Protection of State Information Bill: Amendments proposed by IFP

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

16 November 2011
Chairperson: Mr C Burgess (ANC)
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Meeting Summary

The Chairperson noted that the Committee had been reconstituted, by vote in the National Assembly on 15 November 2011. The Protection of State Information Bill (the Bill) was referred back to the Committee, under Rule 254(5), for consideration of 123 amendments proposed, on 13 September 2011, by Members of Parliament M Oriani-Ambrosini (IFP), A Alberts (FF+) and J van der Merwe (IFP). The amendments related to 51 of the Bill’s clauses.

Dr M Oriani-Ambrosini was given the opportunity to motivate the amendments in general, and it was noted that they had been widely-publicised and discussed since September. Essentially, these represented what the IFP would like to see in an ideal Bill, but it recognised that some of the matters may not be agreed to by the ruling party. Some were more substantive than others, such as the public interest and public domain issues, the inclusion of Provincial Archives in the Bill, which he believed could be challenged for non-compliance with the Constitution, the duty placed on citizens to return classified documents in terms of clause 15, and the penalties. Other proposals were made to tighten and improve the wording and were of a more technical nature. Members had already identified, in earlier discussions, the possibility that classification could be abused and for this reason he suggested that the Classification and Review Panel should further be supplemented with a Right to Know Commission, a private body, which could operate alongside the Panel. Further amendments were proposed to limit the powers of the Minister to apply the Bill to organs of State other than those in the security or intelligence arena, and to promote the culture of transparency and openness.

The DA and ACDP indicated that whilst they accepted the decision of the Speaker to refer the amendments to the Committee, they did not believe that this was correct, because Rule 254(4) stated that no amendment that had the same effect as an amendment previously proposed and discussed by a Parliamentary Committee may be placed on the order paper. The ACDP had, for this reason, withdrawn some amendments that it had wished to propose on the public interest defence. They were of the view that the proposals were in conflict with the Rules. The DA indicated that the debate in the House had been useful, and there was still a possibility of raising issues through the NCOP process and informal discussions that parties would still hold, which could take forward the hard work already put into the Bill.

The Chairperson put each of the proposed amendments, under each of the clauses, as set out in the Order Paper of 15 November, to the Committee. Where Dr Oriani-Ambrosini asked to motivate them further, he was given the opportunity to do so. Notwithstanding this, none of the proposals found support from other Members, and each of the proposals was, after being put to the vote, rejected by the majority of Members. Only the IFP voted in favour of accepting those amendments. There were no abstentions. The Committee summarised, and passed a resolution, that the amendments were rejected altogether, and would meet on the following day to adopt its Report.


Meeting report

Protection of State Information Bill
The Chairperson welcomed Members to the second session dealing with the Protection of State Information Bill (the Bill). On the previous day, the Bill had been referred back to the Committee under rule 254, and a resolution was taken that the Ad Hoc Committee be reconvened, with the same Members and Chairperson. The reason for sending back the Bill was that six days after the redrafted Bill was published, on 13 September, Hon A Alberts (FF+), Dr M Oriani-Ambrosini (IFP) and Mr J van der Merwe (IFP) had tabled a document in which they proposed 123 amendments to the Bill passed, which appeared on the ATC on 13 September. Some people might consider that unfortunate, considering that at least one of those proposing the amendments was a Member of this ad hoc committee and had participated in the voting on the Bill on 5 September. However, the Speaker had exercised his powers under Rule 254(5), and the Bill was accordingly sent back to this Committee to consider the amendments.

He reminded Members that the Bill, as it stood, had 57 clauses. Although there were 123 amendments being proposed, they related to 51 of the clauses of the Bill. When the amendments appeared in the Order Paper of Tuesday 15 November they now appeared as amendments proposed by Dr Oriani-Ambrosini, with Mr Alberts and Mr van der Merwe no longer appearing as parties to the process. The amendments that appeared on 15 November were in fact circulated, in the same form, to Members on 19 September 2011. They had also been the subject matter of many media reports. He hoped that everyone had managed to familiarise themselves with those.

The Chairperson proposed that the Committee should deal with the amendments in the same way as Members had dealt with the Bill. The clauses that were sought to be amended would be put to Members and if anyone felt that the amendments should be adopted, they would be discussed and voted upon.

He asked Dr Oriani-Ambrosini to speak to the amendments. They were well-known, had been well-distributed and had been a topic for discussion since mid-September. He did not think that it was necessary to listen to the motivation and reasons in full, as political matters could be discussed outside the meeting. He intended to give ten minutes to Dr Oriani-Ambrosini to motivate these proposals, and if there was anyone else on the Committee who wished to speak they would be given the opportunity to respond. He asked if Dr Oriani-Ambrosini was still intending to proceed with all amendments, and he asked for clarity on this point. He would not like to go through an unnecessary process.

Dr Oriani-Ambrosini’s motivation
Dr Oriani-Ambrosini appreciated the courtesy shown by the Chairperson, as he was aware that this was not a popular move.

In relation to the amendments, he noted that he was not sure whether he was in control of the amendments, now that they had been referred by the National Assembly to the Committee. They had been published in his name on account of the rule being challenged for lack of precedent, but they were supported also by Hon Alberts and Hon van der Merwe, who had raised objections to the fact that their names were no longer objected.

He said that all of these proposed amendments reflected matters of substance and his party wanted to pass the legislation with the amendments included. However, it recognised the ANC mandate to govern, so some of the amendments were “wish-lists” and were less important than others. For instance, he noted that he had made proposals in relation to the wording of the Bill around Provincial Archives, because the Bill, as currently worded, sought to legislate on a matter of exclusive provincial competence, and could be challenged on constitutionality, on that basis. Others matters of considerable importance were the public interest defence, which was now rephrased in a matter not previously considered, and the public domain defence. There were qualifications on the duty of a citizen to return classified documents that came into his or her possession, under clause 15, and some on the penalties. These were issues that were of vital importance, not just to him personally, or his party, but to all South Africans. If those aspects were corrected, he would be prepared to negotiate on some of the more technical proposals, which, although they did not address matters of as much significance, nonetheless attempted to make the Bill as good as possible.

He asked that the Committee should proceed to deal with the items mentioned. He was not sure whether he had the power to do so, but he could more easily suggest which of the proposals could be withdrawn. Every Member would negotiate with the best possible intentions, and he would follow this procedure.

Dr Oriani-Ambrosini said that all Members had identified that there was a problem with the original Bill and that classification could be abused. The ANC had proposed a solution to the problem, to appoint an organ of state, the Classification and Review Panel – which resulted in one branch of the State controlling others. He would like to supplement this with a Right to Know Commission, which should operate alongside the Classification and Review Panel, but it would be drawn from a different milieu. Many commissions were not performing as they should, and there was too high a risk in simply appointing another. He suggested the Commission he proposed would not rely on public financing, would be vetted by the State Security Agency, and would have the same guarantees but was less likely to have the problems of other non-functioning commissions in the State Structure.

He did not want to waste the time of the Committee. He urged that all amendments were valuable. He agreed that they had been available and under discussion for a while. It was unheard of in any Parliamentary practice that any piece of legislation would not be presented before being debated. The rationale for each amendment was different, according to the amendment. Some were self-evident and he did not think that he needed to present on them specifically, but others were not, and he did not think that it would be consistent with Parliamentary practice merely to look at the text and vote without the benefit of some sort of deliberation. He pleaded, therefore, that the Chairperson should not curtail the customary presentation on language issues, and the right of all members to debate the issues and proposals. It was necessary to form opinions here, not in study groups, and each Member was entitled to address an opinion as a matter of conscience.

Discussion
Ms M Smuts (DA) said that the DA accepted the decision of the Speaker. The DA had studied the proposals, and would not be supporting them. The DA was also not interested in dealing with some on the offer of supporting some, with others perhaps to be withdrawn.

Ms Smuts noted that she had gained the impression that there was a genuine interchange of ideas in the House, and an indication of the possibilities that were still ahead. She hoped that the Members of this Committee could continue discussions, informally, on changes that could be made. She noted that no doubt the ANC would be holding discussions with trade unions. When the Bill moved to the NCOP it was the hope of the DA that further improvements could be discussed during that process, which could take forward the hard work already done on this Bill.

Mr S Swart (ANC) commented on Rule 254. The ACDP had originally sought to use this Rule to introduce a proposal in relation to the public interest defence, using similar wording as that put forward to the Committee. However, the ACDP had then studied Rule 254(4), said that no amendment that had the same effect as an amendment previously proposed and discussed by the Parliamentary Committee may be placed on the order paper. The ACDP had therefore withdrawn its proposed amendment. He believed that many of the proposals now made were in conflict with the rules.

He added that the ad hoc Committee had sat laboriously and gone through these matters. Dr Oriani-Ambrosini had presented lengthy submissions and had also requested a separate meeting with the ANC to present more submissions. He was therefore surprised that yet more matters were being proposed. There was still the NCOP process, where the IFP was represented, to deal with matters, as well as the opportunity to petition the President. There was a full debate on the issue on the previous day. The ACDP would not be supporting the amendments.

Mr L Landers (ANC) proposed that the Committee should proceed.

The Chairperson noted that amendments were usually presented by a proposed and a seconder. Normally, if there was no seconder, the amendments would not be put to the vote. However, he did not want to deal with that aspect now. The amendments had been referred to the Committee by the House, and he suggested that it be regarded as a given that the amendments were therefore properly before the Committee. It seemed, from the statements made by the Committee, that Dr Oriani-Ambrosini would not be likely to get a proposer for each of the amendments proposed.

The Chairperson said that in regard to the request that some matters be motivated, it was a question of opinion that some might need motivation and others not. He commented that if the amendments were so complex, perhaps they should not have been proposed in the first place. Amendments should be able to be understood in the context in which they were motivated in the first place. He thought that no further motivations should be allowed unless Dr Oriani-Ambrosini could come up with exceptional reasons why they should be allowed.

The Chairperson noted that some of the amendments had been discussed, although they appeared in a slightly different form. Dr Oriani-Ambrosini himself had mentioned the matters of public interest and public domain defences. For the purposes of what was to be done here, Members should not worry whether matters raised were new or old amendments.

The Chairperson noted that Dr Oriani-Ambrosini was not calling for any amendments on clauses 8, 11 46, 48, 56 and 57.

He asked that Members refer to the redrafted Bill and then refer to page 634 of the ATC, where the amendments were set out. He intended to go through the ATC, referring to each clause in turn, and would ask Members whether they wished to approve the amendments. He reminded Members that there was no proposed and seconder for the proposals.

Clause 1
The Chairperson put the question whether the Members wanted to amend Clause 1 at all.

Dr Oriani-Ambrosini noted that there were four different amendments under this Clause. He submitted that each of the amendments must be voted on, as there were different amendments for different purposes.

Dr Oriani-Ambrosini thought that the Committee needed to debate the amendments, and submitted that each of the amendments had to be put, and not whether the clause should be amended.

The Chairperson thought that perhaps Dr Oriani-Ambrosini may have misunderstood what he had suggested.

Mr Landers said that it was desirable for the Committee to find a process that moved smoothly and quickly. He suggested that there was no harm in the Chairperson putting each amendment to the Committee.

The Chairperson then asked that the views of the Committee on each of the amendments in turn be recorded. He noted that there were no alternatives being proposed to any of the amendments proposed by Dr Oriani-Ambrosini. Members should therefore merely vote on the amendments put by Dr Oriani-Ambrosini.

In respect of amendment 5, Dr Oriani-Ambrosini suggested that this should stand over, until his proposal for a new clause to support the “Right to Know Commission” had been fully motivated (as proposed by his proposed new Clause 31).

The Chairperson pointed out that unless there was a seconder for Dr Oriani-Ambrosini’s proposal that the matter stand over, his request that it stand over could not be considered. Nobody seconded this, and according the matter was put to the Committee for consideration.

Dr Oriani-Ambrosini asked for the opportunity to motivate the seventh proposal under this clause, saying that it was a fundamental issue that the word “must” should be substituted with “shall”. The two words carried different meanings and implications.

The Chairperson put each of the proposals under clause 1 to the vote.

The majority of Members voted to reject the amendments, with only Dr Oriani-Ambrosini voting in favour of the amendments.

Clause 2
The Chairperson put each of the proposals under clause 2 to the vote.

The majority of Members voted to reject the amendments, with only Dr Oriani-Ambrosini voting in favour of the amendments.

Clause 3
The Chairperson put each of the proposals under clause 3 to the vote.

Dr Oriani-Ambrosini asked for the opportunity to motivate his second proposal under this clause. It sought to limit the powers of the Minister, and was intended as an additional check and balance. This related to the ability of the Minister to seek classification in respect of other organs of state. It was not something that had been debated previously.

The majority of Members voted to reject each of the amendments, with only Dr Oriani-Ambrosini voting in favour of the amendments.

Clauses 4, 5, 6
The Chairperson put each of the proposals under these clauses to the vote.

The majority of Members voted to reject each of the amendments, with only Dr Oriani-Ambrosini voting in favour of the amendments.

Clause 9
Dr Oriani-Ambrosini noted that the first proposal under clause 9 was once again the suggestion to substitute the word “must” with the word “shall.” He thought that it was not necessary to motivate it each time, but the same reasons applied to this proposal.

The Chairperson insisted that the Committee must vote on every proposal.

The majority of Members voted to reject all amendments to this clause, with only Dr Oriani-Ambrosini voting in favour of it.

Clause 10
The Chairperson put each of the proposals under clause 10 to the vote.

The majority of Members voted to reject each of the amendments, with only Dr Oriani-Ambrosini voting in favour of the amendments.

Clause 12
Dr Oriani-Ambrosini asked for the opportunity to motivate the insertion of the additional subclauses under clause 12. He noted that this mirrored the earlier proposals of the DA, worded in a different way.

The Chairperson put each of the proposals to the vote.

The majority of Members voted to reject the amendment, with only Dr Oriani-Ambrosini voting in favour of the amendments.

New Clause – numbered as new clause 13
Dr Oriani-Ambrosini said that this clause was intended to ensure that classification of information could no be upgraded. This was supportive of the principle that documents with a lower security clearance should not subsequently be upgraded so that they would be restricted in future to knowledge by a smaller category of people. The second portion of the new clause stated that information shall be deemed in the public domain when it was capable of being accessed by persons who, once the information was classified, would not be allowed to access it.

The Chairperson put the new clause to the vote.

The majority of Members voted to reject the new clause, with only Dr Oriani-Ambrosini voting in favour of the amendments.

Clauses 13, 14,
The Chairperson put each of the proposals under the clause to the vote.

The majority of Members voted to reject each of the amendments, with only Dr Oriani-Ambrosini voting in favour of the amendments.

Clause 15
Dr Oriani-Ambrosini noted, in respect of his second proposal under clause 15, that it was a necessary corrective measure to ensure that the obligation on the public to bring back a document would not result in a member of the public being convicted for what he or he was required to do.

The Chairperson put each of the proposals under the clause to the vote.

The majority of Members voted to reject each of the amendments, with only Dr Oriani-Ambrosini voting in favour of the amendments.

Clauses 16, 17,
The Chairperson put each of the proposals under these clauses to the vote.

The majority of Members voted to reject each of the amendments, with only Dr Oriani-Ambrosini voting in favour of the amendments.

Clause 18
The Chairperson put each of the proposals under the clause to the vote.

The majority of Members voted to reject each of the amendments, with only Dr Oriani-Ambrosini voting in favour of the amendments.

Clause 19
The Chairperson put each of the proposals under the clause to the vote.

The majority of Members voted to reject each of the amendment, with only Dr Oriani-Ambrosini voting in favour of the amendments.

Clauses 20, 21, 22
The Chairperson put each of the proposals under these clauses to the vote.

The majority of Members voted to reject each of the amendments, with only Dr Oriani-Ambrosini voting in favour of the amendments.

Clause 22
Dr Oriani-Ambrosini asked to motivate the eighth proposal under this clause. This sought to insert an extra clause which would ensure that the certificate shall not be unreasonably withheld, withheld for political purposes, or withheld for any reason other than national security. He noted that currently, no reasons were given for withholding a clearance certificate.

The Chairperson put each of the proposals under these clauses to the vote.

The majority of Members voted to reject each of the amendments, with only Dr Oriani-Ambrosini voting in favour of the amendments.

Clauses 23, 24, 25, 26, 27, 28, 29, 30
The Chairperson put each of the proposals under each of these clauses to the vote.

The majority of Members voted to reject each of the amendments, with only Dr Oriani-Ambrosini voting in favour of the amendments.

New Clause on page 643 of Order Paper
The Chairperson did not think that the different subclauses of the new clause needed to be dealt with separately.

Dr Oriani-Ambrosini requested the opportunity to make a short presentation, and noted that this new clause was proposed in order to set up a Right to Know Commission. It would be appointed by organs of civil society selected by the Portfolio Committee on Justice and Constitutional Development, on the basis of public inputs. The powers of the Commission were set out, as well as its composition. The members would have to be security-cleared by the State Security Agency, and could be removed, for good cause shown. No access to classified information could be withheld from this Commission, on any ground. He submitted that this would be a strong guarantee of the country’s commitment to “moving forward on the frontiers of freedom”.

The Chairperson put this new clause to the vote.

The majority of Members voted to reject the new clause, with only Dr Oriani-Ambrosini voting in favour of the amendments.

Clauses 31, 32, 33, 34, 35
The Chairperson put each of the proposals under each of these clauses to the vote.

The majority of Members voted to reject each of the amendments, with only Dr Oriani-Ambrosini voting in favour of the amendments.

New Clause 36 and New Clause 37 on page 646 of the Order Paper
Dr Oriani-Ambrosini said that the purpose of the new clauses was to give the President the power to promote transparency, by granting Presidential honour to anyone who had distinguished himself in promoting transparency, accountability and free access to information within government. This proposal carried no cost implications. It would move significantly to shedding light on the secrecy apparatus. The new clause 37 was also aimed at promoting transparency, by establishing a method by which members of the public could communicate with the President to reveal any deviant conduct by the State Security Agency or its members.

The Chairperson put the new clause 36 to the vote.

The majority of Members voted to reject the new clause, with only Dr Oriani-Ambrosini voting in favour of the amendment.

The Chairperson put the new clause 37 to the vote.

The majority of Members voted to reject this new clause, with only Dr Oriani-Ambrosini voting in favour of the amendments.

Clause 36
The Chairperson put each of the proposals under clause 36 to the vote.

The majority of Members voted to reject each of the amendment, with only Dr Oriani-Ambrosini voting in favour of the amendments.

Clause 37
Dr Oriani-Ambrosini asked for the opportunity to motivate the third proposal on clause 37.

Dr Oriani-Ambrosini suggested that the reductions of penalties and sanctions were the same ones that the DA had previously requested. He was surprised that the DA was voting against them.

Ms Smuts said that these matters had served before the Committee. They should not have been tabled again, as set out earlier by Mr Swart.

Dr Oriani-Ambrosini said that this point should have been raised in the House.

The majority of Members voted to reject the proposals, with only Dr Oriani-Ambrosini voting in favour of them.

Clauses 40, 41, 42, 43, 44, 45, 47, 49
The Chairperson put each of the proposals under each of these clauses to the vote.

The majority of Members voted to reject each of the amendments, with only Dr Oriani-Ambrosini voting in favour of the amendments.

New Clauses 50 to 53

Dr Oriani-Ambrosini requested the opportunity to make a presentation. It was possible that it was correct that these proposals should not before the Committee, but the National Assembly was the only entity that could determine what was, or was not out of order. He told Members that the proposals he had made for the new clauses 50, 51, 52 and 53 presented the perfect opportunity to fix the major problems with the Bill. He urged that the proposals covered what the public wanted. This was the opportunity for the Committee to turn this very controversial Bill into one that was passed on consensus. He did not think that this was a bad Bill, but it was perceived as such in the public domain. He again urged Members to seize the opportunity that his proposals had presented, stressed that it was not pleasant for him to be in the position where he found himself, but that, putting all personal matters aside, they should ac positively. He thought it did not matter that these proposals were raised previously.

The Chairperson put each of the new clauses to the vote.

The majority of Members voted to reject each of the new clauses, with only Dr Oriani-Ambrosini voting in favour of the amendments.

Clause 50
The Chairperson pointed out that Dr Oriani-Ambrosini was suggesting that clause 50 in the Bill be removed.

The majority of Members were not in favour of removing or replacing clause 50, with only Dr Oriani-Ambrosini voting in favour of removing clause 50.

Clauses 51, 52, 53, 54, 55
The Chairperson put each of the proposals under each of these clauses to the vote.

The majority of Members voted to reject each of the amendments, with only Dr Oriani-Ambrosini voting in favour of the amendments.

The Chairperson noted that the Committee was not, under the Rules, entitled to consider any further proposals. None of the amendments proposed by Dr Oriani-Ambrosini had been approved by the Committee. However, any Member had the right to propose anything that he or she wished. He believed that Dr Oriani-Ambrosini had been given a fair opportunity to deal with the matters.

The Committee now needed to present a Report to the House. He asked that this be approved on the following day. The Committee must report back to the House on 21 November. He proposed that the Committee should merely draft a simply motion to say that the Committee had looked at all the proposals on the Order Paper and had rejected them.

A motion to this effect was proposed by Mr L Landers and seconded by Ms M Smuts. Only Dr Oriani-Ambrosini voted against that motion.

Dr Oriani-Ambrosini thought that the Report must for the record, reflect that each amendment was voted upon, rather than suggesting that the amendments were dealt with in a composite fashion.

The Chairperson agreed. The final proposal put forward by Mr Landers was merely to supplement that.

The meeting was adjourned.




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