Protection of State Information Bill: Working Document 20 and Committee proposals 20

Meeting report

Protection of State information Bill (the Bill): Working Document 20
Dr M Oriani-Ambrosini (IFP) noted that he had researched some issues last night, after the meeting, and wanted to correct a statement. He noted that it was incorrect to state that the CIA vetted immigration applications in the United States of America. This was done by the Federal Bureau of Investigation (FBI) which was a police agency. The South African position therefore found no parallels in USA.

The Chairperson noted this comment, but said that nothing really would turn on it.

Working Draft 20: Protection of State Information Bill (the Bill): State Law Advisor’s presentation
Ms Carin Booyse, Deputy Chief State Law Advisor, Office of the Chief State Law Advisor, tabled new Working Draft 20 of the Bill, and noted that on page 21, paragraph 2(j) had been deleted, which had referred to the national declassification database that Members had decided was no longer necessary. On page 56 of the Working Draft, the application to Court provision had been inserted, as a new clause 34. In 34(2) the words “subject to section 18” had been inserted. Subclause 34(6) had been deleted. Clause 34(7) was still in the Committee Proposal document, but this also would seem to need to be removed, as it was a consequential amendment.

Members agreed that this subclause may be deleted.

Further changes were reflected on page 63, with insertion of a new offence relating to the head of an organ of state who did not comply with the Bill, and on page 67, the words “national security of the Republic” had been inserted into all the subclauses of clause 42, which dealt with hostile activities.

Members agreed with the changes to clause 42.

Dr Oriani-Ambrosini said that he had not been present when this was discussed, and could not agree to it. Personally, he did not see any greater value added by the new words “to the national security of the Republic”. This was already the sole basis on which information could be classified under clauses 13 and 17. However, he did not want to reopen the debate.

The Chairperson said that this point would be noted, but the change would be noted for the meantime in the next Working Document.

Committee Proposals on Working Document 20
Ms Booyse noted that on page 1-2, the definition of “national security” was set out, and a new subclause (d) had been added, which provided exclusion in the case of lawful political activity, advocacy, protest or dissent.

She noted that there was also a loose leaf document containing another drafting proposal for the definition of “national security”, which had different word order for (c), although the principle remained the same. The proviso in relation to the lawful political activity and other matters was also included under (c) and not as a separate paragraph.

The Chairperson noted that there were also additional proposals from the DA and IFP.

Mr Landers noted his appreciation to Ms Booyse for the rewording of (c), which he thought was now much clearer.

The Chairperson asked Members to confirm whether their proposals were correctly reflected, because he would like to flag the matter for discussion later.

Mr D Maynier (DA) said that he would like some time to consider the redrafted (c), because he was not sure that his proposal had been captured. The insertion of the last line was, however, correct. Mr Maynier asked if it was intended to keep this flagged for discussion at a later stage, and whether additional proposals could be considered.

The Chairperson said that no further proposals would be taken now and Members should try to move towards agreement on the proposals as captured.

Mr Maynier wanted to ask if the ANC would be prepared to consider slight changes in the wording of their proposal.

The Chairperson noted that the ANC had already given notice that it preferred the wording set out. He suggested that perhaps it might be easier to amend the DA’s document.

Mr Maynier said that he was happy to draw up another definition. He said that he wanted to make three simple proposals, which the ANC could accept or reject. He welcomed the insertion of the last sentence. He reiterated that he did not agree with the formulation of (b)(i), (iv) and (v). Although the DA had originally proposed the deletion of (b)(i), it had now accepted that the ANC wanted this included. On the previous day he had suggested the insertion of a qualifying phrase, but that too did not find favour. Now he wanted to propose that the qualifying phrase “aimed at undermining the constitutional state in the Republic”, which was included in (b)(iv), should also be inserted into (b)(i), so that this would read: “hostile acts of foreign intervention aimed at undermining the constitutional state in the Republic” In respect of (b)(iv) he would then suggest, for the sake of greater consistency, that the wording must read: “exposure of State security matters with the intention of undermining the constitutional system of government in the Republic”. The DA remained concerned that (b)(v) was over-broad, particularly the reference to economic secrets, and development. For that reason it had proposed that this clause should be brought in line with clause 17(1)(j) of the original Bill, to read: “ the exposure of scientific or technological secrets vital to the Republic”. Finally, he asked that the DA be given some time to consider the new wording of (c), which would include some acts that were new.

The Chairperson asked that this wording be provided to the State Law Advisors (SLAs) in writing.

Dr Oriani-Ambrosini asked for clarification on his proposal. The document did reflect what he had tabled originally. However, on the previous day he had made a simplified proposal, which he would also like to be recorded, as Members might find favour with that when they considered the matter further. He reiterated that the “threat” should be qualified as “clear and present threat”. Then the “use of force” should be moved to become a paragraph under (b), so that the definition would read “national security includes the protection of the people of the Republic and the territorial integrity of the Republic against the clear and present threat of:
(i) the use of force
(ii) hostile acts of foreign intervention” … and then the remainder of the paragraphs under (b) would follow, save for the deletion of the current (b)(iv).

Mr S Swart (ACDP) noted that the parties were very close to agreement. The ANC’s suggestion could be tidied up with the qualifiers to (iv) and (vii) being made consistent. The wording in the definition of hostile activities referred to the “constitutional order of the Republic”. This definition, however, referred to both the “constitutional state” and “system of government” and he thought that there should be consistency, whatever wording was finally chosen.

Ms M Smuts (DA) suggested that “constitutional order” was preferable.

Mr Swart noted that he supported the DA proposal on (b)(v) to remove “economic” and “development”.

Mr Landers addressed the DA proposals. In respect of (b)(i), he said that a hostile act of foreign intervention would always be designed to overthrow or undermine the constitutional order of a state; this spoke for itself and did not need any qualifying words added. He did agree with Mr Swart’s proposal on consistency of wording, and the ANC would look at this. The ANC was not, however, persuaded on the DA’s comments for (v) and still maintained that its own proposal was preferable to that of the DA. In respect of Dr Oriani-Ambrosini’s suggestion, the point about “clear and present” had been raised before, but did not find favour either with the ANC or the other opposition parties.

The Chairperson asked the State Law Advisors to suggest an adjustment that would make the wording in (b)(iv) and (vii) consistent, choosing either “undermining” or “overthrowing” and using the phrase “constitutional system of order” in both.

Mr Maynier said that the DA was prepared to concede on the point agreed to by the ACDP and ANC, in regard to adjusting the language. However, he asked why the ANC thought there would be a problem in inserting the wording he had suggested in (b)(i) if this was already implicit. He maintained his objections to (b)(v).

Mr Landers said that if the words “aimed at undermining the constitutional order of the Republic” were included, in terms, under (b)(i), then they would also have to be repeated for every other paragraph, and this was “ludicrous”.

The Chairperson noted that there was still no consensus on this. Two differences of opinion remained, and the State Law Advisors were asked to capture optional wording, for (i) and (v).

Ms Smuts said that she wanted to comment on the introduction of the phrase “acts directed as undermining” in (c). This was, to her mind, introducing a whole new category of unknown factors that became part of the new definition. The DA would be suggesting a more limited delineation of these.

Dr Oriani-Ambrosini agreed with Ms Smuts’ comment. If his wording for “protecting the Republic against (clear and present) threats of…” was used, then it would be possible to leave out the reference to “acts”. He repeated that in his view the “threat” must also be qualified, if not by using “clear and present” then at least by words that would make it clear that this was a demonstrable and objective threat. “Threat” should therefore be the overarching category into which everything else fell – including hostile acts, terrorism, espionage, violence, and undermining the capacity of the Republic – and that should be demonstrable or likely.

The Chairperson said that this was a circular argument. He asked that Members should pass their proposals to the State Law Advisors for incorporation into the next Committee Proposal document.

Clause 2 : Objects of Act - Page 3 of Committee Proposal document
Ms Booyse noted that the SLAs had removed the word “handled” from (c), and also noted changes to 2(f), (g), (h) and (j). The originally-numbered subclause (k) had been removed, because it dealt with the establishment of the national declassification database.

Ms Smuts suggested that subclause 2(j) from the original version of the Bill, which called for harmonising this Bill with the Promotion of Access to Information Act (PAIA) and the National Archives Act, should perhaps be reinstated.

The Chairperson pointed out that this had been discussed. Members felt that there were a number of other pieces of legislation that may need to be harmonised, and he had pointed out that it would be tedious to go through all laws to check whether harmonisation with them needed to be incorporated. Members had then concluded that nothing would be lost if this was left out. If Members were to insist that the Bill could only be accepted once harmonised with PAIA, the Committee would be in an awkward position. At the beginning of the process, this Committee had agreed that this Bill should not amend PAIA. He suggested that Members should think on this further and the clause would be revisited later.

In the meantime, the Chairperson noted that the changes read out by the SLAs were agreed to, but that Members should consider again whether they wished to make additional amendments.

Clause 3: Application of Act - Page 4 of Committee Proposal Document
Ms Booyse outlined that the first change was the reflection of the new phrase “or part thereof”, in relation to an organ of state. There were also two further proposals. One was for a new subclause (3), and the other was essentially switching around the order of the words in (2)(b)

Mr Landers thought that the main proposal on page 4 was preferable.

Mr Swart agreed that this proposal reflected the fact that regulations must capture all the details, rather than the “Further Proposal” for (2)(b), which tried to specify this in the main body of the Bill.

Ms Smuts commented that the DA would still prefer to see a reference to compliance. She wondered whether it may not be easier to insert a proviso.

The Chairperson pointed out that “on good cause shown” was used, and this was generally understood to mean more than good faith in bringing the application. He agreed that the further proposals set out on page 5 seemed to take matters further than intended.

Ms Smuts asked if the regulations would have to be brought to the Joint Standing Committee on Intelligence (JSCI). She still thought that there should be a proviso reading: “provided that the relevant organ can demonstrate the necessity to classify on the grounds of national security”.

The Chairperson asked what meaning would then be attached to “on good cause shown”.

Ms Smuts said that this would ensure that the application was properly made. She asked that the wording she had read out should be considered as a formal proposal.

The Chairperson asked the SLAs to capture that DA proposal in the next document, although the two proposals listed on page 5 of this document need not be carried forward.

Clause 34(7): Page 10 of Committee proposal document
Ms Booyse noted that subclause (7) would now be deleted.

This was agreed to.

Preamble : Page 15 of Committee proposal document
Ms Booyse indicated that the words “for national security” were now included in the third paragraph of the Preamble.

The Chairperson thought there was a grammatical problem in the third paragraph.

Ms Smuts suggested that it would be preferable to add the phrase “for reasons of national security” or “for protection of national security” at the end of the sentence in paragraph 3 of the Preamble.

Mr Landers noted that, whilst he had no problem with that suggestion, PAIA only said “restricts where necessary”, and did not include any test.

Ms Smuts read out a portion of the International Covenant on Civil and Political Rights. She pointed out that the South African Constitution expressly incorporated reference to international laws, so there would be no reason why wording from these should not be considered. However, she would be happy to go along with merely inserting “for reasons of national security”.

The Chairperson asked the SLAs to insert the Preamble, as agreed now, with the insertion of “for reasons of national security” in paragraph 3, into the next Working Document.

Clause 16 of Working Document
The Chairperson noted that at a previous meeting, Members had expressed concerns about a classified document being handed in to the South African Police Service (SAPS) or the Agency. This requirement was set out in clause 16 (as numbered in the Working Document), but the offence was created in clause 48. The Bill was clearly concerned with trying to restrict further movement of a classified document that had “escaped” the classification net.

Ms A van Wyk (ANC) thought that it would be necessary to place specific obligations on SAPS as to how a document would be handled, when handed in, and which official at a police station should receive it. This would need to be set out in regulations.

Mr Swart added that it would be necessary also to ensure that the person handing in the document would not be arrested, and the information should not then be passed on by the police to anyone else.

Mr Maynier asked for the purpose of handing in the document to SAPS. He wondered if there was not a danger that SAPS, particularly where the document was handed in by a journalist, would not then try to investigate how the leak had occurred.

Mr A Maziya (ANC) said that the document must be handed in to a designated officer.

Mr Landers said that Mr Maynier had now revealed his whole approach to the Bill, which suggested that there was in fact virtue in leaking documents, and that this should not be investigated.

Mr Maynier pointed out that his position was based on democracy. If a classified document revealed unlawful acts or malfeasance, then there was indeed “virtue” in leading it. Whoever handed this in should not be sanctioned.

Mr M Sonto (ANC) suggested that Mr Maynier should not assume that it was only the DA who complied with “democracy”, and made the point that in fact the ANC had assisted everyone by ushering in democracy.

Dr Oriani-Ambrosini said that Ms van Wyk’s point highlighted a problem that the Members had not discussed. A person would bring the document to SAPS, albeit under compulsion of law. However, the crime of illegal possession applied to a person, without the necessary security clearance, who had possession of a classified document. The policeman who received and read that document therefore also would become guilty of that crime. That policeman may well tell others about the document and its contents.

Ms van Wyk said that, on a point of order, Dr Oriani-Ambrosini was missing the point…

Dr Oriani-Ambrosini interrupted to state that Ms van Wyk had not raised a point of order, but was giving a response, and he asked the Chairperson to make a ruling. He added that, at a point, the “lost secret” could not be regarded as a secret any longer. The regulations could spell out how the document would be handled. However, the document had now been circulated by a non-authorised person. If the definition of “public domain” was accepted by the Committee, then this problem would not arise because the document would not longer be classified – and this would give rise to different consequences. Once it was leaked, it could not be un-leaked.

The Chairperson said that this was not what Judge Moseneke’s judgment in the Independent Newspapers case had said.

Ms van Wyk said that this comment ignored the point that the Bill and regulations would be setting out the correct procedure for dealing with that document, and as long as these were complied with, then nobody would be regarded as breaking the law. She did not think that the other points raised were relevant. If regulations were prescribed, and the police officer complied with them, there would not be a problem.

Mr Landers agreed. He noted that Dr Oriani-Ambrosini had raised the issue of public domain at virtually every meeting. The Chairperson had made the point that there was a clear judgment on the point of release of documents into the public domain. However, Dr Oriani-Ambrosini persisted in challenging that, and this was akin to reflecting on the judgment of the Courts.

Mr Maynier agreed that the public domain defence had indeed been argued on several occasions. However, he wanted to draw attention to a quotation, reading: “I must emphasis that information which is generally known, and is disclosed by the Press, cannot lead to prosecutions. This was adequately argued in the Rabie report (on security legislation in 1981) and the case of S v Marais set out this principle”. He then noted that this was a quotation by then-Minister of Justice, Mr Kobie Coetzee, in 1982. He found it astounding that the ANC would still pursue its opposition to the public domain issue, when the principle was already recognised by the apartheid state.

The Chairperson noted that the apartheid days had passed, and he did not think this was relevant.

Mr Swart agreed that the possession and handing over to SAPs was important to reflect in the regulations. This also raised the question of the built-in override, which was included to assist a person who was unlawfully in possession of a document. The example that Members had used in the past was a document that might reveal an imminent risk of explosion at a nuclear plant. A journalist coming into possession of this document should hand it in and bring an urgent application to Court to have the information released. However, there was a practical problem in the meantime. The head of the organ of State would normally need to take a decision on that document, but the police officer at the relevant station was actually in possession of the document at this point. If there was urgency, this might frustrate the process. The only way to solve that was to allow the journalist in this instance to approach the Court directly, without first handing it in, and then it could be dealt with as a classified document that was subject to court processes. Mr Swart reminded Members that this would relate to imminent danger, so it was unlikely that this would occur often. When the 30-day period applied, and there was no particular urgency, it would be dealt with differently. He agreed that here, there was a need to regulate what SAPS or the Agency did with the document. Much of this would depend on the discussion around the defences.

Mr Landers said that the Bill already provided that a court could condone non-observance with the provisions of the Bill in a case of urgency. He said that there was never anything preventing a person from approaching the court directly as a first step, and he did not think that it was necessary to specify this in the Bill. However, that person would obviously have to prove that the matter was urgent. It was unlikely that any Court would refuse to consider a question of urgency.

Mr Landers also understood the concerns about the officials at a police station. He suggested that the Minister of State Security should prescribe how the record should be dealt with, and that should solve the problem. He also confirmed that, provided the document was handled as set out, no one in that chain would be committing an offence.

Mr Maynier suggested that this debate was “bizarre”. He asked Mr Landers if he really believed that a journalist would, in practice, hand a document to the police, if it revealed any wrongdoing. He did not believe that this would ever happen.

Mr Landers countered that Mr Maynier was assuming that every leaked document would reveal wrongdoing.

Mr Maynier continued that the person would approach the Court.

Mr Landers repeated that Mr Maynier appeared to think that the only reason for leaking a document was that it would reveal malfeasance. The Bill already made provision for dealing with malfeasance. Mr Swart had also pointed out that provision was made for imminent threats.

Mr Sonto referred to the scenario sketched out by Mr Swart, saying that if a person knew that a document was stolen, read it, and then approached the Court, then questions would still be asked about how that document came into the person’s possession, so other consequences would still follow.

Ms van Wyk said that the issues should not be debated again, as all the ANC had asked was to tighten the provisions to ensure that procedures were set out in the Regulations.

Dr Oriani-Ambrosini stressed that he had huge respect for Mr Landers, and while he disagreed with what he was saying, he did not wish to reply further.

The Chairperson asked Members to confirm that reference should be made to regulations.

Ms Smuts gave her view that the clause might as well contain this, although the DA still disagreed with having these provisions at all.

The Chairperson then gave instructions to the SLAs to re-word the clause to make it clear that regulations would be formulated to cover how the leaked document must be handled. This might involve spelling out level of seniority of the SAPS official who must receive it, such as the Senior Commander, and the necessity to get a receipt. It was also necessary to empower the Minister to make regulations specifically for clauses 18 and 39.

Dr Oriani-Ambrosini added that he would like something else to be noted.

The Chairperson, after a discussion by Members, ruled that he alone should give instructions to the State Law Advisors, to avoid confusion. Any Member wishing to speak should raise his or her hand.

Dr Oriani-Ambrosini said that he had been addressing the Chairperson directly, on a point of clarity, and asked what the purpose of the regulation would be, and that the instructions and language should be clearly worded also to avoid the police immediately laying a charge against the person handing in the document.

The Chairperson noted that the Regulations would not be written at this Committee, but would be placed before the Joint Standing Committee on intelligence (JSCI) when they had been formulated. For purposes of the main body of the Bill, there simply needed to be a reference to clause 18, which should be included in the next Working Document.

Conflict of laws: Clause 1(3)
The Chairperson received confirmation from all Members that they agreed with the provisions of this clause.

Archival matters
The Chairperson asked the State Law Advisors for comment on the suggestion that the wording of the 2008 Bill should be used, in relation to archival matters.

Ms Smuts noted that the 2008 version of the Bill rested on the idea of automatic classification, and because the ANC did not agree with the idea of automatic declassification, the suggestion that all those provisions could be inserted to apply to this version would not seem to work. Members would, in her view, have to work carefully through all the provisions as set out in the 2010 version. A starting point could be clauses 26 to 28, as numbered in the Working Document.

The Chairperson did not necessarily agree that the 2008 provisions could not be adapted, even if there was not automatic declassification. Dr Verne Harris, Head: Memory Programme, Nelson Mandela Foundation Centre of Memory, and former Deputy Director of National Archives, had said that the fact that a document was automatically declassified did not mean that it would necessarily be made widely available, as that document could fall within one of the restricted categories in PAIA. He asked if there was merit in the 2008 version, if Members wanted to work on the 2010 wording, or if more time was needed. He suggested that perhaps Members should adjourn for a while to discuss this in caucus.

After the adjournment, Mr Landers noted that he acknowledged and respected the views of Dr Harris, but did not necessarily agree with all that he said. The ANC had already set out, and still maintained its views on automatic declassification. The national declassification database clause had been deleted. Dr Harris had requested that the section of the Defence Act dealing with Defence Archives should not be repealed (clause 59(2) of the Working Document) so that those records would not be transferred to National Archives.

Mr Landers said that the new clause 18 dealt with maximum protection periods, setting out the process to deal with information classified for twenty years and longer. Clause 34 dealt with transfer of public records to the National Archives, and Dr Harris had suggested that the National Archives would not be in a position to deal with them, so it was necessary to look carefully at the provisions of Chapter 8.

Mr Swart agreed that the section of the Defence Act mentioned in clause 59(2) should not be repealed and therefore clause 59(2) should not stand. He noted that the 2008 Bill made reference to a period of “thirty years” as the maximum protection period, and Members would need to consider if that should be brought across instead of the twenty years mentioned in the 2010 Bill. He agreed with Mr Landers that the implications of clauses 34 and chapter 8 must be considered.

Ms Smuts said that Dr Harris had suggested that the Committee simply needed to re-insert clauses from the 2008 Bill. Clause 24 of the 2008 Bill was essentially repeated in clause 19 of the 2010 Bill. Clauses 25 and 26 of the 2008 Bill had not been carried across to the 2010 Bill. The 2008 Bill stated that there would be automatic declassification, after a certain date, in a self-executing way. The virtue of this proposal was that it was more practical. It would be very time consuming to monitor specific declassification of every document. Clause 26 of the 2008 Bill said that when the legislation took effect, all classified information would be automatically declassified, and that then the new standards would have to apply if documents were to be re-classified, and this seemed to make sense. Dr A Lotriet of the DA had also thought that clauses 25 and 26 from the 2008 Bill should be reinserted. Clause 28 of the 2008 Bill had been incorporated into the 2010 Bill as clause 17, which had now been amalgamated with the original clause 21. If the procedure of the 2008 Bill was to be reinserted, then the rules for continued classification may need to be rewritten. If everything was to be sent to National Archives, then records after a particular point would be considered automatically declassified. If there was no declassification in bulk, then it was necessary to consider again the sending of records to National Archives.

Mr Landers noted that the ANC did not believe that all records should be sent through to National Archives. The ANC was firmly opposed to automatic declassification. Information would be dealt with by the Agency, where the entity no longer existed, and would remain in the Agency’s archives. The maximum protection periods were acceptable, and would be used when the Agency used to determine whether classified information needed to be further classified. Dr Harris had stressed that there was no capacity in National Archives, and he had asked that the information should be retained where it was already. He did not agree with reinserting clauses 25 and 26 from the 2008 Bill, because they dealt with automatic declassification, and therein lay the problem. The current clause 34 dealt with transfer of material, but he pointed out that the scope of application had been limited, and was basically confined to security services, and clause 26 would probably apply to the entities who opted in. If the Department of Science and Technology Research Division was to classify information, it would clearly need to be passed on somewhere when declassified, and the most obvious place would be the National Archives.

Ms Smuts asked if then, once clause 26 was rewritten, information retained in other repositories should be listed in a declassification list. She feared that if this was not done, all pre-1994 records were likely to disappear, and this would be contrary to the spirit of the Bill.

Mr Maynier added that Dr Harris had also said that in an ideal world, all records should be held by National Archives, if there were no capacity constraints.

Mr Landers did not think that there was any sense in Ms Smuts’ proposal, as a list was in fact a database.

Ms Smuts responded that the main reason for not having a national declassification database was the lack of capacity at National Archives, but it did not follow that every other repository had the same problem. She thought it was only logical that those lists should be supplied.

The Chairperson corrected this, saying that there also had been other reasons, which were that the concept was not clearly set out, and there were other financial implications. The opinion now put forward by the DA referred to other clauses that Dr Harris had not mentioned. He said that all issues around archival material had to be streamlined, and he urged parties to present their proposals for the clauses in writing.

Ms Smuts reiterated that Dr Harris’ proposal was quite simple, since it was to strike out clause 22(d), and then insert clauses 25 to 28 and clause 33 of the 2008 Bill. Only two of those clauses were new matters. She did not think that the PAIA references posed a problem.

The Chairperson again asked Members to reduce their proposals to writing.

The meeting was adjourned.