Protection of State Information Bill: NCOP proposals accepted

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

21 April 2013
Chairperson: Mr C Burgess (ANC)
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Meeting Summary

The Chairperson reminded Members that at the last meeting they had received a presentation on the Protection of State Information Bill and hoped that Members had now had a chance to go through the amendments in detail. He noted that at the last meeting Dr M Oriani-Ambrosini (IFP) who was not present at this meeting, had raised his concerns whether Rule 270 conflicted with the Constitution, and questioned if the Committee was empowered to reconsider the entire Bill. The Chairperson, Mr Landers of the ANC and Ms Smuts of the DA agreed that it was their interpretation that this would in fact be the case, and indeed it was probably not possible to consider the amendments out of the context of the whole Bill. The ANC formally proposed that all proposals for amendment emanating from the NCOP should be accepted and incorporated into the Bill. The DA representative agreed that the changes were good, but wanted to reconsider two clauses in particular, on which it suspected that the NCOP may have erred. In clause 34, the question was raised whether the words “to the detriment of the national security of the Republic” should be added, and in clause 36, it was proposed that the phrase “that would prejudice the national security of the Republic” should be inserted not only into subclauses (1)(a) and (b) but also into subclauses (2)(a) and (b) and (3)(a) and (b). The ACDP supported these proposals. This party appreciated the proposals on clause 43 and 45 in particular, and the addition of references to the Labour Relations Act and National Environmental Management Act. However the point was raised that the use of the word “innovations” in clause 3(b) might not be the best, and perhaps another word could be found.

The DA then requested permission to reiterate its concerns about the Bill as a whole, and noted that it remained of the view that the Bill confused security information, which warranted classification, and valuable state information which should remain under the purview of the National Archives and Records Act alone. The fact that the Bill was attempting to legislate for this was not only constitutionally incorrect, but it was considered that the Bill had been incorrectly tagged as a section 75 bill.

The ANC did not agree with the proposals made by the other parties. All parties were then asked to vote upon whether the proposals of the NCOP should be incorporated into the Bill, and parties unanimously agreed that they should since they improved the Bill. The meeting was adjourned so that the C-version of the Bill could be prepared for voting, but when it was not available by 14:00, the meeting was adjourned until the following day, when the Committee would finalise the voting on the Bill, and the Committee’s Report. The matter was due to be debated in the House on the following Thursday. 

Meeting report

Protection of State Information Bill: NCOP Proposals
The Chairperson noted apologies from Mr Coetzee and Mr Nchabaleng. He noted the presence of the Minister of State Security and officials from his office, as observers.
Mr S Swart (ACDP) noted that Dr M Oriani-Ambrosini (IFP) was under medical treatment at the moment.

The Chairperson noted that this was now the third meeting since Parliament had referred the Bill back from the NCOP, and reminded Members of the presentation from the Office of the Chief State Law Advisor taking the Committee through the amendments.

A concern had been raised by Dr Oriani-Ambrosini, which was not shared by other Members, whether Rule 270 was in conflict with the Constitution. Mr Ntuthuzelo Vanara, Parliamentary Legal Adviser, noted that he was not instructed to deal with that aspect and could not speak to this specifically at that meeting.

The Chairperson said that whilst he did not want to get into a long discussion, Section 75 of the Constitution noted that when the Bill was referred back to the NA, it must reconsider “the Bill” and any amendments. One of the subsections of the Rule referred to “relevant amendments” and the question was whether there was any conflict. He had discussed the matter with other legal advisors, and had re-considered the matter himself, and he believed that the question was fairly simple. There was no reason why this Committee could not consider the whole Bill, and indeed it was probably not possible to consider the amendments out of the context of the whole Bill. The amendments had been circulated timeously, and the Committee was fully aware that it needed to consider the original Bill, the report of the NCOP, containing their recommendations (as the NCOP could not change the Bill). All Members had had plenty of time to apply their minds, and he asked anyone who considered that there was not sufficient time to raise that point now. He would like to hear the thoughts of Members.

Ms M Smuts (DA) recalled that it was actually Mr L Landers who raised section 75 of the Constitution, and she thought that Mr Vanara would give an opinion on that. However, she shared the views of Mr Landers and the Chairperson views and thought that Rule 270 narrowed the Constitutional requirement, and that it must be possible to reconsider the whole Bill.

Mr L Landers (ANC) agreed but added that the ANC Members had applied their minds to every amendment coming from the NCOP, in relation to each clause, and there had already been lengthy and detailed discussions on the Bill. The ANC formally proposed that all the amendments from the NCOP, as placed before this Committee, should be accepted.
The Chairperson sought clarified that the ANC wanted those proposals to be incorporated into the Bill, as the work of this Committee.

Ms M Mentor (ANC) seconded Mr Landers’ proposal.

Ms Smuts said that the changes were excellent but there were two clauses in particular on which she wanted to comment. She had the impression that perhaps the NCOP may not have carried through their own intentions on these clauses.

Firstly, in relation to the clause now numbered clause 34 (originally clause 36), she did not understand why the same changes had not been made as were effected to clause 35. Clause 34 still read that the offence was punishable on conviction to set periods of imprisonment. Firstly, in relation to the phrase “which the person knows, or ought reasonably to have known”, she noted that the DA wanted to persuade the Committee to drop the negligence aspects. Secondly, she noted that the wording referred to an offence that  “would directly or indirectly benefit a foreign state”. She believed that, similar to what had been done in clause 37, this wording should be supplemented with the wording “to the detriment of the national security of the Republic”.  She would like to propose formally that this wording be added to the espionage clause, so that it should not rest only on the benefit to a foreign state, but must also be to the detriment of the Republic.

In relation to the hostile activity offence set out in the renumbered clause 36 (formerly clause 38), she believed that there were some excellent changes to subclause (1) that should have been carried throughout. In subclauses (1)(a) and (b), in relation to communication, delivery, or making available information that would directly benefit  a non-state actor engaged in hostile activity, the NCOP had proposed the insertion of the phrase “that would prejudice the national security of the Republic”, to supplement the description of hostile activity. However, this same change had not been carried through to subclauses (2)(a) and (b), nor 3(a) and (b), in lines 31, 35, 41 and 46. She believed that this was probably an oversight and suggested that the wording should be carried through.

Mr S Swart (ACDP) welcomed the amendments made by the NCOP, which he felt had taken the Bill forward. Many of the clauses had been discussed in detail. He wanted to welcome the proposals to change clause 43 and the addition of the clause relating to criminal activity in terms of section 45. That went far to allay concerns that had been raised about disclosure of classified information. He also agreed that the additions referring to the Labour Relations Act and National Environmental Management Act (which were not inserted by this Committee) were good. There had been improvements to the chapter on the Review Panel.

Mr Swart said that he had earlier suggested a test for clause 3 of the amendment, relating to good cause shown, as outlined on page 6 of the attached document. He noted that in (b), there had been mention of the need for protection of South African “innovations” and, whilst he had no quibble with the principal, he questioned if that was the most suitable word, or whether perhaps another word might be more appropriate, perhaps “discoveries”. He also noted that the word “and” had been inserted instead of the colon that appeared in an earlier draft.

Mr Swart shared the concerns about the negligence test, and requested the Committee to re-look at that, along the lines of what Ms Smuts had suggested.

Mr D Kganare (COPE) noted that he was sitting in at the meeting as an alternate, but did not wish to comment specifically.

Ms Smuts wished to address the Committee on what remained the fundamental concerns.

The Chairperson asked if this was “old news”.

Ms Smuts said that it was and she would state it briefly. As advised previously, the DA still believed that the Bill confused security information, which deserved classification, and ordinary State information which was subject to the national Archives and Records Act, which it described as “valuable information”. She formally recommended that every reference and clause dealing with “valuable information” should be removed. It was not the job of the Intelligence Services to govern the information, although this was done under Minimum Information Security Standards (MISS) and she presumed that they were reluctant to let go of the right to monitor records of all South Africans. However, the DA believed that this was unconstitutional, firstly because the National Archives and Record Keeping Act empowered the National Archivist to write the rules. Secondly, the Constitution, after 1996, had created an exclusive provincial competence, and in the Western Cape legislation had been passed, putting the Provincial Archives in charge of the record-keeping. It was an intrusion on provincial competence to legislate at all for valuable information. Even if, under section 44 of the Constitution, the ANC wished to argue it could legislate, the DA believed it remained unconstitutional not to follow the section 76 process. She suggested that the Committee therefore ought to consider whether the Bill should not have been re-tagged.

Ms Mentor raised a point of order, questioning what this long political speech had to do with the Bill.

The Chairperson noted that this complaint about the tagging and archives had been raised before. He asked if the debate should be opened up again.

Mr M Sonto (ANC) asked for a five-minute caucus on the points raised.

Mr Swart wanted to place on record that the ACDP aligned itself with the points raised by the DA.

The Chairperson ordered a short adjournment.

On resumption, Mr Landers reported that the ANC wanted to formally express appreciation to, and commend the NCOP Committee for its work on this Bill, that had resulted in the proposed amendments.

The ANC had carefully considered the views of Ms Smuts and Mr Swart, but was not persuaded by them and remained of the view that all the amendments before the Committee, from the NCOP, should be accepted and that the Committee should proceed.

The Chairperson noted that this indicated that the proposals put by the DA were not accepted.

Mr Landers then formally proposed, and Ms Mentor seconded, that the amendments proposed by the NCOP should be accepted and incorporated into the Bill passed by the NA and referred to the NCOP.

Ms Smuts noted that the amendments were all improvements, even thought they would not be further amplified. The DA supported the incorporation, but would continue to vote against the Bill as a whole, on the Constitutional points.

Mr Swart noted that the same applied to his party.

Incorporation of NCOP proposals
All Members voted in favour of the proposal to incorporate the NCOP provisions into the Bill.

Adoption of the Bill
The Chairperson noted that the Committee would now have to adopt the printed Bill, and allowed a short adjournment to allow the C-version of the Bill to be formally printed and circulated. He suggested that the State Law Adviser be given the necessary authority to make any technical corrections where necessary, such as punctuation or spelling. Otherwise, the Committee would have to reconvene to approve these amendments. He would be informed if anything more substantial was raised.

Ms Smuts said that she was reluctant to vote on something that she had not had the chance to read through in detail. There were at least two instances in the Bill passed by the NA, where a full stop appeared but should not; one was in clause 47 where a full stop broke the sentence describing the offence, and the other appeared at the beginning of the Bill and would be conveyed to the Office of the State Law Advisers (OCSLA).  

The Chairperson noted that the document had been proof-read, although this was always a difficult task.

Ms Smuts made the point that a lot could hang on the insertion of a comma.

The Chairperson said that although ultimately the Committee was responsible, it could not be expected to proof-read the Bill itself, that the process was in good hands, and the Committee should have confidence in OCSLA. He thought that it was not necessary to become obsessed with perfection.

At 13:30, when the Committee re-convened the Chairperson noted that the new version of the Bill was not yet available. He noted that the three-day rule would apply and wondered when the Committee would meet to adopt the Bill and Committee Report officially, since the matter was due to be debated in the House on Thursday.

Mr Landers suggested that the three-day rule did not apply to this Bill, and that if it did, it in any event included Tuesday, so there was sufficient time. He said that the three clear days for the tabling of the report included both Tuesday and Thursday.

Ms Mentor proposed a meeting on the following day, at 13:00, in M514, to adopt the Committee Report and Bill.

Members agreed and indicated that they would all be available.

Adoption of Minutes
The Chairperson had noted earlier that Parliament was insisting that minutes be kept. He did not want to emphasise the technical aspects of the minutes, but ultimately there were recordings and if necessary the recording could be transcribed. The minutes merely captured the most important issues.

Ms Mentor noted that her name should be reflected on the minutes of 14 March. Mr Kganare sought to correct his initials. The Chairperson responded that these issues should be raised at the appropriate time when the Committee attended to the adoption.

The Minutes were not adopted.

The meeting was adjourned.


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