Problem

Effect

Proposal

Provision

The power to classify extends to all state entities including government departments, state-owned companies (which compete with private companies), provincial and local authorities

The veil of secrecy is cast extremely widely, extending hurdles to the free flow of information across the state sector and society

Limit classification to core security sector departments: intelligence, military, police, diplomatic service

Chapter 1 section 3

“National security” considerations override democratic rights

Classifiers obliged to give precedence to state security over citizens’ rights; ignores rights as key component of human security

Remove override to harmonise with constitutional values

Ch 1 s6 and s6(j) in particular

Key consideration in classification decisions is the “national interest” very broadly defined

Chronic and widespread over-classification likely

Use strictly-defined “national security” as key consideration in classification decisions

Ch 5 s11

Commercial info (often 3^rd party info) in hands of state is subject to classification if state or 3^rd-party interest may be prejudiced by disclosure

Veil of secrecy can be drawn over e.g. public tender processes, undermining clean and accountable government and exposure of corruption

Leave protection of commercial information to existing law. Classify commercial info only if justified under general provisions of Bill relating to national security

Ch 5 s12

Officials can classify en-bloc, and without recording reasons for classification decisions at time of classification

Chronic and widespread over-classification likely

Case-by-case classification decisions with contemporaneous recordal of reasons

Ch 6 s14

Classification levels determined by speculative levels of harm with low thresholds (e.g. “may be harmful”)

Chronic and widespread over-classification likely

Firm up test, e.g. “could reasonably be expected to cause demonstrable harm”

Ch 6 s15

Minister of State Security, whose business is secrecy, made arbiter of classification and declassification decisions

Further bias towards secrecy, no independent oversight

Chapter 9 oversight body necessary

Ch 6 s17(e), Ch 7 s21(3), Ch 10 s30 & 31

Extremely heavy penalties of up to 25 years; prescribed minimum sentences often without the option of a fine

Unusually harsh punishment; compounds chilling effect on free flows of info

Consider international standards

Ch 11

“Hostile activity offences” replicate spying offences but without onus on state to prove intention to benefit a foreign state, merely that offender “should have known” that breach of classified info would prejudice the state, even indirectly. Penalty up to 25 years

Can ensnare journalists and “information peddlars” (PIs etc) where state alleges breach of classified info prejudiced the state. Chilling effect on civil society and media exposure of corruption etc

At very least require an intention to prejudice the state

Ch 11 s33

Simple possession or disclosure of classified information is criminalised for any person, not just for those on whom there is an original duty to protect classified info

International best practice stems leakage of secrets at source (present and former state officials entrusted with secrets). This Bill places hurdles throughout society, penalising exposure even once the horse has bolted. Free information flows and speech are curbed. Publication appears a bigger concern than exposure to hostile forces

Apply penalties only to those who have an original duty to protect info (but subject to public interest defence in case of whistleblowing – see below)

Ch 11 s37-39

Simple possession or disclosure even of information not formally classified can be penalised by imprisonment of up to 15 years

Likely to induce self-censorship and further chill free flows of info due to grave uncertainty what constitutes a crime

Apply penalties only where information is formally classified

Ch 11 s38 & 43

Bill is made contiguous to Promotion of Access to Information Act (PAIA), meaning categories of info the state nominally must refuse in the course of PAIA requests become a criminal offence (3-5 years) for any person to disclose

Displaces the onus of protection from the state to society at large; places commercial and personal privacies best covered by ordinary law under the operation of national security legislation with harsh penalties; ignores the wide interpretive and discretionary boundaries of PAIA; induces uncertainty and self-censorship as harsh penalties apply to the disclosure of information not formally classified

Scrap provision

Ch 11 s38 read with ch 5 s(11)(3)(g)

Complete immunity from exposure for State Security Agency (NIA and SASS) and blanket ban over matters it handles. Disclosure of any “state security matter” – i.e. any matter “dealt with” by it or “relating to its functioning” – attracts penalties up to 15 years, regardless of whether the info is in material form or not, classified or not

Public oversight over the agency effectively banned; potential censorship of any other matter where the agency claims it is a matter within its remit; induces uncertainty and self-censorship as extremely harsh penalties apply to the disclosure of information not necessarily formally classified or even in material form

Scrap provision

Ch 11 s43 read with definition of “state security matter”

Provisions forcing new protections when classified information is submitted as evidence in court. Hearings regarding whether info to be disclosed in court are to be held in secret

Ordinary discretion of courts and principles of open justice undermined; justice cannot be seen to be done

Restore judicial discretion including whether to have any portion of a hearing in camera

Ch12 s46

Bill is not synchronised with whistleblower legislation (Protected Disclosures Act) and public interest overrides in the Promotion of Access to Information Act. The Bill trumps the protection these Acts afford to the disclosure of crime, abuse of power, threats to public safety, etc

Possession and disclosure of classified (and potentially some unclassified) info is penalised by the same heavy penalties of up to 25 years even where the intention is to expose e.g. corruption or environmental threats. Serious disincentive to whistleblowing and investigative journalism

Include a public interest defence, consistent with existing law, where unauthorised possession and disclosure is intended to serve the public interest

General