Speaker, today the whole of South Africa watches as we, in this House, decide whether to pass this Bill in its present form or not. The Bill has undoubtedly been substantially improved and credit must be given for all parties involved for this. However, as we all know, the critical issue relates to the absence of the public interest defence. The ACDP maintains its view that no compelling argument has to date been presented, neither in the ad hoc committee nor here, about including or not including such a public interest defence.
As argued by media lawyer, Dr Dario Milo, if documents can be released under the Promotion of Access to Information Act in the public interest, despite the threat which the contents pose to national security, it would be contradictory and unfair in parallel circumstances to criminalise the access, disclosure and continued possession of classified documents that are significant for the public. Given the history of secrecy and oppression in our country, we should be setting the example of openness and transparency.
That is why we inserted the public interest override in the Promotion of Access to Information Act, which is unique worldwide. Whilst we acknowledge that the insertion of a public interest override in this Bill, similar to that in the Promotion of Access to Information Act, goes some way to remedy the defect, we, as the ACDP, believe it falls far short of a public interest defence.
It is ludicrous to compel a journalist or member of the public, who has leaked classified information which exposes state fraud or corruption, or even an imminent danger to public safety, to first surrender that document to the local Bobby at the police station before applying for declassification or approaching a court of law. Approaching a constable will no doubt result in an investigation into that journalist's source. This will result in a chilling effect on press freedom in the country. At the very least, Deputy President, this public interest override should be expanded and strengthened during the NCOP process.
It is significant that the Public Protector has now also expressed concerns. She states that it is difficult to conceive of any situation where public power could be legitimate if it cannot be defended through the public interest override. As I pointed out last week, we already have a public interest defence in our criminal law in the Films and Publications Amendment Act. Our courts are, thus, well versed in applying this defence.
Whilst today's process is not the end of the whole process as the NCOP will look at the Bill as well, as I said last week - and it wasn't a threat - I urge members, Minister, to look at section 80. One third of the members of this House can refer this Bill to the Constitutional Court. The good news is that the opposition does have a third of the members, and we will refer to the Constitutional Court. [Applause.]
We have a substantially improved Bill, but the insertion of a limited public interest defence will correctly balance the right of access to state information with legitimate national security concerns. Let us not fail the nation in this regard. The ACDP will not support this Bill. I thank you. [Applause.]