BILL WATCH 53/2021
[2nd August 2021]
Cyber and Data Protection Bill Requires Correction by both Houses
Note on the New Title of the Bill
One of the many amendments to the Bill made by the National Assembly was to change its title at the request of the Minister of ICT, Postal and Courier Services, by the omission of the word “Security”. The Bill before the Senate was accordingly called the Cyber and Data Protection Bill.
Senate Passes the Bill on 28th July
On 28th July the Senate passed the Cyber and Data Protection Bill, as amended by the National Assembly. Senators had praised the Bill during the Second Reading debate the previous day The Committee Stage on 28th July lasted only a few minutes; Senators were silent, raising no objections and suggesting no amendments. The Senate passed the Bill immediately afterwards. Ordinarily, this would have meant that the Bill would then be sent to the President for assent and, finally, publication in the Government Gazette as an Act of Parliament.
Discovery of Error
On the 29th July the Deputy President of the Senate informed Senators that an error had been discovered in the Bill and that the Bill would be “recommitted” in terms of Standing Order 158.
Recommittal means that the Senate Committee Stage will be reopened to allow correction of the error. As the Senate will not sit again until Tuesday 17th August, this will not happen before then.
Note on correction of errors discovered in Bills after being passed by a House: The Standing Orders of both Houses recognise that errors may be discovered in Bills after a House has ostensibly finished with it. A distinction is drawn between minor errors, such as spelling or grammatical mistakes and renumbering of clauses arising from amendments made during the Committee Stage, and other errors. Under Senate Standing Order 157 the Clerk of Parliament can correct such minor errors under the direction of the President of the Senate.
Standing Order 158, on the other hand, states that other errors must be dealt with in the normal way for amending a Bill. The normal way to amend a Bill is by notice of motion that the amendment be made to be dealt with in the Committee Stage – in other words, the Committee Stage of the Bill has to be re-opened [hence the use of the word “recommitted"] and a motion to correct the errors must be presented.
What is the Error?
The Notice of Amendments by the Minister states that he will propose the deletion of clauses 5 and 6 of the Bill.
Clauses 5 and 6 are hangovers from the original Bill of 2019, since when the Bill has been subjected to much public comment and to reconsideration and alteration by Government. The clauses establish a Cyber Security Centre and provide for its mainly advisory functions. In fact all those functions, and more, are assigned to the Postal and Telecommunications Regulatory Authority [POTRAZ] by clause 31 of the Bill. In short, the two clauses should not be in the Bill because they duplicate unnecessarily the later clause, clause 31.
Intensive Review of the Bill a Must
An obvious question arises : Could there other errors?
Sadly the answer to this question must be a resounding YES, given the generally poor quality of the Bill. In fact, we suggest that the next two weeks should be spent reviewing intensively the consolidated Bill that was passed by the Senate [ i.e. incorporating all amendments made by the National Assembly]. The purpose of the review would be to identify other errors and to allow them to be corrected when the Senate tackles the recommittal.
For instance clause 7 designates POTRAZ as the Data Protection Authority, but the related definition of “data protection authority or authority” [sic – note the careless use of the lower case instead of initial capitals] refers, not to clause 7 as expected, but to the section of the Postal and Telecommunications Act that establishes POTRAZ. And quick computer searches of the original Bill reveals no use of the phrase “data protection authority”, but frequent use of the word “Authority”. There is a need, however, for a proper definition of “Authority”, with the initial capital.
Corrected Bill Must Go Back to the National Assembly
As the correction of the identified errors will entail the Senate making substantive amendments to the Bill, it will have to be referred back to the National Assembly for its approval.