Protection of State Information Bill: Memorandum on Objects, Adoption of Bill

Meeting report

Protection of State Information Bill: Presentation of ‘B’ version of Bill and discussion on Memorandum on the Objects of the Bill
The Chairperson expressed his thanks to the Office of the Chief State Law Advisors, specifically Ms Booyse, for her assistance to the Committee. When the Committee had last met on Friday, the Memorandum on the Objects of the Bill (the Memorandum) was outstanding. He asked Ms Booyse to advise Members of the progress.

Ms Carin Booyse, Deputy Chief State Law Advisor, Office of the Chief State Law Advisor, referred Members to the new ‘B’ version of the Protection of State Information Bill (the Bill) and specifically to the Memorandum on the Objects of the Bill (the Memorandum), which now appeared at the back of that document.

A new paragraph detailing the “Background” had been added. Six objects had been added in, which were set out in paragraph 2 of the Memorandum. The specific chapters within the structure of the Bill were summarised, with relevant information under each heading.

Ms Booyse noted that there must be a revised heading for the paragraph dealing with Chapter 2, to read “General Principles of State information”. New wording had been included in respect of Chapter 5. There was also now mention of the Classification Review Panel. She briefly outlined the content. She then noted that a word was missing from the heading of Chapter 12, which should refer to “Protection of classified information before Courts”.

Paragraph 5 of the Memorandum dealt with the financial implications for the state, and this now reflected that, in light of the establishment of the Classification Review Panel, there would be financial implications for the state, and in this regard, picking up on a comment from Mr L Landers (ANC), she noted that the word “Bill” at the end of that sentence must be revised to read “state”.

Discussion
The Chairperson asked if, apart from the technical errors noted by Ms Booyse, Members had any other suggestions on the Memorandum.

Mr S Swart (ACDP) noted that there were many changes to this from the original Memorandum. Although it did not form part of the final Bill, he did think that it would be useful to detail matters fully. He suggested, under the heading for Chapter 2, that there should be a specific reference to the other organs of state who could opt in to be covered by the Bill.

Mr D Maynier (DA) believed that Rule 243 of the Rules of the National Assembly required that the Memorandum should give an account of the financial implications of the Bill for the state. He did not think that this Memorandum complied with this requirement. Although it detailed that there would be financial implications, there was no counting of those implications. He noted that there was a very strong difference between the wording of this Memorandum and that produced in support of the Military Veterans Bill, which had set out the quantum over the Medium Term Expenditure Framework (MTEF) period. He thought that the Committee must consider this.

Ms D Smuts (DA) agreed with Mr Swart that the rest of the applications clause should be captured, and this could be easily done by reproducing the words in clause 3(2)(b) and adding them in.

She then suggested that the wording of the paragraph dealing with Chapter 7 needed to be altered, and pointed out that the word “receiving” should possibly change to “receive” or be replaced with something else of a similar meaning.

Ms Smuts agreed with Mr Maynier that expert input was required on the quantum of financial implications.

Mr L Landers (ANC) said that the DA contentions were correct to a point. Normally, when the Ministry or Department tabled a Bill which carried financial implications, those must be spelt out in clear terms. In this case, however, there was a slight difference because the Classification Review Panel (the Panel) had been created by this Committee itself. Senior Parliamentary officials had informed him that the key issue was whether the creation of this Panel was placing an undue burden on the state or the Department of State Security. The Ministry would be able to answer that question, but he did not believe that any burden was being imposed. It was, effectively, Parliament who would have to attend to the costing exercise, but it was unlikely that this Committee had the expertise to do so. The Parliamentary officials had, however, suggested that provided the Minister expressed his approval of the provisions around the Panel, and his confirmation that the Ministry would be prepared to fund this, then this would be sufficient. He suggested that this could be included in the Committee’s Report to Parliament. During the debate, the Minister could also place on record what had been said today. He did not think that there was anything that prevented the Committee from adopting the Memorandum as presently drafted.

Dr M Oriani-Ambrosini (IFP) believed that Mr Landers was correct in these assertions. Although the Parliamentary Budget Office had been established but was not fully capacitated, he thought that it would not be too difficult to provide some calculations. The cost of establishing the office and the members of the Panel could be assessed fairly easily from a comparison of the costs of similar commissions. He thought that the Bill could not be presented without complying with that requirement.

Dr Oriani-Ambrosini then raised another point. The Committee had been presented with a “section 75” Bill, but he cautioned that this seemed to be, in fact, a section 76 Bill, because the Bill made provision for archives established by provincial laws. These archives fell under the legislative competence of the provinces. There was nothing wrong with that, but he suggested that the Committee must refer to Rule 248(3) of the National Assembly Rules, and ask the Joint Tagging Mechanism (JTM) to consider this point.

Dr Oriani-Ambrosini said he had a few comments about the drafting of the Memorandum, but noted that this would not form part of the law, and that drafting styles differed from person to person.

Ms Smuts accepted Mr Landers’ points, and confirmed that the Committee itself had created the Panel. She added that now that Parliament had original budgeting and appropriate powers, it was no longer bound by appropriations tabled by the Ministry. With regard to the point raised by Dr Oriani-Ambrosini, she suggested that an appropriate body by way of comparison might be the South African Human Rights Commission (SAHRC), which had been working with five commissioners (the same number as the Panel) for some time. The functions of the Panel would probably be more restricted than those of the SAHRC, and the latter’s appropriation was not huge.

Ms Smuts said that, in regard to the tagging of the Bill, she had raised similar concerns. She would support the idea of approaching the JTM, but said that if the Ministry was to re-tag the Bill it might be necessary to have a different legislative process.

The Chairperson suggested that Dr Oriani-Ambrosini’s point be noted. He had not had sufficient time to apply his mind to this.

Mr Landers asked Dr Oriani-Ambrosini why the question of tagging was one to be considered by the Committee. Page 5 of the Bill, as originally introduced, already contained a definition of “archive” that referred to an archive established by a national or provincial law. The JTM must have taken that into account when deciding upon the original tagging.

Ms Smuts was not confident that the JTM went through every definition when it considered the Bills. She had already warned the Committee that this dimension could have serious effects. In a similar case, following a challenge on tagging, the Communal Land Rights Act (CLaRA) had been declared null and void by the Constitutional Court. She agreed with Dr Oriani-Ambrosini that the Committee should consider following the Rule 248 approach.

The Chairperson reminded the Committee that this point was raised several months previously. He had taken an opinion on it at the time, and it was confirmed to him that all aspects had been taken into account.

Ms Booyse confirmed that the tagging had looked at the whole scope of the Bill and had considered whether the Bill would substantially impact on, or affect provinces. However, she pointed out that there was no question of prescribing what the archives would have to do, as it merely provided for classification status of documents that were being transferred to those archives.

Dr Oriani-Ambrosini said that the point was valid, and where a potential problem had been raised, it should be fixed. The Constitutional test was whether the national Parliament was attempting to legislate on a subject matter which fell within the legislative competence of the Provincial Legislature. Certainly this did not arise in respect of the classification. However, the provincial legislatures could legislate for their archives, since there were archives established by provincial laws, and it was possible, for instance, that the provincial legislature may wish to legislate how their archives handled valuable (not classified) information. If he was correct in this assumption, then there might be a problem on the constitutionality.

Mr Landers indicated that he did not agree. He did not agree with taking another opinion as one had already been taken.

Ms Smuts agreed with Dr Oriani-Ambrosini that another opinion should be obtained. The original objection received from a non-governmental organisation (NGO) was premised on different grounds. The correct test was to assess where the legislative competency law. The scope of the provisions in relation to the archives had been reduced, and it may not necessarily be a problem, but she advocated that it would be safer to sort this issue out now, to avoid running into problems later.

Mr Landers said that the same problems existed when the Bill was introduced. He still did not agree that there was a need to get another opinion at this point.

Ms Booyse said that the Office of the Chief State Law Advisor had looked at this point, and stressed that no responsibility was being created in the provinces for any legislation around the classified information. When the information was sent to the archives, it would have to be dealt with in a certain way, in terms of this Bill. It was therefore merely a procedural matter that was covered.

The Chairperson said that he would apply his mind to the points raised.

The Chairperson asked Members if they wished to propose any other amendments to the Memorandum.

Mr Swart asked if the ANC had agreed with the amendments proposed in relation to the application of the Bill, and Mr Landers confirmed that the ANC was in agreement.

Ms Booyse noted that she would make changes to the grammar and insertion of necessary words, as mentioned, and she would include the changes proposed by Mr Swart, and amplified by Ms Smuts.

The Chairperson confirmed that the Memorandum would have to be attached to the redrafted Bill. He confirmed that it would not become part of the Bill, but it would serve to explain what the Bill was about.

Mr Landers formally moved for the adoption of the Memorandum of the Objects, and it was seconded.

The majority of Members formally voted to adopt the Memorandum. Dr Oriani-Ambrosini abstained from voting.

The Chairperson then confirmed that he would look into the tagging question, and would report back to Members if there was a problem.

Technical amendments to ‘B’ version of Bill
The Committee had a short adjournment to allow Members to check the wording of the ‘B’ version of the Bill.

On resumption, Mr Swart raised a question about the time periods for urgent applications mentioned in clauses 19(4)(a) and (b). He had thought – but was subject to correction – that the urgent application process should apply to the situations listed under both clause 19(3)(a)(i) and (ii). He pointed out that the Court had inherent jurisdiction.

Ms Booyse confirmed that the notes of the State Law Advisors reflected that the urgent application process would apply to the situation listed in clause 19(3)(a) that related to matters of imminent danger.

Ms Smuts wondered if the Committee was prepared to consider including both, saying that she felt it would e an improvement if condonation were permitted in both respects.

Mr Landers said that the Court would have inherent jurisdiction and could make that ruling, regardless of what was stated in the Bill. Subclause 19(4)(a) dealt specifically with what was set out in subclause (3)(a)(ii), relating to an imminent public safety danger or environmental risk. The Committee, when discussing this, had agreed that it would relate to something like a risk of explosion at a nuclear plant. On that basis, the agreement had been made to provide for condonation under 19(4)(a).

Ms Smuts still thought that it would be desirable also to allow condonation in respect of the situation described in 19(3)(a)(i).

Mr Landers pointed out that this did not indicate any urgency. Where there was a suspicion of corruption, the authorities would in any event have to have some time to investigate the matters.

Mr Swart said that the only possibility he could think of that indicated both criminal actions and urgency might be if someone engaged in criminal activity was disposing of his assets. He was more worried that by excluding the situation outlined in 19(3)(a)(i), and by confining the urgent applications to the situation set out in (ii), there was a danger that this might be interpreted to preclude the court from hearing an urgent application should it arise, in terms of (i).

The Chairperson said that this Bill was dealing with classification of information and it was unlikely that the disposal of assets would be brought into play.

Mr Maynier then referred to the last paragraph of the Preamble, commencing “aiming..” and suggested that this sentence should refer to “the national security”. He pointed out that this would be consistent, as “national security” was used throughout the Bill and was defined, whereas “security” was not.

The ANC indicated that it agreed with this proposal.

Mr Maynier noted that the heading of page 7 read “Objects of Act” and suggested that it should read “Objects of the Act”.

Members agreed.

Mr Maynier then referred to clause 12(1), dealing with classification levels. He said that the wording should refer to “ to the national security of the Republic”. A similar amendment would need to be made to clause 12(2), although it was correctly stated in clause 12(3).

Ms Smuts suggested that there were some other instances where the word “the” might also need to be inserted before “national security”.

Ms Smuts said that she was not sure of the final wording of clause 12(3). She pointed out that some queries had been raised about the levels of harm. As originally worded, this clause relied on the notion that release of classified information would result in “serious harm”, but it had been suggested that this was in conflict with the notion that release of Top Secret information would result in “serious or irreparable harm”. Because this was worded in the alternative, this meant “serious harm” or “irreparable harm and thus appeared to be in conflict with the “serious harm” occasioned by release of Confidential information. She asked why “serious and irreparable” was not inserted into clause 12(3).

Mr Landers indicated that he did not agree.

The Chairperson thought that there was a difference between “demonstrable harm” (for Confidential information) and “serious or irreparable harm” (for Top Secret information) .

Ms Smuts said that the difficulty lay in the phrase “serious or irreparable”. The test in clause 12(3) should be “irreparable harm”. Demonstrable harm was required for all the tests.

Mr Landers said that this debate had been held before, and this suggestion merely amounted to another change of the wording. This clause, as printed in the Bill, reflected the wording suggested by Adv van Rooyen.

Ms Smuts said this had nothing to do with Adv van Rooyen’s argument, which had resulted in certain superfluous words being taken out of this definition.

The Chairperson noted that this clause had been debated on numerous occasions. A vote was taken on the clause, as it appeared here, on the previous Friday. He believed that Members must now move on.

Dr Oriani-Ambrosini noted that he had agreed with all the points raised, but wished to question whether “categorisation of state information”, which appeared in the definition section, on page 5, appeared anywhere else in the Bill.

Ms Booyse said that he was correct. This phrase had been deleted during the process when two clauses had been combined.

Members agreed that the entire definition of “categorisation of state information” could be deleted.

Ms Booyse noted that she had also picked up some technical errors, where amendments were made that the printers had not incorporated. She asked for permission to effect these technical corrections, where they appeared.

The Chairperson agreed, and noted that he had picked up one example. The phrase “alteration, destruction or loss” (of valuable information) should appear in a consistent manner throughout the Bill. Similarly, he noted that the words “unlawful disclosure” would have to be used whenever there was reference to the disclosure of sensitive information. He also noted that the word “alteration” had been omitted from the Title of the Bill, on page 2. There may be some other instances. He agreed that the State Law Advisors should be given authority to change any patent errors.

Mr Landers put a formal motion that the amendments just proposed be accepted, and this was seconded and accepted unanimously by Members.

The Chairperson also noted that the State Law Advisors would be given authority to make those necessary changes.

Formal adoption of Bill
Mr Landers noted that the ANC was ready to adopt the Bill. He put a formal proposed, seconded by Mr B Fihla (ANC) for the adoption of the Bill, with the amended Memorandum and other amendments.

Seven ANC Members voted in favour of the Bill, and four opposition Members (two DA, ACDP and IFP) voted against the Bill.

The Chairperson noted that the Bill would be referred to the House after the formalities had been completed.

Committee Report on the Bill
The Chairperson noted that the Committee Report on the Adoption of a Bill would normally be read out in the meeting, and he proceeded to do so. He said that the ad hoc Committee, having considered the subject of the Bill, had then considered the Memorandum and had noted that, given the redrafting of the Bill and the establishment of the Classification Review Panel, there would be financial implications. A number of amendments and alterations were effected to the Bill, which made it necessary for the Bill to be redrafted. The Committee would now submitting a copy of the redraft, as well as the original Bill, in support of its assertion as to the number of amendments effected, together with this Report.

Dr Oriani-Ambrosini said that Rule 250(3)(e) of the National Assembly Rules said that the Report “must” include minority views, when the Report was not unanimous. He requested the inclusion of a minority report, reading along the lines of “The minority parties noted that the Bill lacks defences in respect of (1) erroneous classification; (2) public interest defence (3) the public domain defence. The parties thought that the Bill had been erroneously tagged. It also believed that the Bill carried excessive penalties in respect of the offences provided in the Bill”.

Ms Smuts said that she had been involved in ad hoc committees in the past, and her views had not been included in the Report. However, if it was correct that the minority views should be reported, then she asked that the Report should reflect that the DA, ACDP and IFP had voted against the Bill. The opposition parties would in any event be outlining their objections in the debate in the House.

The Chairperson read out the Rule. It stated: “In its Report, the Committee must, if this is not a unanimous Report, specify in which respect there was not consensus and (2) in addition to the majority Report, express the views of a minority in the Committee”.

Ms A van Wyk (ANC) said that she did not believe that this Rule referred to Bills, but to Committee Reports.

Mr Landers also thought that this related to the deliberations of a Portfolio Committee on its oversight work in general – such as a visit being paid to an entity – where the minority view would be recorded. However, the Rules did not to his knowledge provide for a minority view when the Committee considered a Report on a Bill.

Dr Oriani-Ambrosini said that the Rule read out appeared under the heading “Bills”. The Rules did not allow the recordal of minority views in any Report, other than a Report dealing with a Bill. Oversight and investigative reports did not have this requirement. It was, in those cases, the prerogative of the majority party to draw the Report reflecting its views. However, this Rule was the implementation of section 57(2)(b) of the Constitution, which required that protection be extended to a minority party under the Rules. He thought that there was surely no harm in adding three paragraphs to the Report and he felt that the majority party should be fear the influence of those small arguments.

Ms Smuts noted that this Rule also dealt with tagging and she thought that this may have resulted in some loss of context.

The Chairperson noted that he had a written submission in front of him, detailing the clauses in which votes had been recorded against the clauses on the previous Friday. He read these out, summarising the proposals that were made in respect of clauses 1(4), 2(j), 4, 15, 18(c), 43 and 44. [PMG note: the Chairperson did not mention clause 38, where a vote against the clause was recorded by the IFP, with other opposition parties abstaining]. He thought that it was sufficient to record this in the Report, since it captured what had taken place. He did not think it was necessary to record every proposal, but suggested that a summary of the clauses opposed should be captured.

Ms Smuts agreed with this and thanked the Chairperson for the suggestion.

Dr Oriani-Ambrosini said that this ruling was to the effect that the minority views would be accommodated and complied with Rule 250. He was satisfied with the language suggested.

Members voted unanimously to accept the Report.

The Chairperson noted that the Report, once finalised, would be sent to the House. No date had yet been set for the debate. He would approach the Programming Committee on the following Thursday.

Motion of Desirability
The Chairperson read out the Motion of Desirability, and noted that this also had to be passed by the Committee.

The majority of Members indicated their acceptance of this, although the IFP abstained from voting.

Ms Smuts commented that she was supporting the Motion of Desirability because of the need to repeal the apartheid legislation.

Mr Maynier said it was common cause that there were concerns about the constitutionality of the Bill just passed. He did not want to open this up for discussion, other than to mention his view that the certification of constitutionality by the Office of the Chief State Law Advisor may not be sufficient, given the amendments that had been effected. He noted that Mr Landers had indicated that some consideration might be given to a mechanism under which this Bill could be forwarded to the Constitutional Court for certification and he asked Mr Landers to explain what he might have had in mind.

Mr A Maziya (ANC) raised a point of order, saying that the Committee had finished voting on the Bill and the points raised were no longer relevant.

The Chairperson commented that the Committee had, in his view, taken all necessary steps to ensure that this Bill would pass constitutional muster. There were still some people who held different views on specific matters, but proposals had been taken by the Committee and in many cases amendments had been made. Most, if not all the amendments, were based on legal advice, and he saw no reason now to burden the establishment with suspicions that the Bill might be unconstitutional. The necessary adjustments had been done. The Committee should not be scared by any threats about unconstitutionality, raised either inside or outside the Committee. Those who felt that the Bill was unconstitutional had their rights to take the matter further, and approach the Court. This Committee merely needed to ensure that it was not, through negligence, providing any basis for the Bill to be challenged. He believed that the ad hoc Committee had been responsible, had taken sufficient time, and had ensured that people’s views were not suppressed. Despite the fact that some people had been “awkward” to deal with, he believed that many useful proposals had been made, including by those who had reservations about the Bill.

Mr Swart agreed that all parties retained their rights to petition the President or approach the Constitutional Court.

Mr Swart wanted to express his thanks for the manner in which the Chairperson had chaired the Committee, under difficult conditions, for over a year. Parties had in many cases differed sharply on a number of issues, but the Bill had not been rushed or pushed through the process, and there had been considerable time spent on it. He also wished to thank the ANC, and Ms Booyse for her incredibly good and hard work, the members of the media and the Committee clerks.

Ms Smuts thanked the Chairperson for his patience and his good humour through a difficult process. It had been a pleasure to serve under him. She also extended thanks to Ms Booyse and Mr Makabeni from the Office of the Chief State Law Advisor, and Mr Vanara, Senior Parliamentary Legal Advisor. She also suggested that the catering support staff be thanked.

Dr Oriani-Ambrosini shared these sentiments, but would not repeat them all. This had been a long and controversial process. In addition to thanking the Chairperson, he also wished to thank Mr Landers for his leadership of the ANC delegation. Although parties had disagreed on positions, the process itself had not been disagreeable, and he respected and thanked the ANC for giving space to the opposition to express its views. It had been a long debate, and, given the nature of the Bill, the controversy would continue. However, this was a Bill that was considerably better than it would have been without the ANC taking leadership in allowing substantial redrafting.

Mr Landers wanted to associate himself and his colleagues with the views, and was particularly grateful to the Chairperson for his leadership and patience. The ANC believed that the Bill was constitutional, although it recognised the rights of others to hold different views.

The Chairperson said that this had not been an easy process, involving tremendous amounts of work, late nights and considerable stress. He had found Members to be reasonable, even when they may have appeared to be otherwise, and the atmosphere and spirit of the meetings was good and constructive. He expressed thanks to all who had sacrificed their time, day after day, mentioning in particular the Committee staff and the State Law Advisors, who had provided invaluable assistance, providing their contributions and legal opinions within a very short timeframe. He also noted the presence of Mr Dennis Dlomo, Advisor to the Ministry of State Security, who had rendered competent advice when asked. The number of media and visitors constantly in attendance also was reflective of the public interest.

The meeting was adjourned.