Interception & Monitoring Bill: deliberations

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Justice and Correctional Services

19 February 2002
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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
20 February 2002
INTERCEPTION AND MONITORING BILL: DELIBERATIONS

Chairperson: Adv. de Lange (ANC)

Documents Distributed:
Proposed Consolidation of Chapters 3 and 4 of Interception and Monitoring Bill [B50-2001] (Working Doc IMB 74--20/2/02)
Letter from Chair to SAPA Parliamentary Editor re: Report on Section 49 of Criminal Procedure Act

Relevant Document:
Interception and Monitoring Bill [B50-2001]: Working document, Draft 2

SUMMARY
The Chair opened the meeting by noting that legal advisor Labuschagne had prepared a proposed consolidation of Chapters 3 and 4 of the Interception and Monitoring Bill. In the Chair's estimation, this had greatly improved the text by combining treatment of "application" and "issuance" of interception directions, rather than treating them in separate sections. The proposed consolidation was distributed to Committee members in anticipation of discussing it as part of ongoing deliberations on the Bill.

Also distributed was the Chair's February 18 letter to SAPA's parliamentary editor, calling attention to her "incorrect conclusion" as to whom he was criticising last week concerning delays in implementation of Section 49 of the Criminal Procedure Act, and effectively reiterating that such criticism was directed at National Police Commissioner Selebi, not Safety and Security Minister Tshwete.

MINUTES
Among the provisions of consolidated Chapters 3 and 4 of the Interception and Monitoring Bill discussed were:
Clause 11 Application for, and Issuing of, Interception Direction--
Clause 11(1)
It was noted that the "application" and "issuance" components are now combined in this section. The Chair referred to the relevant definitions, as found in Clause 1. Concerning the definition of "applicant", the Chair commented that it need not include "municipal police" and "law enforcement officer", as authority to ask for an interception direction should be reserved to a more strictly prescribed senior police level. He suggested that the generally broad scope of "applicant" be flagged for further consideration. Also the definition of "Directorate" should be expanded to ensure that the Scorpions are included in its ambit.

Clause 11(2)
The Chair questioned deletion of the requirement that the identity of the law enforcement officer executing the interception direction be included in the application to the court for such authority. He acknowledged that the deletion may have been motivated by concern for the safety of police personnel. However it is important for the judge considering the application - in a closed proceeding to enhance police safety - to know who will be exercising the authority if granted. As such, the Chair suggested that the executing officer's identity be disclosed, "if appropriate", thereby giving the police the opportunity to persuade the judge why such disclosure is unreasonable.

The Chair disagreed with the deletion of Clause 11(2)(d) from the consolidated document. He said that its requirement - that police demonstrate that other investigative methods have failed in order to justify issuance of an interception direction - is important. This should be part of the information supplied to the judge considering the application. He requested that the subclause be restored, adding that the concern expressed by Adv. Masutha (ANC) as to confidentiality of information in such proceedings was a valid one, but that their ex parte, closed nature minimized the risk of leaks.

Clause 11(5)
The Chair opined that this section, setting the standards for issuance of an interception direction, is a critical part of the Bill.

Noting that the definition of "serious offence" must be reviewed, he said that Clause 11(5)(a)(i)'s "probably" v. "possibly" standard for commission of such an offence must be resolved. However the "cannot be investigated in another appropriate manner" clause must remain.

The "actual threat" language in Clause 11(5)(a)(ii) is acceptable, but the Chair suggested that the term "compelling national interest" must be qualified with the adjective "economic" (which would apply, for example, to the rand's devaluation), or otherwise specified.

The Chair commented that the concept of "potential threat" in Clause 11(5)(a)(iii) needs to be refined, with a higher test appropriate.

Noting that Clause 11(5)(a)(iv) provides the mechanism for assisting international investigations, via requests processed by SAPS and related agencies, the Chair suggested that definitions of "organized crime" and "terrorism" must be carefully considered. One could possibly rely on how these terms are construed in the international agreements that underpin such requests for assistance.

Adv Masutha (ANC) also noted the difficulty of dealing with "terrorism" if the Bill does not refer to specific anti-terror legislation. Ms Chohan (ANC) added that cooperation under this Bill must be consistent with prior international agreements. She questioned whether this Bill could be used to assist a country that does not have a mutual assistance agreement with SA.

The Chair responded that this could be covered under (iv)(bb)'s allowance for action to be taken in the interests of the nation's "international relations."


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