1. RESPONSE TO THE PUBLIC HEARINGS ON POSIB 06 JUNE 2012

2. BACKGROUND NCOP has conducted Public hearing in the provinces Hearings were also held in Parliament from 27 March 2012 to 30 March 2012 Submissions were received from 18 civil society organisations, Chapter 9 Institutions, and interested parties

3. CONTENTS Key issues and concerns: Contextualisation (current system & legislation) Definitions The inclusion of clause 1(4) The opt-in provision provided in clause 3(2)(b) Valuable Information in the Bill Levels of classification Accessibility to the Review Panel by members of the public The Public Interest Defence The Public Domain The reversal of onus The perceived severity of penalties

4. Click to edit Master subtitle style MANAGING INFORMATION IN RSA BILL OF RIGHTS Sect 32 ICCPR Right to seek, receive and impart information and ideas PAIA PROTECTION OF INFORMATION ACT STATE PERSONAL Sect 36 - Restriction Article 19(3) ICCPR PDA ACCESS TO INFORMATION PROTECT INFORMATION DISCLOSURE OF INFORMATION ARCHIVES LAWS A NATIONAL LAW PROVINCIAL LAWS ARCHIVING AND DESTRUCTION WHISTLE BLOWER PROTECTION

5. Article 19 ICCPR Sect 32 SA: It’s possible Protection of State Information Bill Public order, health or morals National Security ICCPR 19(3) RESTRICTED Sect 36 RSA SEEK RECEIVE IMPART THE SPIRIT OF POSIB RIGHTS AND REPUTATIONS

6. CONSTITUTION OF RSA SECT 36: Limitations of Rights BEAR IN MIND  Nature of right  The importance of limit  Nature and extent of limit  Relation of purpose of limit  Less restrictive means to achieve purpose In terms of the LAW Reasonable and justifiable in open and democratic society o human dignity o equality o freedom

7. MANAGING INFORMATION IN RSA PROTECTION OF INFORMATION ACT PROTECTION WEAKNESS PROTECTS MEMBERS, SOURCES AND METHODS INTELLIGENCE SERVICES ACT VETTING AND INFORMATION PROTECTION NATIONAL STRATEGIC INTELLIGENCE ACT HANDLING OF INFORMATION AND ACCESS BY OVERSIGHT STRUCTURES INTELLIGENCE SERVICES OVERSIGHT ACT ARCHIVES ACT NATIONALLY ARCHIVING AND DESTRUCTION OF RECORDS PDA ISOA DISCLOSURE OF INFORMATION

8. POSIB HUMAN SECURITY FOCUS RESTRICTIONS Proportionally secure a legitimate aim Pursue a legitimate aim Restricted: law 1 2 3 123 NEVER Ambiguous Vague Overly broad “broad discretions” Meet objective Impair as little as possible Proportional Public interest must be served Human Rights of others National Security Public Order Public Health or Morals Precise

9. DEFINITION OF NATIONAL SECURITY Concept is addressed in the Constitution (section 198) Concept is contested, neither universal nor singularly defined International law inclusive approach UK, European law Canada US Definition needs to be broad enough to provide for all threats & emerging threats Courts consider context, national security needs Definition expressly excludes lawful political activity, advocacy, protest or dissent

10. THE PROVISION OF CLAUSE 1(4): A number of submissions were made against clause 1(4) submitting that: The provisions of PAIA constitute the legislative articulation of the constitutionally protected right to access to information. The Clause renders PAIA subordinate to the Bill in instances of a conflict between the provisions of PAIA and the Bill Submissions have called for the deletion of clause 1(4) with some arguing for the reinsertion of the old clause 28 in 2010 version of the Bill presented to the National Assembly.

11. DEPARTMENTAL POSITION AND RECOMMENDATION: Clause 1(4) was inserted & the old clause 28 was deleted during the National Assembly to:  Avoid legislative confusion and  Ensure protections do not fall way when other Bills passed or PAIA amended Clause 1(4) plays an important role for the following reasons: PAIA gives effect to a Constitutional right but does not hold the same protection as the constitution POSIB and PAIA are two different pieces of legislation with two different objectives The POSIB provides for requests for classified information to be made in terms of PAIA

12. THE OPT-IN PROVISION PROVIDED FOR IN CLAUSE 3(2)(b) Objections were raised to clause 3(2)(b) which provides that “the classification, reclassification and declassification provisions of this Act apply to the security services of the Republic and the oversight bodies referred to in Chapter 11 of the Constitution; and may be made applicable by the Minister, on good cause shown, by publication in the Gazette, to any organ of state or part thereof that applies in the prescribed manner, to have those provisions apply to it” The main objections to this clause is concern that this Bill may be extended to other government entities. However these objections do not consider that information that relates to national security lies across state organs and sensitive information that was previously protected under the old Protection of Information Act of 1982 will longer protected when this Bill repels that Act.

13. THE INCLUSION OF VALUABLE INFORMATION IN THE BILL Importance of valuable information in the Bill  The protection of valuable information is critical to the protection of human security which is the bedrock of national security.  Failure to adequately protect valuable information could negatively impact on sovereignty and the state’s ability to protect its citizenry.  The Minister is responsible for protecting critical information infrastructure for securing the nation and sovereignty of the state. The protection of valuable information is not adequately covered under other legislative dispensations.

14. CLASSIFICATION AND DECLASSIFICATION It was suggested that Clause 11(a) should read: “a classification authority has identified state information in terms of this act as state information that on careful consideration and sound legal grounds warrants classification”. This is redundant as any administrative official in exercising their functions must apply their minds and take decisions cognisant of the laws of the country – and if not, that decision can be overturned. The Constitution directs that everyone has the right to administrative action that is lawful, reasonable and procedurally fair. Section 33 of the Constitution provided for national legislation to be enacted to give effect to this right and this was done through the promulgation of the Promotion of Administrative Justice Act, 2000.

15. LEVELS OF CLASSIFICATION In the clause that deals with Top Secret, it has been suggested to change “or” to “and” to amplify the heightened level. The amendment should be considered to distinguish between Secret and Top Secret sufficiently. To this end, it is proposed that the Top Secret be: “exceptionally grave harm” to national security.

16. ACCESSIBILITY OF THE REVIEW PANEL TO THE PUBLIC The Classification Review Panel was provided for in the Bill as an additional safeguard and serves as an oversight mechanism. Some submission called for the inclusion of a clause allowing public access to the panel. Recommendation: We recommend that the Classification Review Panel left as is to deal with the review and oversight functions

17. THE PUBLIC INTEREST DEFENCE CLAUSE Submissions have stated that the absence of a public interest defence will have “a chilling effect on media freedom” and will discourage whistleblowers from disclosing wrong-doing within government Clause 43 does not provide as an exception the disclosure in the public interest. Clause 43 makes it a criminal offence to disclose classified information, however, it provides for exception where a person is protected under the Protected Disclosures Act 26 of 2000 or Section 159 of the Companies Act 71 of 2008 or if a person who is charged for contravention of clause 43 is authorised by any other law to disclose classified information.

18. MAIN APPROACH PRE-DISCLOSURE TEST PUBLIC INTEREST DEFENCE = POST-DISCLOSURE TEST Works with whistle blowing Acknowledges admin, justice and role of Courts Builds in checks and balances Everyone makes decisions and whistle-blower is king Wrong decisions may cause harm of varying degrees Undermines checks and balances

19. DEPARTMENTAL POSITION AND RECOMMENDATION: Any refusal of access in terms of clause 19 is subject to appeal and judicial review. The Bill provides check and balances to ensure there isn’t an abuse of authority to classify information, and provides for lawful means to gain access to the information. It does not countenance the principle of being an adjudicator in one’s own cause as implied by the public interest defence. The requirements of the Rule of Law and the duty it poses on all citizens including the media is the duty to respect classification decisions until they are set aside. Hence we believe that the Bill provides the proper balance between competing interests in the public interest. In addition we make a proposal that a regulatory internal mechanism for internal members be incorporated in the Bill that will provide a further due process for members of government entities to follow when they seek to make disclosures in the public interest.

20. THE REVERSAL OF THE ONUS IN RESPECT OF THE OFFENCES IN THE BILL A number of submissions objected to the inclusion of the phrase “ought to have known” when rendering certain actions illegal. It is argued that in these instances offences may be committed even where accused persons may not have actual knowledge of the wrongfulness of their conduct. These offences it has been argued introduces a reverse onus in that the accused will then bear the onus of proving the reasonableness of his lack of knowledge. Recommendation There is no reversal of onus in the clauses as the state would still need to lead evidence and prove their case.

21. PENALTIES IN THE EVENT OF A CONVICTION It was submitted that “the severity of the penalties is disproportionate to the gravity of the crimes committed”. Recommendation The penalties are in line with international norms Apart from the offence of espionage, none of the provisions that deal with the remaining categories prescribe a minimum sentence, only a maximum sentence. Minimum and maximum sentences provide guidance to the courts - although the courts have discretion to impose lesser sentences, as stipulated for espionage in Clause 36(4), where there are substantial and compelling circumstances The Bill does not interfere with the discretion of the Courts. The regime of minimum sentences is neither new nor foreign to our jurisprudence and was confirmed by the Constitutional Court in the matter of S v DODO 2001(1) SACR 594 (CC).

22. CONCLUSION The input and submissions made by the public and various organs of society on this Bill are appreciated We believe that the Committee will take all of these into consideration as it deliberates on this important piece of legislation and ensure that the appropriate balance is struck between national security imperatives and the right of access to information.

23. APPEALS Positive Response De-classify and Access Not Granted No access CourtsResponsible Minister Not Granted Head Of Organ Of State