Speech by Steve Swart, ACDP MP, National Assembly, Cape Town, November 22 2011:

ACDP rejects Controversial Protection of Information Bill

"Last week we had a robust debate on the Bill last week. Today, the whole of South Africa watches as we in Parliament decide whether to pass this Bill in its present form, or not. The Bill has undoubtedly been substantially improved and credit must be given for all parties involved for this.

However, as we all know, the main outstanding issue relates to the absence of the public interest defence. The ACDP maintains its view that no compelling argument has to date been presented for not including such a public interest defence.

As argued by media lawyer Dario Milo, if documents can be released under PAIA in the public interest despite the threat that the contents pose to national security, "it would be contradictory and unfair in parallel circumstances to criminalise the access, disclosure and continued possession of classified documents that are significant for the public".

Given the history of secrecy and oppression in our country, we should be setting the example of openness and transparency. That is why we inserted the public interest override in PAIA, which is unique worldwide.

Whilst we acknowledge that the insertion of a public interest override similar to that in PAIA goes some way to remedy the situation, we believe it falls far short of a public interest defence.

It is ludicrous to compel a journalist who is leaked classified information which exposes state fraud or corruption, or even an imminent danger to public safety, to first surrender that document to the local police station before applying for declassification or approaching a court of law. The mere delivery of that classified document to the police will no doubt result in the arrest of such journalists or at least a police investigation into that journalist's source. This will result in the "chilling effect" on press freedom in the country, referred to by various commentators on the Bill.

At the very least, this public interest over-ride should be substantially expanded and strengthened. Why shouldn't a journalist be able to go straight to court on an urgent basis to legitimise his or her possession of a leaked classified document? If a public interest defence will not be entertained by the ANC, then, at the very least this over-ride must be improved during the NCOP process.

It is significant that the Public Protector, Adv Madonsela, has now also expressed concerns on the exclusion of the public interest defence. She states that it is difficult to conceive of any situation where public power could be legitimate "if it cannot be defended through public interest."

As I pointed out last week, we already have a public interest defence in our criminal law in the Films and Publications Amendment Act. Section 29 (4) provides that the offence of knowingly distributing a publication which advocates hatred based on race etc - and that constitutes incitement to cause harm, does not apply to a publication which "amounts to a bona fide discussion, argument or opinion on a matter of public interest. Our courts are thus well -versed in applying the public interest defence.

It would thus be the court - not the member of public or journalist - which balances the harm caused with the disclosure with the public interest sought to determine the public interest. Anyone who failed to persuade the court would face the possibility of imprisonment or a fine, depending on the sentence option followed. This would be a very serious deterrent to anyone casually tempted to disclose protected information.

Whilst today's vote is not the end of the process and the NCOP, as well as the President will apply themselves to the constitutionality of the Bill, I still believe that we as parliamentarians should use section 80 of the Bill to forward the Bill to the Constitutional Court for its consideration.

Issued by the ACDP, November 22 2011

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