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

Meeting report

The Committee observed a minute’s silence for the thirteen South African soldiers killed in the Central African Republic.

Deliberations on the General Intelligence Laws Amendment Bill [B25-2011]
The State Law Adviser had prepared a document that included the amendments to the Bill proposed by the African National Congress (ANC) and the Democratic Alliance (DA).  Two technical amendments were proposed by the State Law Advisers.

The Bill repealed the Electronic Communications Security (Pty) Ltd (COMSEC) Act.  The intention was to transfer the functions of COMSEC to the State Security Agency (SSA).  However, the Committee had established that the Bill did not make provision for the transfer of all the COMSEC functions to the Agency.  Further amendments to clauses 2 and 4 of the Bill were introduced during the proceedings.

Advocate Hermann Smuts, State Law Adviser, took the Committee through the proposed amendments to the Bill.  After a break in the proceedings, the additional amendments to deal with the transfer of the COMSEC functions were dealt with.  The acceptance or rejection of the proposed amendments by the ANC and the DA were noted.  (The Members of the Committee representing COPE and the IFP did not attend the meeting).

Clause 1
The proposal by the ANC was to omit the definitions of ‘foreign signals intelligence’ and ‘information security’ from the Bill.  The phrase ‘information security’ was not used in the Bill or the Act and a definition was not required.  A consequential amendment was to replace the word “definitions” with “definition” in paragraph (c).

The DA objected to the omission of the definition of ‘foreign signals intelligence’ but accepted the other two proposals.

The DA had proposed amendments to the definitions of ‘counter-intelligence’, ‘departmental intelligence’, ‘domestic intelligence’ and ‘foreign intelligence’.

The ANC accepted the proposals concerning the definitions of ‘counter-intelligence’, ‘departmental intelligence’ and ‘domestic intelligence’.  The proposal concerning the definition of ‘foreign intelligence’ was rejected.  ‘Foreign signals intelligence’ and ‘foreign intelligence’ were National Communications Centre (NCC) competencies.  All references to the NCC and the National Intelligence Coordinating Committee (NICOC) were withdrawn from the Bill.

The objection of the DA to clause 1 was noted.  The Committee accepted the proposed amendments to clause 1.

Clause 2
The ANC proposal was to omit paragraphs (b), (c), (e), (g), sub-paragraph (b) (iv) under paragraph (h) and paragraph (k).  The proposed amendments were in accordance with the decision to omit references to NICOC and the NCC.  The word “products” to be omitted from paragraph (d).  The Act referred to ‘intelligence’ only and not to ‘intelligence products’.  Sub-section 2A was inserted to accommodate the transfer of COMSEC licensing exemptions to the SSA.

Mr D Maynier (DA) queried the omission of the word “products”.  The matter had not arisen during previous discussions on the Bill.  He assumed that NICOC had dealt with intelligence material that had already been analysed.  The inclusion of the word “products” could benefit NICOC and the proposal to omit the word should be reconsidered.

The Chairperson advised that the omission of any reference to the NCC and NICOC was a matter of policy.  The proposed new White Paper on Intelligence would be a more suitable forum for introducing policy changes relevant to the NCC and NICOC.  The intention of the Bill was to establish the SSA as a legal entity so that proper managerial and financial controls could be implemented.

The DA objected to the omission of paragraph (h) (sub-paragraph (b) (iv)) and paragraph (k).  If these two paragraphs were omitted, the NCC would be regulated by subordinate legislation (i.e. regulations).  The regulations were classified and not subject to public scrutiny.  Sections 209 and 210 of the Constitution intended intelligence services to be regulated by national legislation.  The DA considered the proposed amendment to contravene the Constitution and urged the Committee to give the matter careful consideration.  The original proposal had been to subject foreign signals intelligence to the Regulation of Interception of Communications and Provision of Communications-related Information Act 70 of 2002 (RICA).  Other democracies had found it difficult to formulate legislation dealing with foreign signals intelligence and the omission of the provisions concerning foreign signals was a step backwards for South Africa.

The Chairperson said that the issue had been debated during earlier deliberations and briefings on the Bill.  The Joint Standing Committee on Intelligence (JSCI) conducted oversight over the NCC and NICOC.  Members of the JSCI required top secret clearance.  Mr Maynier’s understanding of the NCC was not correct.  The ruling party was not averse to dealing with matters related to the NCC and NICOC but the Bill was not the correct forum for this.

Mr Maynier understood the ANC position concerning the NCC and NICOC but pointed out that it was unlikely that the State Security Agency Bill would be introduced before the national elections in 2014.  He suggested that the Committee considered retaining paragraph (k) and sub-paragraph (b) (iv) under paragraph (h) as an interim measure to avoid subjecting the NCC to constitutional challenges.

Mr Dennis Dlomo, Acting Director-General, SSA was concerned that an incorrect impression was created that the NCC operated outside the framework of the Constitution.  He explained the background to the establishment of the NCC and assured the Committee that the constitutionality of the NCC was not an issue.

The Chairperson confirmed that matters related to the NCC were not before the Committee.  He reiterated that the JSCI was responsible for oversight over the NCC.

The DA agreed to the insertion of sub-section 2A.  The party had proposed four further amendments to clause 2.  The ANC agreed to the first proposal to insert sub-paragraph (b) (i) into clause 2.

The DA had proposed that paragraph (g) was omitted from clause 2 as it appeared to be a duplication.

Mr Dlomo explained that Act 39 included separate sections to deal with the foreign and domestic intelligence mandates.  The omission of paragraph (g) could result in confusion over the two mandates.

The DA withdrew the proposal to omit paragraph (g).  The third proposal was to amend sub-paragraph (b) (iv) under paragraph (h).  The fourth proposal was an amendment of paragraph (k). The ANC rejected both proposals as the relevant paragraphs dealt with NCC matters and would be omitted from the Bill.

The objection of the DA to clause 2 was noted.

Advocate Smuts subsequently proposed four further amendments to clause 2 to make provision for the transfer of COMSEC functions to the SSA.  The words “identify”, “and infrastructure” were inserted in sub-paragraph (b) (i) and “cryptographic and” were inserted in sub-paragraph (b) (ii) under paragraph (h).  Sub-paragraphs (d), (e) and (f) were inserted into paragraph (k) of clause 2.

The ANC and DA agreed to the further amendment of clause 2.  The Committee accepted the proposed amendments to clause 2.

Clause 4
The DA had proposed four amendments to clause 4.  The ANC rejected the proposed amendments on the basis that the proposal would impact on a number of other Government departments, which had not been consulted.

Mr Maynier explained that the concern was that the independence of certain Chapter 9 institutions (including the JSCI and the Inspector-General of Intelligence) could be undermined by the granting of additional powers to the SSA.  He suggested that the Committee give careful consideration to the issue but conceded that his understanding might be faulty.  He suggested that the Committee requested a legal opinion from the Parliamentary Legal Adviser.

The Chairperson pointed out that clause 4 dealt with situations where there was a potential threat to the country.  He doubted that an independent institution would withhold information from the SSA under such circumstances.

Mr M Sonto (ANC) observed that no institution should be exempted from investigation by the SSA if the national security of the country was threatened.

Ms H Mgabadeli (ANC) and Mr F Bhenghu (ANC) initially supported the suggestion that the Committee sought legal opinion from the Parliamentary Legal Adviser but later reversed their position and rejected the suggestion.

Mr Dlomo explained that the Preamble to the Constitution set out how South Africa would conduct its business.  Chapter 11 provided further clarification, including that no State institution was required to accept an illegal order.  The security services were obliged to ensure that members operated within the constitutional framework.  Oversight structures were in place to hold the security services to account.  The acceptance of the proposed new clause requiring compliance with the Constitution (new clause 6, paragraph 5B) was further evidence of the intention to comply with constitutional requirements.  The State Law Advisers had certified that the Bill complied with constitutional requirements before it was tabled in Parliament.

The ANC rejected the proposed amendments to clause 4.  The objection of the DA was noted.

Advocate Smuts subsequently proposed further amendments to clause 4 to make provision for the transfer of COMSEC functions to the SSA.  Sub-sections (7) and (8) were added to paragraph (c).  The text of the sub-sections was transcribed directly from the current COMSEC Act.

The ANC and DA accepted the further amendments to clause 4.  The Committee accepted the proposed amendments to clause 4.

Clause 5
The ANC proposed three amendments to clause 5.  The amendments were of a technical nature and were intended to align the legislation with the original Act.

The DA agreed to the amendments to clause 5.  The Committee accepted the proposed amendments to clause 5.

Clause 6
The DA and the ANC agreed to the rejection of clause 6.  The Committee accepted the rejection of clause 6.

Insertion of new clause
The DA had proposed the insertion of a new clause 6.  Sub-section 5B required compliance with the Constitution and specified that section 199(5) and (7) must be duly complied with when any function was performed in terms of the Act.

Mr Sonto and the Chairperson shared the opinion that the clause was superfluous but the ANC agreed to its insertion into the Bill.  The Committee accepted the insertion of new clause 6.

Clause 7
The DA had proposed amendments to clause 7 that required regulations to be subject to the requirements of RICA and to be subjected to approval by the JSCI.

The ANC rejected the proposal.  The objection of the DA was noted.  The Committee rejected the proposed amendments to clause 7.

Insertion of new clause
The DA proposed the insertion of a new clause (after clause 7) that made any unlawful intelligence activities in lawful political activity an offence.  Penalty provisions were included in the proposed new clause.

The Chairperson pointed out that the public had to be given the opportunity to comment on legislative provisions that criminalised certain activities and imposed penalties before a Bill was passed.  Provisions concerning offences and penalties impacted on the mandate of the entity concerned.  It was not appropriate to include such provisions in the Bill.

Mr Maynier suggested that the proposed clause was included in the amendments of the Intelligence Services Act 65.  The severity of the penalty was a matter for debate but he was of the opinion that the offence was a serious matter.  He thought there would be overwhelming public support for the inclusion of the provision in the applicable legislation.

The ANC rejected the proposal.  The objection of the DA was noted.  The Committee rejected the proposed new clause.

Clause 8
The ANC and DA agreed to the rejection of clause 8.  It was not necessary to amend the long title of Act 39 as all provisions concerning NICOC were withdrawn from the Bill.  The Committee rejected the proposed amendments to clause 8.

Clause 11
The State Law Adviser proposed the amendment to clause 11 to refer to the Public Audit Act (which replaced the repealed Auditor-General Act).  The words “and the Office” to be inserted in sub-clause (aa) to make provision for the Auditor-General to conduct audits of the Office as well as the Services.

The ANC and DA agreed to the proposed amendment of clause 11.  The Committee accepted the proposed amendments to clause 11.

Clause 14
The ANC proposed the omission of paragraph (f).  The definition of ‘foreign signals intelligence’ was removed from the Bill.

The objection of the DA was noted.  The Committee accepted the proposed amendments to clause 14.

Clause 49
The ANC proposed the removal of sub-paragraph (sC) under paragraph (f).  Sub-paragraph (sC) made provision for regulations to be issued for the collection and analysis of foreign signals intelligence (an NCC competence).  Matters concerning the NCC were outside the mandate of the Committee.

The DA proposed the insertion of sub-section 2A under paragraph (g) that required regulations to be in accordance with RICA requirements and the insertion of paragraph (h) that required any regulations to be subjected for approval by the JSCI.  The rationale was that the NCC was not governed by national regulations.

Advocate Smuts confirmed that section 37 of Act 65 authorised the Minister to issue regulations.  If sub-paragraph (sC) was omitted from the Bill, the Minister would not have the power to issue regulations concerning the collection and analysis of foreign signals intelligence unless such power was vested in the Minister elsewhere in the legislation.

Mr Dlomo said that legislative consistency was necessary.  The intention was not to interfere with current mandates of the security services.  The Minister was required to issue regulations that would ensure the effective administration of the SSA.  The omission of sub-paragraph (sC) would not compromise the Minister’s responsibilities.

The ANC rejected the proposal of the DA concerning clause 49.  The objection of the DA was noted.  The Committee accepted the proposed amendments to clause 49.

The Chairperson asked the State Law Adviser to prepare instructions for the printing of the A version of the Bill.  The Committee would meet on 27 March 2013 to finalise the processing of the Bill.

Mr Maynier asked if the A version of the Bill would be printed by the following day.  It would be useful if Members had the opportunity to study the documents before the meeting.

Advocate Smuts confirmed that the instructions to the printers would be finalised the same day.  The documents could be e-mailed to the Committee Secretary for forwarding to the Members.

The Chairperson expressed concern over the failure of certain Members of the Committee to attend all the meetings.  He thanked Advocate Smuts, Mr Dlomo and their staff for the assistance provided during the deliberations on the Bill.

The meeting was adjourned.