be narrowed. He also suggested that the Committee consider his party’s proposal for articulating violence.

Mr Swart said he felt the Committee was making progress on this issue. He advised the Committee to look at 5 again, because it had come directly from the “national interest” definition, which had been removed. He said they should be particularly careful because the national security definition was going to be the trigger for the opt-in clause. He noted that the part reading “the exposure of economic secrets vital to the Republic’s development” needed narrowing, as this could include something such as GDP figures.

Mr Maynier, in reference to Mr Swart’s concern, suggested looking at the language in 17(1)(j) to narrow the clause. He revisited the issue of state security matter, noting the history of the concept. He referred to the 1982 Act which dealt with police matters, or security matters, and stated that the concept was precisely used by the apartheid government to enforce its authoritarian policies. The Committee should seriously consider removing ‘state security matters’ not only from the national security definition, but the entire Bill itself.

The Chairperson remarked on the issues raised about “violence” as in the definition, and said it could be specified to read “violence aimed at undermining the constitutional system or government.” On state security matters, he suggested that a similar phrasing be adopted. He felt that if these two issues were addressed, the definition would be well-written. He did not agree with Mr Swart’s concerns about “economic secrets.”

Mr Swart said it should be more specific, suggesting it could read “the exposure of economic secrets vital to the Republic’s stability, security, integrity, and development.” This type of qualifying package at the end would narrow the clause.

Mr Landers remarked on Mr Maynier’s proposal to insert in the definition “does not include lawful political activity, advocacy, protest, and dissent,” saying it would not do harm to the definition. He also responded to Mr Maynier’s question about hostile acts of foreign intervention, saying it referred to a declaration or act of war against the Republic.

Mr Maynier suggested narrowing the term “hostile acts of foreign intervention.”

Mr Landers asked why this had to be narrowed, as it was clearly referring to an act of war.

Mr Maynier said if it was articulating an act or threat of war, then this would better be captured by his own proposal, as the language he used was drawn directly from the Constitution. He felt that “hostile acts of foreign intervention” could refer to something other than war. He suspected that it was intended to mean state security being manipulated by foreign entities. If this was not what it meant, then it should be narrowed to specify an act of war.

Mr Landers responded by saying he had drafted this and he understood what it meant.

The Chairperson noted that the defining of this term had not been an issue when it came up in earlier meetings, and he was surprised that members now did not understand it.

Evening session

After Members had discussed the suggested definition of “national security” the Chairperson summarised that the State Law Advisors should amend the definition to exclude the word “means” and instead use the word “includes”. He noted that the ANC proposal for the definition had excluded much from the original version of the Bill.

Mr Landers referred to the DA proposal to include the phrase “but does not include lawful political activity, advocacy, protest or dissent”. He agreed that if a unions were to march and protest in front of the Parliamentary buildings, that would not been seen as a threat to national security.

Mr Maynier referred to paragraph (iv) of the ANC proposals, which referred to exposure of a State security matter, and (vii) which referred to acts of violence, and said that these seemed substantially along the lines of what the DA had suggested in its paragraph (a)(v), pointing out that the words the DA had suggested were drawn from PAIA and referred to “aimed at changing the Constitutional order of the Republic”.

Mr Landers pointed out that this proposal had already been accepted.

Mr Maynier said that not quite the same words were used by the DA as had been stated by the Chairperson. He reiterated that his proposals followed the language of PAIA and was consistent with the definitions.

Other Members indicated that the Committee seemed almost to have reached agreement on this.

The Chairperson said that this wording essentially related to hostile acts of foreign intervention. He asked Mr Maynier if there would be objection to that.

Mr Oriani-Ambrosini said that he had raised the issue of referring to hostile “acts” rather than “activities”.

Mr Swart said that PAIA used the term “hostile activities”.

Mr Maynier said that the ANC’s concern was around acts during a state of war, and he shared that concern but would prefer to replace the wording there with “threats to the sovereignty or territorial integrity of the Republic”. That was the language used in the Constitution.

Mr Landers said that he did not agree with this.

The Chairperson summarised that this was why he had asked that a separate proposal be brought forward from the DA.

Mr Landers said that many of the concerns had been accommodated, that the proposed wording had been put forward, and that there was not much more that could be done.

Mr Maynier said that there was clearly disagreement on this issue, and suggested that Members must move on. He would give the State Law Advisors (SLAs) the DA’s draft wording for the “national security” definition so that it could be incorporated into the document.

Application Clause 3
Mr Landers noted that the SLAs had now provided a draft of the applications clause, which seemed to be in line with what the ANC had requested.

Ms Smuts asked if this should not be made more specific by referring to “national security”.

The Chairperson reported that this was one of the clauses that had sparked much debate. He had had some reservations about the references to juristic and natural persons, in relation to the offences clauses.

Ms Smuts referred to the article by former Minister Ronnie Kasrils published in the Sunday Times on the previous day, saying that she did not agree with much of what had been said, and pointed to one suggestion that the intelligence community “concocted” information.

Mr Landers said that he had noted that much of what had provoked a comment was in fact not included in the 2008 version of the Bill. The problem with this Bill, as pointed out by Dr Verne Harris, was that it was developing so fact that it was difficult to keep track of what was happening.

The Chairperson reminded the Committee that because the scope of application of the Bill had been substantially reduced, many of the former fears and concerns about classification should no longer be applicable.

Ms Smuts noted that she was provisionally in agreement with the ANC’s proposals, but wanted the words “and which can demonstrate that the information to be classified relates directly to the national security” to be added at the end of clause (b). This could take the place of “on good cause shown”. She agreed that an organ of state would have to justify its decision to apply to the Minister to have the Bill apply to it.

Mr Landers said that this proposal could be added in to the next Proposals document. He said that it was very important for people following this process to understand that there was a new applications clause.

The Chairperson asked the State Law Advisors to include the proposal of the ANC, in respect of clauses 3(1) to 3(2)(a) into the next Working Draft document. However, both the ANC and DA proposals for 3(b) should be carried forward to the next Committee Proposals document.

Hostile activity considerations
Mr Landers said that the Committee had debated at some length the whole question of the hostile activity offence (clause 42), and in particular whether the wording should read “and prejudice” or “or prejudice” (the Republic in its international relations). The ANC was convinced that the word “or “ should remain there, and he therefore recommended no changes to the Working Document wording placed before the Committee.

Dr Oriani-Ambrosini said that the definition of “hostile activities” included certain actions that would contribute to the offence of “hostile activities” but that this would apply only to certain people who were not state actors or journalists, and only in respect of certain activities. He thought that this definition would no longer be applicable if the word “or” was used, as whoever had brought about the prejudice, irrespective of the nature or purpose of his or her actions, would be deemed to commit a hostile activity. He stressed that it was not possible to include any of the activities listed in the hostile activity definition without causing prejudice to the State.

Mr Swart said that when this issue was previously debated, he had suggested that if “or” was used, then it was necessary to clarify this with a specific reference to “prejudice the national security of the Republic.”

Mr Maynier said that he had heard the ANC position, and agreed with Dr Oriani-Ambrosini that it would be useful to keep the section flagged for further debate, pointing out that it was expected that a legal opinion would be received shortly around “prejudice”.

Mr Landers said to Dr Oriani-Ambrosini that the clause had to be read very carefully. It would precisely be the non-state actor who would be engaged in the hostile activity, even though he may not actually have committed a hostile act such as blowing up a train, but could have been provided with secret information by another person, acting unlawfully or intentionally. The prejudice was different.

Ms Smuts suggested that this was why it was necessary that both be included.

Mr Landers felt that the concepts must be kept separate.

Dr Oriani-Ambrosini said that “or” implied either a benefit, or a prejudice, and that would seem then to eliminate the whole notion of hostile activity, as also the notion of non-state actor, as defined.

Mr Landers did not agree with this interpretation.

Dr Oriani-Ambrosini asked for reasons. He pointed out that the base level was simply being raised. What had essentially been said that this could be anything from one to one hundred actions, and he believed that “benefit of non-state actors engaged in hostile activities” was simply not required.

The Chairperson reminded Members that in June 2010, the Mail and Guardian made a substantial submission on the Bill. The Committee was encouraged to take particular note of proposals, particularly those in relation to the offences. That document did not speak of “non-state actors” and seemed to be satisfied that “prejudice to the state” could remain. However, there were requests to change the references to offenders’ knowledge, and references to intention. The key issue of that proposal was that the notion of prejudice to the state could be retained. He pointed out that this submission was drawn by lawyers, and he wondered what had now changed in legal or political circles to suggest that a different position was now to be taken.

Ms Smuts said that the Mail and Guardian had made the same submissions in 2008 and 2010. She pointed out that many of the problems only emerged at the stage when the Members pulled apart a piece of legislation and that was the virtue of the process. Other eminent jurists or academics had isolated other problems. The DA remained concerned about this clause, and still believed that it would have an effect on journalists.

Mr Landers suggested that both the proposals on this clause should be carried forward to the next Committee Proposals document.

Disclosure: Clause 47
Mr Landers noted that the Committee had originally taken the view that, in subclause 47(b), the words “any other law” would suffice. However, the ANC had since received a legal opinion on this, and requested that the ANC be given time to consider this.

Summary of outstanding issues
Mr Landers said that this seemed to cover the outstanding issues.

Ms Smuts reminded Members that the Preamble must still be considered.

Mr Landers said that the ANC had drafted a proposal on this and would circulate it.

Ms Smuts also said that although the question of conflict of laws was still on the list, she thought that this may have been resolved.

Mr Maynier added that clause 52 still had to be discussed.

Dr Oriani-Ambrosini said that he had tabled a list of concerns in the previous week, and thanked the State Law Advisors for reflecting those in the Committee Proposal document. However, there were some other additional aspects that he had not specifically asked to be tabled; some had become obsolete but others might be valid, and he asked if the ANC would discuss those with him, outside of the formal meetings, to give an indication whether it believed that they were still worth discussing, and so that he could make an assessment of whether it would be worthwhile for him still to pursue certain points.

The Chairperson noted that the ANC was not opposed to this, and said that anyone who wanted to join in those discussions could do so. That should bring value to the process. He would give Members the opportunity to raise these, if necessary, at an appropriate stage.

Classification Database
Mr Landers noted that when Dr Verne Harris, Head of the Memory Programme at the Nelson Mandela Foundation's Centre of Memory and former Deputy Director of the National Archives, had briefed the Committee recently, he had indicated that, because of the high costs involved, and the fact that the National Archives had processes in place, he did not think that it was necessary to include provisions in this Bill requiring the establishment of a national declassification database. The ANC, having considered the reasons, agreed, and recommended that the provisions dealing with the national declassification database be removed.

Ms Smuts said that the DA had also taken advice from Dr A Lotriet (DA), and the DA agreed that the process of a national declassification database would be too onerous. However, she pointed out that other repositories or entities that held archival material should be required to compile lists of declassified material. They in any event had to compile lists of the information that they held, so this should not be too onerous a task. She added that if the Committee decided to follow the other suggestion of Dr Harris and revert to the wording of the 2008 version of the Bill in respect of archival material, then the Committee would be faced with quite a heavy task, as these clauses would have to be adjusted to cater for current developments in this Bill.

Mr Swart supported the view that the national declassification database should not be required, for reasons given before. He added that section 14 of the Promotion of Access to Information Act (PAIA) made it clear that public bodies must keep manuals and indexes of records in sufficient detail to allow for access, along with categories of records. The ACDP would look at the addendum suggested by Ms Smuts, but his first impression seemed to be that it was already covered by PAIA.

The Chairperson said that he had mentioned to Dr Oriani-Ambrosini, who had now left the meeting, that the ANC would be making this proposal and he had indicated that he would support it.

Mr Landers responded, to Ms Smuts, that it would not make sense to dispense with the requirement for a national declassification database, but still require entities to submit a list, which was effectively a database. He agreed with Mr Swart that PAIA already dealt with these matters in detail, although it was another matter altogether whether entities were complying with these requirements. He reminded the Committee that Dr Harris had described a database as a descriptive tool, and it was not a copy of every record. It thought it would create unnecessary complications to require entities to follow the route suggested by Ms Smuts.

Ms Smuts said that she took note of this view, but still wanted to refer it back to Dr Lotriet before giving a final comment.

The Chairperson asked the State Law Advisors to remove all references to the national declassification database. This would involve consequential amendments as well, so he asked that the changes must be pointed out to the Committee at the next meeting. Any other amendments that may need to be made should also be brought to the attention of the Committee.

Clause 35(4)
The Chairperson asked Members to look at clause 35(4) (on page 58 of the Working Draft), which had been raised by Dr Oriani-Ambrosini. This clause also contained a reference to the national declassification database and there were suggestions that this clause could be deleted.

Ms Smuts thought that it would not be a problem, if the ANC did not want automatic declassification. She reminded Members how it was intended to deal with records from the past. She summarised that each department would have to review its material, and where a department or entity was now defunct, the State Security Agency would have to do this task. All of this would be overseen by the Classification Review Panel (the Panel), and, in view of the fact that this would take a long time, she asked if the twenty-year rule would be retained.

Mr Landers said that this was provided for in PAIA, but there was an exception.

Ms Smuts asked if the Committee would be writing in conditions for continued classification.

Mr Swart said that these were already set out on page 42 of the Working Document, where clause 18 contained the reference to the twenty-year period.

Mr Landers said that he was in favour of those conditions.

Mr Swart added that clause 34(6) on page 57 of the Working Document was cross-referenced to clause 18.

Mr Landers added that the Committee would also have to consider what was written in PAIA.

Ms Smuts thought that this suggested that there might be all the more need to draw up declassification lists, as she thought that there was a risk that such information could simply sink from view.

Mr Landers noted that section 41(3) of PAIA provided, in relation to the security services, that a record could not be refused in terms of section 41(1)(iii) of PAIA if that record had come into existence more than twenty years before the request was made. This, however, was different from the automatic declassification. Essentially, this provision would cater for a lazy official who was not keeping abreast of what had to be done, and who might then be faced with having to give up information that should in fact remain classified. He asked Members if this provision needed to be changed.

Mr Swart pointed out that this was quite a narrow provision of PAIA, which was limited to international relations.

Mr Landers thought that this was all the more reason for worry.

Mr Swart thought that there was another section of PAIA where reference was made to the 20-year period.

The Chairperson asked the State Law Advisors to check the references and advise the Committee of any consequential amendments that would have to follow from this. In addition, he asked that they consider the provisions of the Bill around automatic declassification. The ANC had proposed that clauses could be removed, but there might be instances where a record would be automatically declassified if a person failed to act. He also asked that attention be drawn to cases where special application could be made to continue to classify records older than 20 years. If Members did not like that process, then there should be a good reason as to why the matters should continue to be classified.

Ms Smuts also asked Members to refer to clause 18, saying that there were three criteria set out there – namely, that the information must be “crucial” to the safeguarding of national security, “necessary” to prevent significant and demonstrable damage, or “necessary” to prevent demonstrable physical or life threatening harm. She asked what the difference was between “crucial” and “necessary”, and thought that “crucial” was stronger.

Mr Landers also asked that Members should consider clause 34 (6), which simply said that where the organ of State failed to act in terms of clause 18, then the record would become automatically declassified.

The meeting was adjourned.

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