Critical Infrastructure Protection Bill: deliberations

This premium content has been made freely available

Police

13 February 2018
Chairperson: Mr F Beukman (ANC)
Share this page:

Meeting Summary

The Committee met to continue with deliberations on the Critical Infrastructure Protection Bill [B22 2017].

The Parliamentary Legal Advisor indicated that the Bill aimed to introduce measures to protect and safeguard critical infrastructure, the establishment of the Critical Infrastructure Council and its functions, and the administration of the Bill when passed into an Act by the National Commissioner of Police. The Bill also provided for the designation and functions of inspectors, the duties and powers of persons in control of critical infrastructure, reporting obligations, and the repeal of the National Key Points Act of 1980.

The Bill was of a technical nature. It did not contain provisions to which the procedure set out in section 76 of the Constitution applied, as its provisions did not in a substantial measure affect matters which affected provinces. It made use of words such as “provincial disaster management centre”, “municipal disaster management centre”, “energy”, “health” and “transport”, but it did not substantially affect provinces. It had been recommended to the Joint Tagging Mechanism (JTM) that the Bill be processed in terms of the procedure set out in section 75.

The Parliamentary Legal Advisor said the legal view was that the Bill was constitutionally sound and the manner in which it had been processed thus far had met the constitutional threshold. As noted previously in the Committee, amendments informed by public participation and those which had emanated from deliberations within the Committee, presented an opportunity to further strengthen the Bill and address any concerns by interested and affected parties.

Members expressed concern about the issue of tagging, saying it was unclear why the Bill was going through Section 75 instead of Section 76. What were the implications of choosing this route? What measure had been used to arrive at a determination that the Bill did not substantially affect provinces? They asked about the specific process to be followed for the appointment of members to serve on the Council, as this was not made clear. They stressed that there was a need to strengthen and improve the integrity and fairness of the administrative process within the public sector so as to avoid the situation where courts were used as the last resort for people to get justice. The option could be to build an opt-out clause in the Bill, as this was the cloud that was still hanging over this Bill.

The AmaBhungane Centre for Investigative Journalism believed that clause 26(2) imposed excessive penalties on a range of ‘unlawful’ actions at critical infrastructure sites. The absence of a qualification of unlawful, had the effect of it being an indiscriminate ‘catch-all’ provision, subjecting unknowing, unintentional and/or public interest breaches of the Bill to the same criminal sanction of bona fide unlawful criminal activity. It was concerning that the clause extended to the use or distribution’ of, among others, photographic images and recordings. The chilling effect of the non-qualification of unlawful in the entire clause 26(2) on media freedom and the free flow of information in the public interest could not be overstated. AmaBhungane recommended that the clause should be revised to include an adequate public interest defence, guided by the provisions of the Promotion of Access to Information Act (PAIA).       

Members appreciated the fact that the amaBhungane presentation had focused on an area that none of the previous submissions and the Committee had sufficiently focused on. The Committee was clear that it could not risk the possibility of the Bill being challenged in court. It would be helpful for it to receive a copy of the judgment in 2017, where the Supreme Court of Appeal had confirmed that the National Prosecuting Agency (NPA) Act could not be used to impose a blanket ban on disclosures, but rather that the decision required “an appropriate balance between securing the criminal justice system and upholding freedom of expression.”

Meeting report

Chairperson’s opening remarks
The Chairperson said the Committee would first get a briefing by the Parliamentary Legal Advisor on the Bill. It would then receive a submission from Amabhungane, and was still accepting more submissions from the civil society organisations. Tomorrow, the Committee would meet with the National Commissioner to address outstanding matters, including further clarification on the strategic direction presented to the Committee, the new structure and harassment policy of SAPS, and Section 45 appointments. There was also the issue of the Firearm Amnesty, and Members would be given ample time to engage on the issue. The Committee had received information that the Parliamentary programme would be changed and the last two weeks of this term would be committee meetings.

Ms D Kohler Barnard (DA) asked whether the Committee would still undertake a trip to Limpopo as scheduled in the programme presented last month.

The Chairperson responded that the Committee would still need to consider that, but the priority at the moment was on concluding legislative work.

Briefing by Parliamentary Legal Advisor
 

Mr Nathi Mjenxane, Parliamentary Legal Advisor; said that the Critical Infrastructure Protection Bill [B22 2017] aimed to provide for identification of infrastructure as ‘critical infrastructure’ for the purposes of the Bill, and to provide guidelines and factors to consider to ensure transparency in identifying and declaring critical infrastructure. The Bill also aimed to provide measures to protect and safeguard critical infrastructure, the establishment of the Critical Infrastructure Council and its functions, and administration of this Bill when passed into an Act by the National Commissioner of Police. The Bill also provides for the designation and functions of inspectors, the duties and powers of persons in control of critical infrastructure, reporting obligations, and repeal of the National Key Points Act, 1980. Chapter 4 of the Constitution specifies how statutes must be enacted by Parliament. The relevant provisions in this chapter apply to all Bills.

Mr Mjenxane said that Section 59 provides for the facilitation of public involvement in legislative and other processes of the National Assembly and its Committees. The Constitutional Court in the ‘Doctors for Life’ and LAMOSA decisions ruled that Parliament had a constitutional responsibility to facilitate adequate public involvement. The threshold was reasonable public involvement, taking into account the importance of the proposed legislation and the interest of the public. The “test” for the classification of a Bill was set out in the Constitutional Court judgment of Tongoane and Other v the National Minister of Agriculture and Land Affairs and Others. The “substantial measure” test requires that the provisions of a Bill be considered in relation to their area of impact. The Bill was of a technical nature. It does not contain provisions to which the procedure set out in section 76 of the Constitution applies, as its provisions do not in a substantial measure affect matters which affect provinces.

Even though the Bill makes use of words such as “provincial disaster management centre”, “municipal disaster management centre”, “energy”, “health” and “transport”, it does not substantially affect provinces. It was recommended to the Joint Tagging Mechanism (JTM) that the Bill be processed in terms of the procedure set out in section 75. The opinion provided to the JTM further recommended that the Bill was constitutionally and procedurally in order. The role of Parliament in playing an oversight role may be built into the Bill by:

recommending the Critical Infrastructure Council members for appointment by the Minister;
scrutinising subordinate legislation passed in terms of the Act;
periodic updating/reporting on activities regarding the declaration of critical infrastructure.  

The Bill was viewed as constitutionally sound, and the manner in which it had been processed thus far had met the constitutional threshold. As noted previously in the Committee, amendments informed by public participation and which emanated from deliberations within the Committee, presented an opportunity to further strengthen the Bill and address any concerns by interested and affected parties.

Discussion

Ms Kohler Barnard expressed concern about the issue of tagging, saying it was unclear as to whether why the Bill was going through Section 75 instead of Section 76. Why was the legal advisor taking the route of a Section 75 Bill? What were the implications of choosing the Bill to go through the route of Section 76? The Committee should avoid the situation where the Bill could be sent back for not meeting constitutional muster, as this would be rather embarrassing.

Mr Z Mbhele (DA) asked about the measure that was being used to arrive at a determination that the Bill did not substantially affect provinces. What were the reasons for reaching the conclusion that the Bill did not substantially impact on the provinces.

Ms M Molebatsi (ANC) said that there were many cases where Members of Parliament (MP) would be told that a particular bill was constitutionally compliant, only for it to be returned to the Committee for not meeting constitutional muster. Was this Bill implementable? Could Members be put at ease that this Bill was constitutionally compliant?

Mr P Mhlongo (EFF) wanted to know the meaning of the statement by the Parliamentary Legal Advisor that the Bill did not substantially affect the provinces, as this did not make sense. The Bill was likely to impact at the provincial level in one way or another. It was important to take into consideration the issue of the escalation of costs at the local and provincial level. There would be a need for the insertion of a particular clause that would accommodate this possibility. It was ultimately the national government that allocated funds to local and provincial departments and entities. 

The Chairperson asked about the specific process to be followed for the appointment of members to serve on the Council, as this was not made clear.

Mr Mjenxane responded that the appointment of members to serve on the Council would be similar to the appointment of members to serve on the SABC Board where was an advertisement of the vacant posts, the short listing of candidates, and interviews followed by deliberations. The Committee could be the one to scrutinise the declaration of critical infrastructure, although it would be still need to be aware of the separation of powers. The constitutional threshold of the Bill had been met by looking at all sources of law, but the courts were still the final arbiters of the constitutionality of the Bill. The substantial measure here was the implementation of the Act, and the Bill was implemented by the Department of Police and the provinces had a reduced role in the implementation and administration of the Act. The provinces would not be substantially involved in the Act, and the Constitutional Court judgment of Tongoane was a typical example of their minimised role. It was really up to the Committee to decide whether the Bill should fall under Section 75 or Section 76.

Mr Sisa Makabeni, State Law Advisor, Office of Chief State Law Advisor, explained that it was at the volition of the provinces to bring an application to ensure that their infrastructure or property was covered by the ambit of the legislation. The provinces were not bound to be part of the legislation from the word go, but the application was optional. 

Mr Mbhele disagreed with the view that the Bill was optional at the provincial level, as the Bill did not contain an opt-out clause. There was a provision for consultation if a particular department decided not to make an application to be part of the legislation. The only way to overturn the ultimate declaration by the Minister was through an application for a court review. There was a very narrow space for a provincial government to overturn the declaration of a critical infrastructure by the Minister. The concern was premised on the fact that the provinces did enjoy a great degree of autonomy, and one could not dilute or overlook this. There was a need to strengthen and improve the integrity and fairness of the administrative process within the public sector so as to avoid the situation where courts were used as the last resort for people to get justice. The option could be to build an opt-out clause into the Bill, as this was the cloud that was still hanging over the Bill.

Mr Mjenxane responded that there were mechanisms in place where there were disputes over power sharing, and this should be taken into consideration. There were cases where Ministers and Members of Executive Councils (MECs) were able to meet to resolve the disputes and issues of common interest. It had to be emphasised that going the court route was not the only option to deal with differences that might come or be anticipated. There was also a drafting option that might be utilised to ensure that there was no unfairness in the application of particular legislation. The Committee could also put an opt-out clause in the legislation, as suggested by Members.

Brigadier Bert van der Walt, Section Head: Legal Support, SAPS, said that there had been concern from the Committee over the power of the National Commissioner to do the application for the declaration of critical infrastructure on behalf of someone else, and it was possible that this procedure could be tightened up considerably. It was never the intention of the Bill to give wide powers to the National Commissioner to make an application on behalf of someone else.  
   
Submission by amaBhungane Centre for Investigative Journalism

Ms Karabo Rajuili, Advocacy Coordinator: Amabhungane, said that the Centre concurred with the concerns raised in other submissions on the excessive penalties in the Bill. However, for the purposes of this submission, it limited itself to comment the omission of express public interest and public domain defence clauses in the Bill, particularly as it relates to the clause 26(2) schedule of offences and penalties in the Bill. The comment was made in view of the potential chilling effect these omissions would have for investigative journalists, the media and the wider public, who wished to access or disclose information in the public interest or in the interest of justice, but would be subject to harsh penalties in terms of the Bill.

Ms Rajuili said that amaBhungane believed that clause 26(2) imposes penalties on a range of ‘unlawful’ actions at critical infrastructure sites. The absence of a qualification of ‘unlawful’, had the effect of being in indiscriminate ‘catch-all’ provision, subjecting unknowing, unintentional and/or public interest breaches of the Bill to the same criminal sanction of bona fide unlawful criminal activity. It was concerning that clause 26 (2)(d) extends this to the ‘use or distribution’ of, among others, photographic images and recordings. The chilling effect of clause 26 (2)(d), and the non-qualification of unlawful in the entirety of the clause  on media freedom and the free flow of information in the public interest could not be overstated. The important information, images, documentary evidence which may reveal a contravention of the law or misuse of public funds, may be suppressed under the threat of severe criminal sanction. Media reporting on the security upgrades at President Zuma’s private Nkandla residence was case in point. Similar provisions in the National Key Points (NKP) Act had served to obstruct and frustrate media reporting, publication of images and access to information. The clauses in their current form repeat the errors of the NKP Act.

The constitutional implications of the absence of a public interest safeguard in the Bill were substantial. It was worth remembering that an adequate public interest defence was a key demand in the contentious passage of the Protection of State Information Bill (POSIB) in Parliament. The public interest defence, in this instance, was a method for removing the offences of (simple) receipt, possession and disclosure of classified information where the public interest in disclosure outweighs the harm contemplated. While the inclusion of this defence had some effect in ameliorating the defects of POSIB, these exceptions do not meet the test for a true public interest defence. A more constitutional defence requires the inclusion of ‘imminent public danger’ at the very least. The section 46 public interest defence provision in the Promotion of Access to Information Act (PAIA) 2 of 2000 -- one of the more progressive pieces of post-apartheid legislation enacted to increase transparency and accountability -- made the inclusion of imminent public danger.

AmaBhungane recommend that clause 26(2) (c) should be revised to include an adequate public interest defence, guided by the provisions of PAIA. The same clause should include a public domain defence, which it would discuss in the next section of its submission. There would be drafting suggestions on both these points at the end of the submission.
           
Ms Rajuili said that amaBhungane recommended that clause 26 (2)(c) be revised to include the public interest defence present in PAIA, and a specific public domain defence: 26 (2) ( c) other than in accordance with the provisions of the Protected Disclosures Act, 2000 (Act No. 26 of 2000), or any other legislation that provides for the lawful disclosure of information, or where the disclosure of the record would reveal evidence of a substantial contravention of, or failure to comply with, the law; or an imminent and serious public safety or environmental risk; and the public interest in the disclosure of the information clearly outweighs the harm contemplated in the provision in question, unlawfully furnishes, disseminates or publishes in any manner whatsoever information relating to the security measures applicable at or in respect of a critical infrastructure, except where such information was demonstrated to already be in the public domain.

Discussion

Ms KohlerBarnard appreciated the presentation that had been made by amaBhungane, as it focused on the area that none of the submissions and the Committee had sufficiently focused on. The Committee was clear that it could not risk the possibility of the Bill being challenged in court. It would be helpful for the Committee to receive a copy of the judgment in 2017, where the Supreme Court of Appeal had confirmed that the National Prosecuting Agency (NPA) Act could not impose a blanket ban on disclosures, but rather the decision required “an appropriate balance between securing the criminal justice system and upholding freedom of expression.” It was unclear if it would be sufficient for the Bill to meet constitutional muster if there was an insertion of “unlawful” in clause 26(2). There were many issues in the Bill that needed to be discussed further. The inclusion of “unlawful” was a very simple solution, but it was unclear if it would be able to meet the legal muster. Had amaBhungane taken any legal advice on the issue of clause 20(2)?   

Ms Rajuili replied that the submission that was made was based on the practices of amaBhungane, and the Committee was in a better place in terms of getting a proper briefing on legal advice. AmaBhungane suggested that there should be an amendment of “unlawful” with “intentional,” so that the unlawful conduct was expressively marked by the intentionality of the conduct. AmaBhungane also believed that inserting “public interest defence,” as well as the “public domain defence,” provided adequate safeguards to ensure that journalists who wanted to do public interest reporting or want to publish information in the public interest were adequately protected without abusing the intention of the Bill, which was to protect the critical infrastructure.

Mr Mbhele accepted the uniqueness of the submission that had been made by amaBhungane, especially on the issue of “public interest defence” and “public domain defence”.      

The Chairperson wanted to know if amaBhungane was happy with other parts of the Bill, except for those areas that had been flagged as problematic.

Ms Rajuili responded that amaBhungane was indeed happy with other parts of the Bill, except where concerns had been raised.

The Chairperson appreciated the inputs from Members and stakeholders, and indicated that the Committee would continue with deliberation on the Bill on Tuesday.

The meeting was adjourned.
 

Download as PDF

You can download this page as a PDF using your browser's print functionality. Click on the "Print" button below and select the "PDF" option under destinations/printers.

See detailed instructions for your browser here.

Share this page: