General Intelligence Laws Amendment Bill [B25-2011]: further deliberations

Meeting report

The Committee noted the apologies of Mr J Maake (ANC).

The Chairperson advised that the deadline for the Committee’s report on the Bill to Parliament was 28 March 2013.  The last sitting of the House was on 20 March 2013.  The Committee had requested an extension as it was unlikely that the processing of the Bill would be finalised in time.  The resolution to extend the deadline to 25 April 2013 was passed by the House on 19 March 2013. 

Deliberations on the General Intelligence Laws Amendment Bill [B25-2011]
The Committee was reminded that finalisation of the Bill was urgent.  The Bill amended the National Strategic Intelligence Act 39 of 1994, the Intelligence Services Oversight Act 40 of 1994 and the Intelligence Services Act 65 of 2002.  The Electronic Communications Security (Pty) Ltd Act 68 of 2002 (the ‘COMSEC Act’) was repealed.  The Committee needed to ensure that the Bill covered the transfer of the functions and assets of COMSEC to the State Security Agency (SSA).  COMSEC would be de-registered as a company and would cease to exist.

The Democratic Alliance (DA) had proposed amendments to clauses 1, 2, 4 and 49 and proposed the insertion of two new clauses.  The African National Congress (ANC) had proposed that the amendments concerning the National Intelligence Coordinating Committee (NICOC) and the National Communications Centre (NCC) were withdrawn and that provision was made for the inclusion of the COMSEC functions into the functions of the SSA.

Members were provided with all the supporting documents necessary for considering the Bill.

Several clauses were merely “technical amendments” to the existing legislation, for example correcting references to the SSA (the “Agency’), deleting references to obsolete intelligence structures, correcting the titles of officials of the SSA, correcting references to other Government structures and correcting references to other legislation.

Advocate Hermann Smuts, State Law Adviser took the Committee through each clause in the Bill.

Clauses 1 to 8: Amendments to the National Strategic Intelligence Act 39 of 1994
Clause 1: Amendment of section 1 of Act 39
The clause provided for the amendment of the existing definitions for ‘Agency’, ‘counter-intelligence’ and ‘National Intelligence Structures’ and the insertion of definitions for ‘foreign signals intelligence’, ‘information security’, ‘intelligence’, ‘national security’, ‘security competence’, ‘State security matter’, ‘terrorist and related activities’, ‘vetting field work units’ and ‘vetting investigation’.

Mr D Maynier (DA) introduced the amendments proposed by the DA to the definitions for ‘counter-intelligence’, ‘departmental intelligence’, ‘domestic intelligence’ and ‘foreign intelligence’.  The rationale for the omission of the word “sedition” from the definition for ‘counter-intelligence’ was that the classification of sedition as a common law crime might be unconstitutional; acts of sedition were already covered in the definition for ’national security’; the change was consequential to the proposed amendment to clause 2 (b) and that the Department had not made a convincing argument for retaining the word in the definition.
The proposed amendments to ‘departmental intelligence, ‘domestic intelligence’ and ‘foreign intelligence’ were consequential to the DA proposals concerning clause 2.

Clause 2: Amendment of section 2 of Act 39
The section dealt with the functions relating to intelligence matters of the SSA.

The DA had proposed amendments to sub-clauses 2 (b), 2 (g), 2 (h) (iv) and 2 (k).  The rationale for the proposed amendment was that it would exclude lawful political activity, advocacy and dissent from the mandate of the SSA.  The function of the SSA was to identify actual or potential threats to the national security (as defined in clause 1).  The definition of ‘national security’ was extensively debated during the processing of the Protection of State Information Bill.  The suggested amendments would give effect to Section 199 of the Constitution and afford the SSA protection against undue pressure or political interference by members of the Executive.  The suggested amendments were in line with international democratic trends, e.g. comparative Canadian legislation.

The suggested amendment to clause 2 (h) (iv) subjected the collection and analysis of foreign signals intelligence to the Regulation of Interception of Communications and Provision of Communications-related Information Act 70 of 2002 (RICA).  The proposed amendment to sub-clause (k) restricted the interception of communications for the purposes of protecting and promoting national security.

Clause 3: Amendment of section 2A of Act 39
Provision was made for the establishment of ‘vetting field work units’.  References to ‘security screening’ were replaced by ‘vetting investigations’.  The remaining amendments were technical.

Clause 4: Amendment of section 3 of Act 39
The provisions dealt with the functions of other departments of State with regard to national security intelligence.  The proposed amendments included two additional sub-clauses to compel departments of State to make the relevant information available to the SSA.

The DA suggested that clause 4 (a) was amended to address concerns over the potential proliferation of intelligence structures.  The party was also concerned that the proposed amendments to section 3 of the Act would diminish the authority of statutory entities, such as the Joint Standing Committee on Intelligence (JSCI) and the National Prosecuting Authority (NPA).

Clause 5: Amendment of section 4 of Act 39
Section 4 dealt with the establishment of NICOC.  The proposed amendments obliged the members of NICOC to participate in the activities of NICOC and to facilitate the coordination of intelligence product.

The ANC had requested that provisions concerning NICOC were withdrawn from the Bill.  The Chairperson observed that the Minister had agreed to leave the mandates of NICOC and the NCC unchanged.  He requested the State Law Adviser to take note of the request from the ANC and suggested that further discussions were held with the ANC Members of the Committee.

Mr Maynier would like to see the proposals for amendment of the sections.  He felt that certain provisions included in the Bill were eminently sensible and desirable and should be included, for example the provisions concerning attendance at meetings and the focus on a coordinated intelligence product.

Clause 6: Amendment of section 5 of Act 39
Section 5 dealt with the appointment of the head of NICOC.  The proposal was that the head of NICOC would be appointed by the Minister of State Security instead of the President and that NICOC should be located in the Office of the Minister.

The clause would be affected by the proposal to withdraw all provisions concerning NICOC from the Bill.

Insertion of new clause
The DA proposed that a new clause be inserted after clause 6.  The rationale for the insertion of the suggested section 5B in the Act was to ensure that the SSA acted in accordance with section 199 (5) and (7) of the Constitution at all times.

Clause 7: Amendment of section 6 of Act 39
Section 6 dealt with the regulations issued by the Minister. 
The majority of the proposed amendments to section 6 were changes to the terminology used in the legislation.  The insertion of sub-clauses (fA) to (fD) identified where additional regulations needed to be issued.

Insertion of new clause
The DA proposed that a new clause be inserted after clause 7.  The rationale for the insertion of an additional clause under the Offences and Penalties provisions was to make it an offence if any person gathered intelligence on lawful political activity, advocacy, protest or dissent.  The suggested new clause was consequential to earlier suggested amendments to exclude the lawful activities of political parties from the mandate of the SSA.

Mr Maynier advised that the issue was under discussion and the DA might propose further amendments at a later stage.

Clause 8: Substitution of the long title of Act 39
It would not be necessary to amend the long title of the Act if the amendments concerning NICOC were withdrawn from the Bill.

Clauses 9 to 13: Amendments to the Intelligence Services Oversight Act 40 of 1994
Clause 9: Amendment of section 1 of Act 40
The definitions for ‘Academy’, ‘CEO’, ‘COMSEC’, ‘intelligence services’, ‘Intelligence Services Entities’ and ‘South African Secret Service’ were deleted as these entities would no longer exist.  The definition for ‘State Security Agency’ replaced the definition for ‘National Intelligence Agency’.

Clause 10: Amendment of section 2 of Act 40
Act 40 of 1994 was subsequently amended by five Acts.  The last amendment was in terms of section 5 of Act 52 of 2003.  Advocate Smuts informed the Committee that the 2003 amendments to Act 40 had not been enacted in the electronic version of the legislation.  The print version of the Act 40 included the 2003 amendments.  He undertook to investigate the matter and report back to the Committee.

The meaning of the word ‘Office’ that was inserted in sub-paragraph (b) was the same as defined in RICA.  The 2003 amendments referred to above had included a definition for ‘Office’.

Clauses 11, 12 and 13
The amendments to sections 3, 4 and 7 of Act 40 were of a technical nature, e.g. correcting the terminology used, deleting references to obsolete entities and updating the references to other pieces of legislation.

Clauses 14 to 54: Amendments to the Intelligence Services Act 65 of 2002
Clauses 21, 24, 27, 29, 30, 31, 32, 33, 36, 37, 39, 40, 41, 43, 44, 45, 46, 47, 48 and 50
The amendments to the relevant sections of Act 65 were of a technical nature only.

Clause 14: Amendment of section 1 of Act 65
Definitions for ‘accounting officer’, ‘Agency’, ‘Auditor-General’, ‘Classified information’, ‘Council’, ‘foreign signals intelligence’, ‘former member’, ‘security competence’ and ‘vetting investigation’ were inserted or amended.  Definitions for ‘Academy’, ‘Chief Executive Officer’, ‘Intelligence Services’, Intelligence Services Council’ and ‘Service’ were deleted.

Clause 15: Substitution of heading of Chapter II of Act 65
The heading was changed to refer to the State Security Agency instead of the Service and Academy.

Clause 16: Amendment of section 3 of Act 65
The section dealt with the absorption of the previously separate intelligence structures into the SSA.

Clause 17: Amendment of section 4 of Act 65
The section was amended to refer to the composition of the SSA.

Clause 18: Amendment of section 5 of Act 65
The functions of the South African National Academy of Intelligence (the Academy) were transferred to the SSA.  The section was amended to make provision for the establishment of the ‘Training Fund for Agency’ and for all funding allocated for training purposes to be transferred to the Training Fund.

Clause 19: Repeal of section 6 of Act 65 and Clause 20: Repeal of section 7 of Act 65
The repeal of the sections was consequential to the consolidation of intelligence structures under the SSA (see section 5).

Clause 22: Amendment of section 9 of Act 65
The amendment established a Ministerial Advisory Committee on Training.

Clause 23: Amendment of section 10 of Act 65
The amendment was consequential to the consolidation of intelligence structures under the SSA (see section 5).  There would be only one Director-General of the State Security Agency, who would be required to submit an annual report on the activities of the Agency to the Minister.  The annual report would be tabled by the Minister in Parliament.

Clause 25: Amendment of section 12 of Act 65
Clause 25 (c) provided for the empowerment of the Minister to authorise repairs and maintenance to property occupied by the SSA.

Clause 26: Amendment of section 13 of Act 65
The amendment aligned the retirement ages of members of the security services with the retirement ages of other members of the public service.

Clause 28: Substitution of section 15 of Act 65
The section dealt with the discharge of members on account of long absence without leave.  The allowed period of absence without leave before disciplinary action was taken was amended to 10 working days (previously 14 consecutive days).

Clause 34: Amendment of section 21 of Act 65
The phrase “or person” was included in the prohibition for members of the Agency to go on strike.

Clause 35: Substitution of section 22 of Act 65
Section 22 (2) was amended by the deletion of the requirement that members of the Council on Conditions of Service needed to have “a thorough knowledge of the functioning of the Intelligence Services”.  The remaining amendments were of a technical nature.

Clause 38: Substitution of section 25 of Act 65
Section 25 (2) made provision for medals to be registered with the Bureau of Heraldry.

Clause 42: Amendment of section 29 of Act 65
The amendment specified the now defunct intelligence structures to which former members would have belonged.

Clause 49: Amendment of section 37 of Act 65
Section 37 (sA) to (sF) required the Minister to issue regulations for the described functions.

The Democratic Alliance proposed the insertion of provisions to ensure that the regulations for the collection and analysis of foreign signals intelligence (section 37 (sC)) were subjected to the RICA.  Any regulation made under section 37 to be submitted to and approved by the JSCI.

Clause 51: Substitution of section 40 of Act 54
Section 40 made provision for transitional arrangements. 

Clause 52: Repeal of the Electronic Communications Security (Pty) Ltd Act 68 of 2002 and sections 17, 18, 19, 20, 21, 22, 23 and 24 of the General Intelligence Laws Amendment Act 52 of 2003
The Electronic Communications Security (Pty) Ltd (COMSEC) would be de-registered as an entity and its functions transferred to the SSA.  The relevant sections of Act 52 of 2003 were defunct.

Clause 53: Substitution of long title of Act 65
The long title was amended in accordance with the amendments to Act 65.

Clause 54: Amendment of laws
Schedule 1 listed 12 Acts that required consequential, technical amendments.

Clause 55: Short title and commencement
The General Intelligence Laws Amendment Act, 2011 would come into effect on a date determined by the President by proclamation in the Gazette.

Discussion
The Chairperson noted that the Committee needed to ensure that the transfer of functions from COMSEC to the SSA was adequately dealt with in the Bill.

Advocate Smuts advised that clause 2 (h) (b) (i) to (iii) dealt with the functions of COMSEC.  COMSEC was exempted from certain licensing requirements in terms of the Broadcasting Act and the Telecommunications Act.  The exemption would be transferred to the SSA.

The Chairperson recalled that the Minister had suggested that the exemption from licensing requirements was included in the Bill.  He noted that the provisions under clause 2 (h) (b) (iv) and clause 2 (k) referred to functions of the NCC.  The ANC had requested that provisions concerning the NCC were omitted from the Bill.  He requested the State Law Adviser to prepare a document that included the proposals of the DA and the ANC for consideration by the Committee at its following meeting.

Other matters
The Chairperson thanked Mr N Fihla (ANC) for his contribution to the work done by the Committee.  Mr Fihla was re-deployed to the Eastern Cape Province.  Mr Maynier extended the good wishes of the DA to Mr Fihla as well.

The meeting was adjourned.