Chairperson, the reason why this Bill has been so vociferously opposed is that the opposition parties, civil society, and members within the ANC itself were concerned that state departments would use the provisions of this Bill to conceal corrupt or illegal activities under the guise of classification. The ACDP voted against this Bill mainly because of the lack of the public interest defence clause and the fact that this Bill would trump the constitutionally mandated Promotion of Access to Information Act, Paia.
As we know, the Bill was amended significantly by the National Assembly and then again by the NCOP which, significantly, inserted the defence clause in section 41. The clause provides that any person who discloses or possesses classified information, where such disclosure or possession reveals a criminal activity, will have a full defence. So the question arises whether this is a public interest defence and how far this goes. As the ACDP, we view this as a significant step; some may say it is a stride or a leap in the right direction.
Whistle-blowers, journalists and ordinary citizens who reveal criminal activities, as contained in the classified documents, now have a full defence should they be prosecuted. In all good conscience, we need to conceal the significant amendment and improvement to the Bill.
However, our remaining concerns relate, firstly, to the standard of liability for espionage. Adv George Bizos' submission, which referred to the defence clause that was accepted by the ANC, also expressed grave concerns about the "negligence standard" which is inserted in the espionage clause, "the ought reasonably to have known standard", that introduces a reverse onus on an accused, which is constitutionally unacceptable. The NCOP committee accepted this argument for all the other offences but omitted to accept it for this specific offence. That does not make sense and it is problematic.
Secondly, we also align ourselves with the DA's hon Dene Smuts' consistent argument about the incorrect tagging of this Bill.
Provincial archives are the exclusive legislative competence of provinces, and National Parliament should not be legislating where such provincial competences prevail. We agree with the view that this Bill could be procedurally unconstitutional for that reason alone.
Together with the opposition parties, we share the view that we will be petitioning President Zuma on these narrow issues. We have come a long way and, yes, in all good conscience, we cannot call this a Secrecy Bill anymore.
Mr Sonto, you are right; that is what I said. We still have concerns, and we need to alert the public as well to the significant amendments. Let us however refer this Bill to the Constitutional Court so that it can give its final imprimatur on it to allay the concerns expressed by everyone. We have come a very long way, we are 99% through the way. Let us not fail the citizens in this last hurdle. Thank you very much. [Applause.]