Protection of State Information Bill: Working Document 26

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

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

The State Law Advisors presented, and took Members through, the new Working Document 26 on the Protection of State Information Bill (the Bill). Changes were noted to the definition of a “state security matter”. Proposals had been made on new wording for clause 1(4), but the DA and ACPD noted that they were still opposed to inclusion of this subclause, believing that it was incorrect and unnecessary to refer to section 5 of the Promotion of Access to Information Act. Clauses were made to clause 12 (formerly clause 13), dealing with classification levels, and a new chapter was provided for appeals, incorporating clauses 31 and 32. The State Law Advisors informed Members of the origin of the 90 day period allowed to the Minister, but they felt that a 30 day period was more appropriate. Changes to clause 32(2), and the merger of the former chapters 8 and 9, were reflected, and chapter 10 would deal with the monitoring responsibilities of the Agency. The inclusion of new wording into clause 54 meant that clause 54(1)(l) could be deleted.

A DA Member noted that a submission had been circulated to him, and to some Members of the ANC, that morning, and he wanted this to be discussed. After debating on the process, and after the Chairperson noted that he had not received this document, nor had it been channelled through the Committee Secretary, Members decided that it could not be considered as a formal submission. The ACDP and DA Members raised some concerns about consistency of some clauses, in respect of two main issues. Firstly, they suggested that, wherever relevant, intention would have to be noted as one of the elements of the offences. Secondly, they wished to achieve greater consistency on the sanctions. After discussion, it seemed that Members had not shared the view that an in-principle approach to allow for the option of a fine in every matter would be adopted, and it was decided instead to go through each offence in the Bill. They agreed to insert the word “intentionally” into clauses 49(a), (b) and (c), and into clauses 36(1)(b), (2)(b), and (3)(b). It would also be inserted into clause 37, clauses 38(1)(b), (2)(b), and (3)(b), and into clause 40(3), where the word “or” also must be replaced with the word “intentionally and”. The word “wilfully” in clause 47 would also, for consistency, be replaced with “intentionally”.

The IFP suggested, and Members agreed, that clause 48 should be amended to refer to “a head or an official of an organ of state” to cover the situation where an official to whom duties had been delegated by the head of the organ of state failed then to perform those duties, and the heading was also changed.
The DA then asked if the change of the definition of “state security agency” had a bearing on clause 49, saying that if this was so, then there seemed to be inconsistency in the penalties for disclosure of classified information relating to the State Security Agency and disclosure of information relating to defence or police intelligence. It was agreed to replace reference to “state” information, in clause 49, and its subparagraphs (a) to (d), with ”classified” information. This led on to a more general discussion on balancing of sanctions, and the insertion, where appropriate, of the option of a fine. After an adjournment to discuss the offences clauses, Members agreed that in clause 44, the phrase “or to both such fine and imprisonment” would be removed, after the reference to the five year term of imprisonment. In clause 45, the option of a fine would be introduced. Clauses 47(2)(a) to (c) would not carry any option of a fine, as these set out very serious offences. One other inconsistency in wording was pointed out and corrected in relation to clause 49(b).

Meeting report

Protection of State Information Bill: Working Document
The Chairperson reminded Members that there were certain matters still outstanding in this Bill. He asked the State Law Advisors to take Members through the latest Working Document on the Protection of State Information Bill (the Bill).

Ms Carin Booyse, Deputy Chief State Law Advisor, Office of the Chief State Law Advisor, said that the latest proposals and amendments were now shown in Working Document 26. She would not take the Committee through all the numbering changes.

The definition of “state security matter” was reflected on page 21. On page 22, the new ANC proposal for clause 1(4) was reflected, together with another option.

Mr L Landers (ANC) indicated that the ANC preferred the wording of the second option.

Ms M Smuts (DA) remained opposed to any making any reference to section 5 of the Promotion of Access to Information Act (PAIA), no matter whether the words “despite” or “notwithstanding” were used. She reiterated her view that it was unnecessary to do so, and invited a “sea of Constitutional problems”.

Mr S Swart (ACDP) agreed that there did not appear to be any necessity to make reference to section 5 of PAIA. He pointed out that PAIA made no reference to classified information.

The Chairperson asked the State Law Advisors (SLAs) to incorporate the second option for clause 1(4) into the new Working Document, but to reflect that it was still subject to the objections of the ACDP and DA.

Ms Booyse continued, pointing out the changes to clause 12 (formerly clause 13) in relation to classification levels.

Ms Booyse suggested that it might be useful to provide a separate chapter for appeals, in which case there would need to be a new heading, and incorporation of clauses 31 and 32.

Members agreed.

Mr Landers noted that the ANC still had a query on the 90 day period.

Ms Booyse said that this had been raised on the previous day, and the 90-day period was provided for in relation to decisions on administrative action.

Mr Swart noted that Mr Landers had asked that a shorter period be considered.

The Chairperson thought that Mr Landers had asked for information on how the SLAs had fixed upon the period of 90 days. That question was now answered.

Mr Landers said that he could understand why a period of 90 days might be necessary for decisions in administrative actions. However, this related to an appeal following a request for access to information, which he felt was different, and he did not believe that the Minister would require three months to respond.

Mr Swart agreed with Mr Landers, and would suggest that preferably 30 days, failing which 60 days, should be substituted.

Dr M Oriani-Ambrosini (ANC) supported this too.

The Chairperson thought that this period might be too short. He asked for, and received confirmation from the SLAs, that these would be calendar days.

Members agreed to delete the period of 90 days and insert a reference to 30 days.

The Chairperson asked the State Law Advisors (SLAs) to effect this amendment.

Ms Booyse continued that clause 32(2), on page 63, had been amended. She noted the changes following the proposals to merge the former Chapters 8 and 9, and to provide a new heading for “Transfer of Records to the National Archives and Release of Declassified Information to Public”. Chapter 10 would then commence on page 67, and it related only to the monitoring responsibilities of the Agency.

Members agreed that they were in favour of this arrangement of chapters.

Ms Booyse continued that there was a reference to national security standards in clause 54(1)(l), which now set out “the procedure to be followed in terms of sections 9(1)(b) and (c)” She explained that the changes to the numbering meant that those references would need to change. She noted that the regulations were set out, and she questioned whether clause 54(1)(l) would still be required. She pointed out that the reference to the old “national standards” had now been incorporated into the wording of clause 54(4).

Members agreed that clause 54(1)(l) could be deleted.

The Chairperson asked the SLAs now to effect all the adjustments to the next Working Document.

He asked Members whether there was anything in this Working Document that was contrary to what had been agreed upon.

Mr Landers confirmed that from the ANC’s viewpoint, everything appeared to be reflected. However, he pointed out that the references to harmonisation of legislation still appeared in the Objects clause.

The Chairperson pointed out that this had not finally been agreed upon.

Mr D Maynier (DA) said that whilst the Working Document did appear to reflect what had been discussed, he wanted to refer Members to a paper circulated, earlier that day, and asked Mr Landers, whose name appeared on the distribution list, if he had had an opportunity to look at that document.

Mr Landers noted that the mere fact that his name appeared on the circulation list did not necessarily indicate that he had actually received the document. However, he questioned why this was a matter that the Committee should be dealing with.

Mr Maynier offered to take the Committee through the document, saying that it raised some issues that the Committee should consider.

The Chairperson noted that he himself did not have access to that document.

Mr B Fihla (ANC) raised a point of order. He said that it was not possible to expect the Committee to deal with all matters, on the basis that they might have been referred to one Members.

Mr M Sonto (ANC) spoke also to that point of order, and did not think that this Committee could consider document that the Committee had not seen.

Mr Landers noted that there was a process, and that process had prevailed to date. People could not simply hand out documents to Members at any time, and he pointed out that on the previous day, the Chairperson had asked a representative of the Open Democracy Advice Centre (ODAC) to stop doing just that. He said that there was no reason for any document to enjoy any special status before the Committee.

Mr Fihla said that this Committee meeting must be distinguished from a public hearing. It would be disrespectful to the Committee should anyone be allowed to circulate documents at any time.

Dr Oriani-Ambrosini wanted to make a suggestion as to how this could be dealt with.

The Chairperson interrupted him, and said that this was the function of the Chairperson.

Dr Oriani-Ambrosini rephrased that and asked that he be permitted to make a humble submission, as was his prerogative as an MP. He did not think that the origin of the document was an issue. Any MP could raise any point in his or her own name, and, irrespective of the origin of that point, it would have to be considered on its merits. He submitted that the point needed to be considered and raised appropriately once Members had a “clean” version of the Bill and it was likely that more of these points would be raised once this had been done. It was simply a matter of referencing and dealing with matters at the appropriate stage.

Ms A van Wyk (ANC) pointed out that there was a process for tabling matters, through the Committee Secretary. There was nothing that was before the Committee formally at this stage. She agreed that obviously the Committee would continue to receive comments, but whether the Committee had to allow full debate on every point raised was another matter. The Committee must determine its own process and follow the process of Parliament.

Prof G Ndabandaba (ANC) asked how relevant that document was.

Mr A Maziya (ANC) said that the Chairperson had outlined, on the previous day, how this process would unfold. There was no indication then that the Committee must consider additional submissions. He suggested that the process outlined must now be followed.

The Chairperson agreed that at some stage the Committee would have to deal with the work that it was tasked to do, and accept or reject the Bill before it. Whilst submissions may be received, this did not mean that they could be allowed to interfere with the day-to-day work of the Committee. The manner in which this matter had been raised was incorrect. Had the document been brought to the attention of the Chairperson himself, then perhaps he would have reached a different conclusion. He had no doubt that Members of either party would share the same concerns should an opposing party try to insist that every submission must be brought and debated. He asked that Members, if they wished, and if they considered that the submission had a material bearing on the Bill, should discuss it informally, and, if they agreed that the submission could markedly change the Bill, then it should be brought in the correct way to the Committee’s attention.

Dr Oriani-Ambrosini said that every Member was sitting as a political representative, and not as an individual, and although it should not ideally happen, it may happen that additional issues might need to be brought back to the Committee. He pleaded that the Members be allowed the time and space to do this.

Consistency of Bill
Mr Swart said that the Committee would now have to check the Bill for consistency. He had isolated some areas where he was concerned that there might not be full consistency. He highlighted that one instance appeared on page 84, in clauses 49(a) to (c), where he thought the word “intentionally” must be inserted. In these clauses also, he questioned whether the option of a fine should not be inserted. He had understood that the Committee had agreed that, in general, the option of a fine should be inserted into every clause where a custodial sentence was provided for, save for the espionage offence, and perhaps also the hostile activity offence.

Ms Smuts suggested that the Committee needed to check all the offences clauses. The “intentionally” references were also missing from the espionage offence.

Mr Landers suggested that Members should deal with Mr Swart’s point on page 84 first.

Members agreed that the word “intentionally” must be inserted into clauses 49(a), (b) and (c).

Ms Smuts agreed with Mr Swart that the Members had indicated that they were inclined towards wanting to specify, in respect of each crime, that intention should be an element of the offence. She noted that this had been left out of clause 36(1)(b), in relation to the making and capturing of records, and the same was true of clause 36(2)(b) and 36(3)(b).

Ms van Wyk thought that the making of a copy could only be done intentionally, so it was superfluous to include this word.

Ms Smuts said that “intentionally” referred to the knowledge that the copying of the record (for instance) would be directly benefiting a foreign state.

Mr M Nchabaleng (ANC) agreed with Ms van Wyk, saying that he thought it referred to the act of copying.

The Chairperson pointed out that it would be quite possible to make a copy of the record without actually intending to do so.

Ms van Wyk said she would accept his ruling on this.

Ms Smuts said that the same comment applied to the offence relating to the receipt of state information, clause 37.

The Chairperson allowed a short adjournment, to allow Members to discuss the wording and try to achieve some consistency.

On resumption, Mr Landers pointed out that the word “intentionally” would need to be inserted in clauses 38(1)(b) and 38(2)(b), on page 74.

Mr Swart added that it was also necessary in clause 38(3)(b).

Mr Landers agreed. He pointed out another instance where it would be required, in clause 40(3), on page 76.

The Chairperson pointed out that in this clause the word “or” had to be removed, so that the clause would read “intentionally and unlawfully”.

Mr Swart pointed out that clause 40(6) on page 78 already contained a reference to “wilfully”, which was similar to “intentionally”.

Ms Smuts asked if it was necessary to insert any reference to intention in clause 44, but Mr Swart and Mr Landers did not think that it was needed.

Mr Landers questioned whether the reference to “wilfully” in clause 47 should be replaced with “intentionally” and other Members agreed that this would be more consistent.

Clause 48
Dr Oriani-Ambrosini was concerned about the wording of clause 48. He pointed out that criminal liability could not be vicarious. Many of these obligations vested in the head of an organ of state, or an official of the state. If the obligations were delegated to someone else, who then failed to perform those functions, then the head of the organ of state could not be prosecuted. He suggested that it would therefore be more correct for the clause to be reworded to read “A head or an official of an organ of state…”

Members agreed to this suggestion.

Dr Oriani-Ambrosini said that where there was a reference to “wilfully” or “grossly negligent” behaviour by the official, the Act itself was imposing the functions.

Mr Landers said that although he could understand a possible concern that the penalty might seem disproportionate, he pointed out that the Bill imposed certain functions on the official of state. The opposition parties had questioned what the position would be in this event – specifically in relation to conducting reviews. This new offences clause now sought to address that problem. He personally thought that the sanction was appropriate.

The Chairperson noted that the penalty was not supposed to be sanctioning so much as acting as a deterrent. He pointed out that an official guilty of this offence would not actually be compromising national security.

The Chairperson asked if the heading to the clause should also be changed.

Ms Booyse said that the words “head of an organ of state” were defined. She suggested that the heading should read something to the effect of “head of an organ of state or official of such organ of state”.

Members agreed and the Chairperson asked the SLAs to effect the necessary changes.

Clause 49
Ms Smuts noted that the sanctions had now rightly been made applicable to heads of organs of states. She wondered if this had an effect on clause 49. The Committee had recently made changes to the definition of “state security matter” so that a state security matter could not be disclosed if it had been classified. However, there were still some concerns. Disclosure of a matter in relation to either defence intelligence or police intelligence would carry a penalty of five years. However, this clause – if it applied to the security services only – would now carry a penalty of ten years for the same type of disclosure. This seemed to be disproportionate with other clauses.

She also pointed to another discrepancy, asking why, if these officials gave information to a foreign state, they were liable to be jailed for 15 years, whereas the espionage offence carried a penalty of 25 years.

Ms Smuts wondered if clause 49 should not be made applicable to officials in the State Security Agency (the Agency). Without that specific wording, she thought that there was likely to be a problem. She reiterated that although the definition of “state security matter” had been corrected by the insertion of a reference to “classified information”, this still did not cure the problems with this clause. The clause should be applicable to those officials who were sworn to secrecy.

The Chairperson suggested that the word “state” on line 2 of clause 49, should merely be replaced with the word “classified”. He said that the same comment applied to the replacement of “state” with “classified” in subclauses (a), (b) and (c) as well, and on the first and fourth lines of subclause (d).

Members agreed with this.

The Chairperson confirmed that the penalty for disclosure to a foreign state should be in line with the penalty for espionage.

Ms Smuts thought that this was not quite the same. The offence of espionage carried the intention to benefit a foreign state.

Members agreed, after a discussion, that the reference to ten years should be replaced with a reference to fifteen years, and the reference to fifteen years with a reference to twenty five years, to bring the offences in line.

Mr Landers said that this applied to members of the Agency.

Ms Smuts said that she did not think that it would, and noted that she had asked for “head or official” also to be inserted in this clause.

Mr Landers argued that the reference in the clause to a “state security matter” meant that it would automatically imply that this should be an official of the Agency who was dealing with the matter.

Ms Smuts said that this may be correct, although the clause did not say specifically that it was dealing only with Agency officials.

Mr Landers argued further that the words “dealt with by the Agency” implied this.

Ms Smuts said that her concern still remained that the penalty provided for under this clause was out of line with the penalty provided for in respect of the disclosure offence.

Dr Oriani-Ambrosini noted that the purpose of the clause was to cover classified information. However, there was a distinction between classified information that did, or did not, pertain to the Agency. He thought that the question was not so much to do with the officials, but with the classified information that pertained to the Agency. He suggested that once Members had a clean version of the Bill in front of them, they could probably look at it again.

Mr Maynier outlined what he saw as the problem. If defence intelligence was disclosed, the person disclosing that would be charged under clause 43, and liable to a penalty of five years. However, disclosure of information relating to the Agency would make the person disclosing liable to a ten-year sentence, with no option of a fine. He asked what the reason was for this discrepancy.

Mr Landers said that this question seemed to presuppose that the person in defence intelligence who disclosed this information would not be charged under the Espionage Act.

Ms Smuts said that these provisions applied to “any person”, and said that Mr Landers was citing the specific case of a defence intelligence official.

Mr Maynier added that it was also possible to have a situation where a person revealed information, but with no intent to benefit a foreign state, and would be charged under clause 44.

Mr Landers pointed out that s/he could equally well be charged under one of the other offences that provided for a fifteen year period of imprisonment.

Ms Smuts still felt that the clause might be tending to move in the direction of catering for the Agency, although she did not agree that it said so.

Mr Swart said that he also had concerns about consistency in relation to the option of fines. He referred to clause 47(2), on page 83, and proposed the alternative of a fine. He wanted the ANC also to comment on this. He reminded Members that they had seemed to accept that fines would be provided for in all cases, except for the espionage offence. This was a very serious sentence.

Mr Landers suggested that it was appropriate to remove the option of a fine because the offence was so serious.

Mr Swart did not agree, and was also proposing that the option of a fine should be included for all matters, save for espionage, even when the offence was serious.

Mr Landers said that it would be a very serious matter for an official to classify information with the intention of hiding or covering up a breach of the law. He did not think it was appropriate to allow for a fine.

Mr Swart said that during the previous discussions, he had understood that Members had adopted the principle that there would always be the option of a fine stated, except in respect of the espionage offences, and possibly also the hostile activity offences.

Mr Landers noted his recollection that the matter was raised when Members were dealing with the question of minimum sentencing for the espionage offence. That was where the distinction was made in respect of that offence. Other offences did provide for imprisonment and/or a fine, but he did not think that Members had agreed that imprisonment or a fine would be applied as a general principle. He reminded Mr Swart that it was a very serious offence that was contemplated in this clause, essentially classification to hide something corrupt.

Mr Swart said that he was not only referring to clause 47 when speaking of the need for consistency. There was another example in clause 44 and 45, which referred to periods of imprisonment of five years.

Mr Landers said that perhaps Mr Swart had chosen a bad illustrative example in clause 47. The ANC was prepared to look at the option of a fine for clauses 44 and 45, but he still did not think that this would be appropriate in respect of clause 47. He suggested that, rather than adopting a blanket approach, each offence should be looked at on its own merits.

The Chairperson allowed for a further adjournment so that Members could discuss these clauses.

Mr Landers reported, on resumption, that all Members had discussed, with each other, the offences and penalties clauses.

He reported back that Members had agreed that, in clause 44, the phrase “or to both such fine and imprisonment” would be removed, after the reference to the five year term of imprisonment.

In clause 45, the option of a fine would be introduced, so that the clause read “to a fine or imprisonment not exceeding five years”

Mr Swart added that clauses 47(2)(a) to (c) on page 83 would not carry any option of a fine.

Mr Landers agreed, saying that Members had agreed that classification of information for the purpose of hiding malfeasance was very serious, and this warranted the deletion of the words “to a fine or..”

Mr Landers then pointed out one other instance of apparent inconsistency. In most clauses in the Bill, the term “prejudicial to the national security of the Republic” had been used, but clause 49(b) on page 84, the words “a purpose which is prejudicial to the security or interests of the State” had been used. For consistency, the former wording should be used.

Members noted that the SLAs had not had sufficient time to prepare the “clean” copy of the Bill, and said that they would prefer that sufficient time be allowed for proper preparation and checking.

The meeting was adjourned to 09h00 on the following morning.


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