Parliament has thrown out more controversial legislation, including a Bill the Mail & Guardian and other media companies campaigned against.
The ad hoc committee on intelligence legislation decided on Wednesday not to refer to the National Assembly the Protection of Information Bill, which would have introduced a new regime for classifying state information as secret and tough criminal penalties for disclosing or receiving classified material.
That means the Bill will have to be redrafted and reintroduced in Parliament some time after next year’s election.
The M&G, with Avusa and a range of civil society groups, argued in committee hearings that the legislation would create a culture of excessive secrecy in government and potentially criminalise legitimate efforts to expose corruption and wrongdoing by the state.
The committee also threw out the Intelligence Services Amendment Bill and the National Strategic Intelligence Amendment Bill, which were designed to legalise the operations of the National Communications Centre (NCC), the highly sophisticated electronic eavesdropping and data storage facility that spy agencies are operating outside of any legal framework.
The three Bills add to a growing pile of legislation rejected by an increasingly activist Parliament in the wake of the ANC’s December Polokwane conference.
Others that were particularly controversial include the Expropriation Bill, the National Health Amendment Bill and the Medical Schemes Amendment Bill.
Ad hoc committee chair Cecil Burgess, who previously remarked that the Protection of Information Bill was “clumsily drafted”, said: “Members require more clarity and [the Bill] requires further deliberation and consultation — as it is not able to cover all aspects of private intelligence gathering — the committee needs to consider whether the Bill is appropriate.” A much “broader piece of legislation was necessary, to curb the role of private intelligence”, she said.
Committee members also said there were serious practical and constitutional matters raised by the Bill’s proposal to legalise the NCC.
Doubts were raised about the purpose of its data collection, how it is stored and used and how and by whom it is accessed.
Officially the NCC’s mandate is to intercept incoming communications from abroad or “foreign intelligence signals”. However, it is far from clear whether this selective approach is technically possible because all forms of electronic communication, regardless of origin, are stored on its databases.
Had the Intelligence Services Amendment Bill created the NCC as a government department it would have had to disclose its expenditure and would have been called to account for its spending and activities by Parliament.
But an alternative proposal was submitted by the intelligence ministry dropping the proposal that the NCC become a separate department, establishing it in law but without any provisions requiring it to account for its spending or activities, leaving it well resourced but faceless.
Neither proposal appeared to satisfy the committee and Burgess concluded that “while the NCC can be regulated properly through legislation, it requires more time — to debate with the department what kind of communication system do we need — what is the national strategic interest”.
As it now stands it remains unclear how this existing agency, which continues to work in close collaboration with Comsec, a voluntary body made up of telephone service providers, will be held accountable to the taxpayer. Equally unclear is whether the work it continues to carry out is subject to any controls outside the department of intelligence, whether it is even lawfully constituted and whether it is in contravention of constitutional provisions affording rights to individual privacy.
At present the NCC officially discloses neither its budget nor the full extent of its work.
With these concerns in mind the committee unanimously passed a resolution stating that “it was unable to process the Bills and the ad hoc committee withdraws — following the adoption of the reports, that will be duly tabled before Parliament”.
It may be too early for opponents of the legislation to celebrate, however. Many provisions of the Protection of Information Bill were welcomed, even by its critics, including provisions for declassification and penalties for illegal classification designed to protect the government from embarrassment or to hide wrongdoing. It remains to be seen what the attitude of a new intelligence ministry to reforms of this nature will be.