Amendments remove secrecy bill’s sting
New version of bill heads to National Assembly’s committee, writes Wyndham Hartley
THE so-called secrecy bill will begin its final stage of the parliamentary process soon in a vastly different form from the highly controversial draft law that was first tabled in the National Assembly in 2010.
In its original incarnation the Protection of State Information Bill contained draconian punishment for those disclosing classified information.
It did not recognise that disclosing classified information in the public interest should be defensible, and it had a broad definition of what constituted the national interest. It further would have allowed all organs of state to classify information.
There was such an outcry over the contents of the bill that it led to the formation of a coalition of civil society organisations under the banner of the Right2Know campaign.
The bill that the African National Congress (ANC) muscled through the National Assembly after almost two years of work by a special ad hoc committee was substantially different from the original. But there was still strong resistance from opposition parties and civil society.
The bill then went to an ad hoc committee of the National Council of Provinces that, after many months of work, delivered the present version with substantial amendments.
Now, the National Assembly ad hoc committee must consider the National Council of Provinces’ amendments, but it is not clear how many further changes can be made.
In terms of parliamentary rules the amendments can only be accepted or rejected.
Democratic Alliance (DA) MP Dene Smuts, who serves on the National Assembly’s ad hoc committee, says: “The reconstituted ad hoc committee on the Protection of State Information Bill, under Rule 270, must recommend the adoption, or rejection, of the National Council of Province’s amendments to the National Assembly and may not itself propose amendments not strictly relevant to (the council’s) amendments. It is clear that the (council) was determined to achieve constitutionality.
“The DA endorses in particular the amendments to the offences of possession and disclosure of classified material.
“We note that the (council’s) amendment is strongly reminiscent of the DA’s own proposal to the (National Assembly) ad hoc committee in August 2011 that possession and disclosure of classified material that reveals unlawful acts should escape criminal sanction.”
The council has also taken the advice of Adv George Bizos, who in a submission for the Legal Resources Centre recommended that “a public interest defence does not have to be broad or general, but … may require strict conditions and list specific instances where disclosure will be in the public interest”.
He offered an example now included almost verbatim, where “disclosure reveals criminal activity, including for the ulterior purposes listed in section 47”.
Section 47 of the bill now creates the offence of improper clas- sification. Mr Bizos argued for a defence based on improper classification.
Luwellyn Landers, who headed the ANC group in the ad hoc committee, while emphasising that he speaks in his personal capacity, compliments the work of the council’s committee, calling the amendments “brilliant”.
He says that he cannot “see any reason not to accept the (council’s) amendments”.
Ms Smuts says under the amendments “a whistle-blower or journalist who reveals criminal activity is now not committing an offence”. But should any prosecution be instituted, a defence of improper classification was now explicitly available. This was the case where information was classified in order to conceal breaches of the Corruption Act, or by any other unlawful act or omission, incompetence, inefficiency, or administrative error, among other things.
“We also applaud the fact that the National Council of Provinces amendments not only stop all attempts to trump or go behind the Promotion of Access to Information Act (PAIA), but have actually expanded the PAIA override for the mandatory release of information,” she says.
The constitutionally mandated PAIA only requires the release of information revealing a substantial transgression of the law. Information showing contraventions must now be released too.
“We note that the worst of all clauses — section 49, which we dubbed the Chikane clause in view of Rev Frank Chikane’s warning that a corrupt intelligence service would be the worst threat to state security — has been deleted. Perhaps the (council’s) intention when retaining negligence for espionage was to criminalise negligent action by sworn spookery staff. But then the bill should say so.”
Ms Smuts says the DA’s main constitutional objection remains. Provincial archives are the exclusive legislative competence of provinces and Parliament should not be legislating where such competencies prevail. The bill should have been tagged a “section 76 bill” and could be procedurally unconstitutional.
The ad hoc committee has until June 20 to complete its consideration of the National Council of Provinces’ amendments.