Chairperson, may I firstly thank the hon Burgers and hon Smuts for their kind words; as pointed out by various speakers, we have a vastly improved Bill. And this aspect has not been given a proper attention in the public discourse about this Bill. However, as we all know the main outstanding issue relates to the absence of public interest defence.
We as the ACDP vigorously argued for the inclusion of such a defence and not only to protect journalists but also members of the public to whom certain documents are leaked and then wish to expose fraud and corruption. In our view, no compelling argument was presented for not including such a public interest defence.
We need to be very frank about that. South Africa is unique with the Promotion of Access to Information Act override that we have and that was to a certain extent built in terms of this law, but places us in a unique situation when we compare ourselves to international best practice. We also already have a public interest defence in our criminal law in the Films and Publications Amendment Bill. A journalist or member of the public does not get off scot-free, they will be charged. However, it will be the court, and not a member of public or journalist, that decide. The court will balance the harm caused by the disclosure with the public interest sought to be promoted.
Anyone who fails to persuade the court would face imprisonment and it would thus be a very serious deterrent to anyone casually tempted to disclose protected information.
In the view of widespread fraud and corruption, included in our state security organisations, the omission of a public interest defence renders this Bill open to constitutional challenge. As far as international best practice is concerned, let us look at the Ontario Superior Court, which struck down similar sections in the Canadian legislation that were used to prosecute a journalist. The court found out that these sections arbitrarily and unfairly and with a blunt of criminal sanction restrict freedom of expression including freedom of the press.
The ACDP will not support the Bill without the public interest defence, and we would urge Members of Parliament who are concerned about the constitutionality in terms of section 80 of the Constitution, should the President assent to the Bill in its present form, to refer to the Constitutional Court. A third of the Members of Parliament can do so ... [Time expired.] [Applause.]