Briefing note: What do the concessions mean?
On Friday 24 June (the previous deadline to pass the Secrecy Bill, since extended to 23 September 2011), MPs from the ruling party proposed new concessions on the Secrecy Bill, which Right2Know has welcomed as a commitment to begin the real work of fixing the Bill. While no document was tabled during Friday’s meeting, Mr Landers verbally proposed the following amendments:
1. Limit the application of classification primarily to state security services
This would mean that only the state security services would have the authority to classify information. In this proposal, there would be an opt-in clause included for other state organs to apply for the authority to classify information. This is an important step in reducing the power of the Bill, as long as the opt-in process is subject to independent oversight. However, even within the state security services there needs to be further discussion to ensure the Bill’s secrecy provisions would only be applied according to a narrow and strict definition of “national security” – the current definition is still extraordinarily broad. The committee still needs to examine clauses which criminalise the mere possession of any information relating to any state security matter whatsoever. These clauses would prevent any kind of public scrutiny of the state security services.
2. Include an independent appeal mechanism
The ANC agreed to the appointment of a retired judge as the appeal authority to resolve disputes under the provisions of the Bill. This proposal together with the changes to the review panel also discussed in that meeting is an important step towards ensuring that state security services would be held accountable to the public.
3. Removing minimum prison sentences for disclosing state secrets and ensuring that penalties for releasing a state secret are proportional to any harm caused.
These concessions are a positive step towards amending the Bill to ensure that whistleblowers and journalists are protected. However, the ANC’s concessions stop short of including an explicit and unambiguous public interest defence for releasing state secrets, which would be vital to protect those who release a state secret to expose wrongdoing. It is also unclear whether or not simple possession of a classified document would still be criminalised and whether the penalties would still apply to ordinary members of the public or only to officials whose job is to keep secrets. This concession means that MPs will have to undertake a complete revision of the penalties clauses as they currently stand.
