Protection of State Information Bill: Deliberation on public submissions

Meeting report

Protection of State Information Bill
Adoption of draft reports summarising submissions
The Chairperson noted that two reports were handed out on Friday 4 May, and noted that the heading of the report on the public hearings in Palriament had been corrected.
Mr D Worth (DA, Free State) noted that the pagination was the same. However, some matters still had to be corrected. He noted technical errors, either of spellings or names, on pages 22, 36, 55 and 67 of the report on the Provincial public hearings.

Mr A Lees (DA, KwaZulu Natal) said there were a number of matters that he wanted to raise, which included the emphasis given to issues, but he was loath to spend too much time correcting the report. He suggested that Members should perhaps adopt it in its present form, and move on.

The Chairperson asked if Members wanted to adopt the report, bearing in mind that it would be used as the basis for discussion.

Members agreed to adopt the first report.

Mr D Bloem (COPE, Free State) noted, in relation to the Parliamentary hearings report, that only one proposed amendment from Cosatu was included, although others were raised.

The Chairperson noted that there had been audio and visual recordings of the public hearings, and Members could call for them if they wished to check on any issues.

Mr Aubrey Ramawa, Parliamentary Researcher, clarified that other areas were captured elsewhere in the report. This report set out the comments on each chapter of the Bill.

The Chairperson suggested that the second report could be adopted, and areas would be highlighted during further debate.

 Members adopted the second report.

Deliberations on the Bill
Mr Lees suggested that perhaps it would be useful to highlight, chapter by chapter, the issues of concern, in order to deliberate on them.

The Chairperson agreed, and requested that he start the proceedings.

Clause 1: Definitions
National security
Mr Lees believed that the definition for “national security” was problematic, as outlined in a number of the public submissions. He suggested that the word “includes” on line 28 should be replaced with the word “means”.

Mr Lees then requested that subclauses (i), (iv) and (v) of subclause 1(b) should be deleted. He also called for the deletion of clause 1(c).

He confirmed that a number of written submissions had motivated for these deletions. The main concern was the overly-broad definition of “national security”. The use of the word “includes” meant that there could be no restriction on the matters that could be considered as matters of state security. There was no clear definition of what a hostile act would be, and the problem was that this might lead to information being classified in circumstances where it was not appropriate. It was also not clear exactly what “exposure of a state security matter” meant and it was necessary either to define “state security matter” more clearly, or remove this. Subclause 1(b)(v) was also very broad, raised the question of whose secrets were described, whether it would include copyright matters, and opened the door for classification for ulterior matters, although this would not necessarily be able to be challenged as an incorrect classification. Subclause 1(c) referred to  “undermining the capacity” and there was no certainty on what this meant. Anything that was to be protected had to be protected in terms of clearly defined national security. 

State security matter
Mr Lees suggested that the word “includes” should be replaced with “means”.

Valuable information
Mr Lees said that the concept of whether valuable information was properly included in this Bill should be debated. The DA believed that this Bill dealt with national security only. Documents that contained valuable information needed protection, but they should be dealt with in other legislation. If this definition, and the concept of including valuable information in the Bill, was removed, it would lead to consequential deletions elsewhere.

Clause 1(4)
Mr Lees proposed that this entire clause be removed. It had the effect of trumping the Protection of Access to Information Act (PAIA), and this was incorrect in principle, since that Act was one that gave effect to Constitutional rights, and therefore should carry greater weight. He emphasised an earlier remark by the Chairperson that Members should attempt to protect the Constitution.

Discussion
Mr T Chaane (ANC, North West) asked for clarity. He agreed that the replacement of “includes” with “means” made sense. However, he wondered why Mr Lees was suggesting the deletion of subclauses 1(b)(i) and (iv). He pointed out that there was a separate definition for “state security matter” already in the Bill. He wondered if the problem was with the latter definition. He also asked if Mr Lees might not consider alternative wording for 1(b)(iv. He believed that there were economic, scientific or technological secrets that should not be exposed, and it could be dangerous simply to delete the subclause.

Mr Chaane noted Mr Lees’ suggestion that all references to valuable information be deleted, but noted that in other countries even this category of information was regarded as key to national security. Some of the submissions had advocated changes, but not a complete removal.

Ms N Ntwanambi (ANC, Western Cape) felt that insufficient motivation was given. She did not recall that any of the institutions appearing before the Committee had used the word “delete” and she cautioned that Members must be careful not to misquote the submissions. She also cautioned that subclauses that followed on from each other should not be removed without considering the effect.

Ms D Rantho (ANC, Eastern Cape) suggested that “hostile acts” would also include those acts listed in subclauses (ii) and (iii).

The Chairperson said that he had let the discussion proceed to this point, but now needed guidance from Members on how to move forward. Members needed to ask themselves why anything in the proposed legislation that sought to defend the Constitutional order should be seen as problematic.

Mr A Matila (ANC, Gauteng) wanted more argument on the difference between “means” and “includes”. He had not been convinced why the subclauses should be deleted. 

Mr I Gunda (ID, Northern Cape) asked for a legal definition of “national security” and said that once this had been given, then subclause (iv) could be debated.

The Chairperson suggested that the points be noted and parked for the moment.

Mr Lees said he was happy to do this, but wanted to respond to Ms Ntwanambi and Mr Chaane. Media Monitoring Africa had used the word “delete”and the Public Protector used the word “scrapped”, in relation to the clauses he had cited.

Mr Bloem referred to the Chairperson’s remarks, and suggested that Mr Lees be asked to motivate now, and that issues not be parked, as the Committee would only have to come back to those issues.

The Chairperson explained that he would prefer areas of contestation to be noted, but left aside for later discussion. He would also want to make a contribution, later on, to the debate. Other definitions did use the word “ means”. At this stage, he would prefer to avoid Mr Lees being asked to respond to the issues.

Mr Bloem thought that this was not helpful. He wanted to be part of the debate, but wanted also to understand why Mr Lees felt that the current wording was incorrect.

Ms M Dikgale (ANC, Limpopo) agreed with the Chairperson that this was a Bill of the whole Committee, and it was not for Mr Lees to motivate further, but for the Committee to debate the points, and move on.

Mr Matile noted that there had been a proposal, and a counter-proposal. If parties were not convinced by the arguments put forward, then he suggested that the Committee could resolve the matter now, and move on to the next issue, rather than having to come back at a later stage.

Mr Lees had a problem if that meant that his amendments were simply not being accepted.

Mr Chaane believed that anyone expressing a view must substantiate it. It would be useful for Mr Lees to clarify the submissions, so that Members could know whether he had taken account of certain points. Members might not necessarily have the same understanding.

The Chairperson asked Mr Lees to present his next point.

Clause 2: Objects
Mr Lees stated that clause 2(f) conflicted with a number of other pieces of legislation, which already dealt with these issues. If the wording could be were narrowed down to matters of state security only, it might be acceptable, but as it stood at the moment, the DA wished this subclause to be removed.

Mr Chaane wanted to engage with Mr Lees, but found himself in a dilemna. He requested that the ANC be allowed to hold a short caucus.

Other Members suggested that the meeting be adjourned for the day, and proceed on the following day.

The meeting was adjourned.