Protection of Information Bill: deliberations

Intelligence Legislation

11 August 2008
Chairperson: Mr C Burgess (ANC)
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Meeting Summary

The Committee held an extensive and detailed discussion highlighting what they saw as the important points raised by the submissions during the public hearings. It was recognised that the language in the Bill was quite convoluted and therefore difficult to understand. The main issues that had been raised during the submissions related to the defence of “in the public interest”, an oversight mechanism in the form of an information officer or an ombudsman, power granted to low-level officials to restrict mundane information, the wide application of the Bill and the low threshold of classification, and the time periods for classification or declassification. Other comments were made on the possible clash between legislation such as Promotion of Access to Information Act and the Protected Disclosures Act. The role of the Minister was also discussed and should be narrowed. The Inspector-General should assess to find out if he could fulfil the function of an oversight mechanism. The Committee felt that perhaps the Chief State Law Advisor should redraft Chapter Eight, the Intrinsic Value Approach, to make it clearer. The Committee would discuss further whether they would have further public hearings as several organisations indicated that they would like to make submissions. The Committee decided that they would write to Parliament requesting an extension of the deadline, as they would not be able to report back to Parliament on the 29 August 2008. In the meantime, the principle issues having being discussed, the State Law Advisers were asked to attend to a further draft for more discussion

Meeting report

Protection of Information Bill (the Bill): Process
The Chairperson made apologies for those members who could not attend the meeting. The Parliamentary schedule stated that the Committee was supposed to report back to Parliament on the National Strategic Intelligence Amendment Bill and the Intelligence Services Bill on the 29 August 2008. He suggested that he draft a letter notifying Parliament that the Committee would not be able to report back on that date, and request an extension.

The Chairperson explained that the purpose of today’s meeting was to assess the public hearings that took place on the Protection of Information Bill. There was no need to get into deep discussions on the good and bad points of the submissions. The Committee needed to collate the information received in proper format, so that when it eventually went through the Bill clause by clause there was a proper record of what was mentioned at the hearings. There were a number of requests for the extension of public hearings so that more submissions could be made on the Bill. The further interest that had been expressed in this legislation would mean that the processing of the Bill should not be hurried. Those that wanted to make a meaningful contribution to the process should be allowed to do so, particularly if their submissions were coming from a different angle or expressing a different point of view. Many organisations that were interested in making submissions also had interests in other committees that were having public hearings and they were unable to attend the Protection of Information public hearings. The fact that they did not have the capacity did not mean that they should be turned away. This was a delicate piece of legislation and the process should be all-inclusive. He felt that the Committee should look at taking further submissions at a later date. The international trip would allow Members to become better informed, interact with and learn from a country that had developed similar legislation. India was the primary location for the trip; there had been some problems in the country that had now been resolved, but the Committee might only be able to go on the trip in September. 

Adv P Swart (ANC) asked would the Committee would meet with the Minister of Intelligence.

The Chairperson replied that the Minister would attend the meeting on Wednesday.

Mr L Landers (ANC) asked if the Committee would meet on Friday.

The Chairperson replied that there was nothing on the programme for a meeting on Friday.

Ms H Mgabadeli (ANC) felt that the public hearings were not reaching all the public. The Committee had not found the correct type of media that reached all of the people. Many members of the public were not even aware of the old legislation, let alone the Bill. Her fear was that South Africa was continuing y to exclude members of the public, even though the public had a right to know about legislation. No blame could be attached to any one individual, but she felt that this was a fact, and the Committee had to assess how far they reached the public.

The Chairperson noted Ms Mgabadeli’s point that she was not happy with the public hearing processes. When it came to intelligence legislation, there were only a few who were privy to the domain. The Committee did not want any exclusions and he thought that perhaps the Committee should take matters further to try and reach the people. Those who wanted to comment generally read newspapers and watched television, and they were in a different position to those that did not; the latter represented a bigger part of the country. The Committee needed to find a way to reach the broader section of the population.

Adv Swart asked when the Committee might foresee when they would take further submissions. He was concerned because soon most of the Committee members would be very busy and would not be able to give all their attention to the legislation. Furthermore he raised the point that when the legislation went to the National Council Of Provinces (NCOP), they would take it to the provinces, and they would perhaps be able to reach the provinces better than the Committee could.

The Chairperson replied that originally Parliament gave the date of 20 June 2008, but at the time this Committee was only dealing with one Bill. Now there were an additional two Bills. It was unfortunate that the time factor was set, but they could not rush the process. The Committee would have to find alternative answers for processing the Bills thoroughly. He did not think they had run out of time just yet.

Protection of Information Bill (the Bill): Deliberations on public submissions
The Chairperson noted that all the presenters had conceded that there was a necessity for the Bill. They had also stated that the legislation was not clear, that they had problems with the implementation of Promotion of Access to Information Act (PAIA) and warned that similar mistakes should not be repeated with the Bill. He reiterated that the Committee should gather all the information in a working document.

Mr Landers highlighted some issues that arose during the public hearings. The points raised on the public interest defence, the power granted to low-level officials to restrict mundane information, adjudication of disputes and the alternatives that were presented such as the creation of an ombudsman or an information commissioner were all significant. The next area of concern was the clash of legislation between the Bill and the Protected Disclosures Act that was supposed to protect whistleblowers but that had failed in its purpose because the legislation was abused. The concern was how it interfaced with the Bill.  Finally the role of the Minister should be looked at. It had been proposed that someone other than the Minister should handle disputes. There was also the question around the capacity of the national archives that was a vital point.

Adv Swart added that it was clear there was consensus about the wide application in terms of all organs of State, and the broad terms of that phrase. The national interest versus national security debate that brought in commercial information was also an issue. The low threshold of the classification itself was raised. There were remarks about the way the Bill dealt with information before the Courts, yet he could not completely understand what the alternatives were as was clarified in Clause 12 of the Bill. There was also concern for the length of the maximum time periods of classification and therefore declassification. The scope of the Bill needed to be clarified and perhaps the Minister would deal with that issue.

Mr I Vadi (ANC) added there was valuable input and that the key point was that all the presenters thought that the Bill was a necessity. It was a fundamental point. The debate centred around the issue that, assuming it was agreed that certain information was classified, then what information would be classified. Reference to organs of State covered every government department and local authority, and that was too wide. There was an issue of who should classify, and if the level of classifiers dropped then any junior official could classify information. He agreed that there was a need to discuss the role of the Minister, as some thought that there was too much authority given. There was the issue of when classification took place and whether it should be declared. On a conceptual level the national interest versus national security debate had been raised, and many thought that national interest was too broad a concept and that the Bill should look at classifying national security. As an oversight mechanism perhaps there should be consideration given to the office of the Inspector-General that was already in place, and perhaps what role he could play. If a member of the public or a journalist were to find a classified document and publish it, the journalist could in theory claim that publication was in the national interest of the country. The determinations had to be made without affecting the journalists’ right to report freely. The preamble should also be looked at and made stronger and clearer.

Ms Mgabadeli remarked that the issue of timeframes should not force this Committee to push legislation through without full and comprehensive consideration.

The Chairperson reiterated that in this view there should be a wider response and further interaction with the public. It was for the Committee to take that to Parliament. He agreed that they should not rush the legislation and that Members were aware of that. They had a responsibility to process the Bill and to advise Parliament on their progress. The Committee would report to Parliament on their progress and it would be its duty to inform Parliament about the problems they were experiencing, and how they were going to resolve them. Once they had interacted with Parliament they would then discuss further what the Committee should do. 

Adv Swart commented that this was a difficult piece of legislation and they would deal with it accordingly. The intrinsic value approach, as set out in Chapter 12 of the Bill, was not clear. He had some idea as to what was intended by the chapter, but he would be unable to explain it to someone else. The Bill should not create an opportunity for others to consider that there was deliberate secrecy. There should be the assurance that there were sufficient safeguards in place. Clause 19(2) in particular described what categories and files of state information could and should be classified. The public interest defence should also be properly discussed.

The Chairperson responded that the question of public interest was often raised in defamation cases.  It was a question of whether one person had the right to disclose something about another person, irrespective of whether or not it was true. The media could say something about an important person and the truth was not necessarily of major consequence if it was in the public interest that this disclosure occurred. The point could merely be raised that the disclosure of the document was in the public interest, and that would have to suffice.

Mr Landers commented that there were two cases that could were pertinent to the Bill, concerning Business Day and the Sunday Times. In the Sunday Times matter, a now-deceased member of NIA conducted an investigation that was now the source of much controversy. The tension between the media and the Intelligence wing was a healthy tension. There would always be a role for the courts. He did not think that the ombudsman or the information officer should be the final arbiter. There would always be the situation where information could be released and only afterwards could the consequences become apparent or be litigated over. He believed that there should be changes made to the authority given to the Minister. He suggested that when the Minister made regulations these should either be tabled in Parliament or the Joint Standing Committee on Intelligence should approve the regulations.

The Chairperson referred to the intrinsic value approach and thought that it was not comprehensible. He also picked up the concerns with the convoluted language. He thought it would be irresponsible to pass legislation that was difficult to understand. The Members might have to revisit the issue. He could assure them that public officials would have difficulty understanding what was required of them. The relationship between the Bill and the PAIA meant that there should be a further examination of the PAIA and checking of the cross-references between the Bill and PAIA.  The Committee might find, as it went through the Bill, that there was also the necessity to amend PAIA. The issue of national interest and national security again came down to language. It was problematic creating structures such as the ombudsman, so the Committee should carefully assess the suggestion of utilising the Inspector-General.

Mr Landers recommended that instead of amending PAIA the Committee should draft a report that detailed the concerns of from the Committee on this Act. Once that report was tabled in Parliament it would then go to the Ministry of Justice Ministry. It would then be up to the Ministry to assess whether PAIA should be amended. The Committee should engage with the drafters on the extent to which, if at all, they had looked at PAIA when drafting the Bill.

The Chairperson asked if the Office of the Chief State Law Advisor had anything to add.

Ms Xoliswa Mdludlu, Principal State Law Advisor: Office of the Chief State Law Advisor, replied that since it was not within the jurisdiction of Intelligence it would be proper to go the route that the Chairperson and Mr Landers had recommending regarding concerns about PAIA.

The Chairperson asked if there was any other approach rather than that provided by Chapter Eight.

Ms Mdludlu replied that the intentions of drafters had to be noted. Every field had its own terminology and this sometimes made it difficult to bring across the intention of the drafter. However, it would be possible to try to find other terms that could make the legislation clearer.

Adv Swart asked if the Office of the State Law Advisor could attempt to redraft Chapter 8 without using the phrase “intrinsic value approach”. It had to stand up in court as well as be clarified for the ordinary person.

Mr Landers concurred that concepts such as this should not find their way into legislation. They did not identify clearly what was being said.

The Chairperson mentioned that he had asked the presenters who they saw as being the watchdogs of national interest and security, and he questioned how it came about that certain people presented themselves as custodians of public interest, and whether they were doing it properly. Barry Gilder had presented a different view. His view was that the Bill was not meant to infringe on the rights of the people, but that it was unheard-of elsewhere that espionage was not a crime. Other countries used the criminalisation of espionage to protect their interests. People would undertake espionage activities for a number of reasons. He found it particularly interesting that the Bill was not looking to do the public any harm. Instead, the Bill was trying to bring in a minimum standard to protect information and the State. Its introduction was long overdue.

The Chairperson asked that the Office of the Chief State Law Adviser draft a document based on what had been mentioned in the meeting.

The meeting was adjourned.

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