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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
27 February 2002
INTERCEPTION AND MONITORING BILL: DELIBERATIONS
Interception and Monitoring Bill - Draft 2
The Committee considered the final three chapters of Draft 2 of the Interception and Monitoring Bill. No substantial changes were made to the Bill and it was handed back to Mr Labuschagne to incorporate the suggestions and changes made by the Committee.
Chapter 8: Prohibitions and Exemptions
Clause 40 Prohibition on disclosure of information
The drafter was asked to clarify ss (1)(d). Mr Labuschagne explained that the purpose of the provision was to allow a person who obtains information in terms of the Act to hand such information over to another authority.
The Chair suggested that the term "any criminal prosecution" in ss (1)(d) be reworded to include asset forfeiture. He then moved on to clause 40(2) and (3). He was unsure as to the purpose of ss(3), relating to the communication of privileged information, and questioned whether it found its source in foreign legislation.
Mr Labuschagne replied that he was also unsure as to its purpose, but that it had been found in foreign legislation and must therefore serve some good purpose.
The Chair was of the opinion that it was not the intention of the Bill to override rules relating to privilege and requested that the provision be placed in brackets for reconsideration. He then moved on to clause 41, regulating the disclosure of information by authorised persons for the performance of official duties.
Mr Labuschagne was of the view that s 41(1) was already covered by s 40(1)(a).
The Chair felt that the two provisions dealt with separate issues. Section 40(1)(a) focuses on performance in terms of the Act, while s 41(1) deals with the information obtained. He was unsure as to the meaning of ss (2).
Mr Labuschagne said that the provision allowed the person authorised to use information obtained via the interception, which related to serious offences other than those for which the direction was issued.
The Chair did not believe that the provision expressed this intention. In his view the provision was wrong in that it permitted general phone tapping. He questioned whether it was derived from foreign legislation.
Mr Labuschage answered that it was derived from foreign legislation but that the Committee could delete it, as he had no strong belief that it should be kept.
The Chair felt that the provision should be removed but asked that it be put in square brackets for the moment.
Clause 42 Listed equipment
The Chair briefly read through the definition of "listed equipment" which was the only definition that the Committee had not yet looked at. He recommended that the 4 month period prescribed in s 42(1)(c), during which the first notice of listed equipment be issued, should be restricted to a period of three months. Additionally, that the two month period detailed in s 42(2)(b), which must elapse between publication of the draft notice and the notice, be reduced to one month. The Chair then suggested that the word "surreptitious" be inserted into the provision as the equipment to which it related was to be used surreptitiously.
Mr Labuschagne responded that the word would relate to the interception itself and he did not see how the interception could be done surreptitiously.
The Chair said that the interception could be done secretly but that it should be done lawfully and he did not want the two terms to be mixed up. He suggested the word be question marked.
Mr Labuschagne noted that 43(1) creates a general prohibition on the manufacture, possession and advertising of listed equipment. Subclause 43(2) listed the exceptions to the general rule. He did not have any strong feelings on ss (e), but felt that the other provisions were necessary.
The Chair asked if the provision only listed the exceptions and did not create a permit system. Mr Labuschagne replied that permits were discussed under Clause 44.
The Chair recommended that s 43(2) be reworked to the effect that law enforcement agencies be automatically exempted while everybody else would be required to obtain a permit.
Clause 44 Exemptions.
Mr Labuschagne commented that the clause required persons to act on their own initiative to obtain permits. It was intended to apply only to the Internet Service Providers (ISPs), however that term was not used because they were not referred to anywhere else in the Bill or in the Telecommunications Act.
The Chair felt that the exception must be narrowed because it was not the intention to allow bigger service providers such as Vodacom, Cell-C, MTN, Telkom and M-Net to apply for permits or to even allow the Minister to consider applications made by them. The provision should therefore be reworded to make it clear that only ISPs were being referred to. He also felt that the term "any person from s 43(1)", as stated in s 44(1)(b), should be reworded or, alternatively, that provision should be made for it in s 43(1). He questioned the purpose behind ss (3).
Mr Labuschagne replied that the provision allowed the Minister to backdate a licence so that it applied from the date the application for the licence was made. The provision was added for the purposes of completeness.
The Chair was of the opinion that this was not possible because any interception undertaken by the applicant prior to the granting of a licence would be automatically illegal. The Minister could not therefore retrospectively legalise an illegal act. He felt that the provision should therefore be deleted. He also suggested that ss (6)(a) spell out more clearly that it applied to ISPs only, and that ss (6)(b) be reworded to oblige policemen to provide the necessary equipment upon the issuance of a court direction.
Chapter 9: Criminal Proceedings, Offences and Penalties
The Chair felt that s 45(1) should be made "subject to a decision in writing" and enquired as to the relevance of footnote 61.
Mr Labuschagne responded that it was the view of the Cape Law Society that information obtained under the Act be made available to be used in civil proceedings without having to obtain permission from the National Director, etc. It was Mr Labuschagne's opinion that this was the case in any event.
The Chair requested that ss (1) and ss (2) be reversed because ss (2) as it stood, was the general prohibition while ss (1) enumerated the exceptions. He also suggested that words to the effect of "anyone else authorised by him" be added directly after mention of the National Director in ss (1) so that not only he would be authorised to make a decision.
Clauses 46 and 47
The Chair suggested that the word "interfere" be included in s 47(1)(a) as he felt that the provision should be made a bit wider and not be restricted to tampering only.
Mr Labuschagne recommended that, as this was a standard offence clause, it should be left for consideration until after the contents of the Bill had been looked at. The Chair agreed.
The Chair enquired as to the meaning of ss (1)(e), which referred to any rights of the convicted person.
Mr Labuschagne replied that the provision referred to ownership and was important because it related to the forfeiture of articles.
The Chair was of the opinion that ss (1)(e) should be removed as the exemptions prohibited such equipment and it should therefore be automatically forfeit. In addition, if it was proved that another person, who was unaware that it was listed equipment, was in possession of such equipment, the original owner should not have a right to retrieve it. He felt that the provision should be worded to make it as clear as possible that equipment which fell outside the prohibition would be always forfeit while anything else would be at the discretion of the court. The Chair also felt that ss(3) should be reworked so that the Forfeiture Act would be made applicable.
Mr Labuschagne explained that the Minister of Telecommunications may grant a licence but that its issuance was carried out by the Independent Communications Authority. It was therefore felt appropriate that the Authority should be consulted with regard to the revocation of a licence in terms of the Bill.
The Chair did not feel that reference to the authority should be made for that reason but that the provision would stand for the present.
Chapter 10: General Provisions
Mr Labuschagne was asked to explain ss (2) which related to the availability of other procedures for obtaining archived or real-time call-related information. He noted that any archived or real-time call-related information could not be obtained on an on-going basis. He referred the Committee to footnote 67.
The Chair was not pleased by the first sentence of the footnote, which listed the purpose behind the provision as being so as not to "create additional paperwork for law enforcement officers". He did not consider this an appropriate reason. He further questioned the mention of the Criminal Procedure Act in the footnote.
Mr Labuschagne elaborated that the Law Commission had expressed the opinion that, as the Criminal Procedure Act and the Drugs and Drug Trafficking Act also made provision for the obtaining of call-related information, it was best to make the Interception and Monitoring Bill the only legislation which regulated this. The Law Commission proposed that the provision of the Bill which regulated the on-going supply of call-related information exclude the power granted in any other piece of legislation to obtain evidence in that respect. In addition, the provision did not place an obligation on service providers to inform the authorised person whenever new information becomes available.
The Chair stated that the provision related only to archived or real-time information and not to on-going information. This possibility should therefore not be excluded. He felt that ss (2) should be removed as it did not make any sense and also did not appear to be based on a good principle.
Mr Labuschagne explained that this clause enabled judges to make a decision jointly.
Clauses 53 to 56
The drafter recommended that Clauses 53 to 56 be considered after the body of the Bill had been finalised as they related to consequential amendments to other Acts. This was agreed.
The Chair questioned the use of the word "cease" in s 57(5) which states that the "directives issued in terms of section 6 of the Interception and Monitoring Prohibition Act, 1992, and which are still in force immediately before the fixed date, cease to be of force and effect from the fixed date". Mr Labuschagne agreed that the clause did not make sense.
The Chair suggested that it be reworded to the effect that directives issued under the old legislation remain in force in terms of section â€¦ until it was replaced, amended or withdrawn.
He agreed with Mr Labuschagne that provision should be made for the situation where a judge has to decide on a case where the application was brought in terms of the old legislation, after the coming into effect of the new legislation.
The Chair felt that this provision which allows the President to set the date of operation of the Act should be deleted as far as it gave the President the discretion to name the date. He felt that the short title of the Act, the Regulation of Interception [and Monitoring] of Communications Act 2002, was appropriate.
Dr Delport raised the possibility of the Bill overlapping the right of the Intelligence department to monitor call-related information. The Chair suggested that he look into the situation and make a recommendation which would then be incorporated in the Committee's report to Parliament.