General Intelligence Laws Amendment Bill: Ministry briefing & deliberations

Meeting report

Chairperson's opening remarks
The Chairperson informed Members that only two submissions had been received since the advertisement calling for public submissions on the General Laws Intelligence Bill was published, and said that there would seem to be little point in having public hearings in this case.

He noted that the National Intelligence Agency (NIA) staff were present to deal with questions as well as take the Committee through the Schedule.

National Intelligence Agency presentation on the Schedule to General Laws Intelligence Bill
Mr Dennis Dlomo, Acting Director General, Department of State Security, said that the Schedule to the Bill set out the laws to be amended.

The Security Services Special Account Act of 1969 was being amended in order to exclude those entities that had become obsolete. A column in the Schedule reflected what the specific changes were. There were similar changes made in paragraph (b).

Amendments being made to the Protection of Information Act of 1982 were set out on page 28,  and related to the definition for “state security matter”.

The Public Service Act of 1994 would be amended by replacing the references to “member of the intelligence service” to  “member of the state security agency appointed or deemed to be appointed in terms of the Intelligence Services Act of 2002”.

A definition of “state security agency” would also be inserted, noting that it was the agency referred to in section 5 of the Intelligence Services Act. The amendment to section 16, of Chapter 3, also sought to correct the references to NIA in the original Act. The references in Schedule 1 of that Act to South African National Academy of Intelligence (SANAI) and Chief Executive Officer of the SANAI would be deleted. The responsibilities would henceforth fall on the Director General of the State Security Agency (SSA).

All structures that had become obsolete would be deleted from columns 1 and 2. The NIA was exempted from the application of the Labour Relations Act. The exclusion would continue to apply to the SSA, but the however the references to obsolete structures would be deleted. He indicated that the NIA, South African Secret Service (SASS), SANAI and Comsec would become part of the new SSA, as defined in section 1.

Similar deletions would apply to the Basic Conditions of Employment Act (BCEA) and the Witness Protection Act of 1998. Changes to the Medical Schemes Act would include the deletion of Academy, Agency, Comsec and Service, which would be replaced with the reference to the SSA.

Changes to the Financial Intelligence Centre Act (FICA) would entail a substitution of NIA and SASS with a reference to SSA, particularly in section 12. In addition, “security screening”, in section 13 of FICA, would be replaced with “vetting”.

There would be amendments to the Private Security Act where reference to the “SASS” would be replaced with “SSA”. In section 3 of the Private Security Act, the references to “Directorate of Special Operations” would be deleted and replaced with “SSA”.

In the Regulation of Interception of Communications and Provision of Communication Related Information Act, the reference to “service” would be replaced with “agency”, with a definition that made it clear that this was the SSA.

Discussion
The Chairperson said that during the last meeting he had put to the Minister of State Security three questions relating to a definition for “canteen”.

The Chairperson had also sought clarity sought on page 10, at line 50, on the reference to “foreign signals intelligence” as well as on the reference to clause 37(1). He queried what the Minister had meant when he stated, in the previous week, that “foreign signals intelligence” was already in the Act.

Mr Dlomo replied that the Minister had indicated in the previous week that there were certain major amendments that had been made, but were not yet in operation. The reference to them in clause 37 was correct, but these amendments had not yet been put into effect. “Canteen” would bear the same meaning as the dictionary definition; namely, a recreational facility where refreshments were available. There might have been confusion in the articulation from the Minister, and he may have been referring to what was in the Comsec Act. The idea was that this Bill should not deal with new matter, but only with the initiatives that arose from finalisation of the document dealing with national interest, the national security strategy and the revision of the White Paper on Intelligence. This would pave the way for the debate on what sort of intelligence structure South Africa should have.

Mr B Fihla (ANC) said that police were worried about the expansion of the private security industry, especially as there were some former intelligence agents who were leaving to join this industry. He asked if the amendments to the Private Security Act, by this Bill, would affect the entire industry.

Mr Dlomo replied that the South African intelligence community, through its Ministers, had already gone on record to indicate that since the advent of democracy the private security industry had been a source of concern. This was because of the size of this industry, as well as the number of weapons in the hands of those in this industry. In addition, there were a number of former intelligence operatives, not just from the Intelligence Agency, who had left with the know-how of the modus operandi of the intelligence community, and were now bringing this into the private security industry, with the potential to compete against the state, or even to assist adversaries. Certain provisions in the Bill sought to ensure that those who came from the state security community did not ply their trade in the private sector without the approval of the state, and without knowing what their knowledge would be used for and who would benefit. There would also be a five-year cooling period, in which these former operatives could not work within the same industry as their previous employment within the state. This would ensure that they could not, on one day, work for the state and, on the next day, work against it.

The Chairperson said that in the near future it would seem that the private sector would be used more and more, as this had been the trend overseas. This begged the question whether the period for the restraint of trend was sufficient, and he asked what criteria had been used to set this period.

Mr Dlomo replied that he would not go into details, but would provide a broad overview. Essentially, the criteria required that there would be an evaluation of the kind of job for which the operative intended to use his or her skills, upon application. There would have to be conformity with existing laws as to what the operative wanted to do. The Agency would also decide to grant or refuse permission, based on its own threat assessment.

Mr P Bhengu (ANC) asked why the issue of Clause 37(1) was not picked up previously.

The Chairperson followed up by asking why nothing had been done to repeal this, or to adjust it in this Bill.

Mr Dlomo said that the Department of State Security was still trying to find out why this was not effected yet. This may have been an oversight, as a result of the hand over from the previous to the present Minister. The Ministry had not been aware that this had happened, as it only came to light when the Ministry was working with the Office of the Chief State Law Adviser. This matter should be treated as work in progress. It was very risky to appeal something that was not known, and the Ministry was dealing with this in accordance with the advice it had received from the Office of the Chief State Law Adviser.

Mr M Sonto (ANC) referred to Clause 47 on page 23 and said that, as the Minister had indicated,  further engagement was necessary. He questioned the progress on this.

Mr Dlomo replied that he was not sure, but that engagements were normally done with a consultation committee, as there were no unions in the Department. The issues were to be seen as work in progress, and were ongoing. The only relevant part of the clause set out that when the regulations were drafted, there would be internal consultations with the Consultation Forum, through the Intelligence Services Council on Conditions of Service (ISCCS). The ISCCS made recommendations to the Minister, who then took these to the Joint Standing Committee on Intelligence. This process would be completed after the finalisation of the consultation process.

Mr D Maynier (DA) said that the question of foreign signals intelligence was not well understood outside of the intelligence community. He asked Mr Dlomo to explain what foreign signals intelligence entailed, what institution currently collected foreign signals intelligence, and under what legislative mandate it was gathered. He also wondered why it was necessary to insert a new definition on foreign signals intelligence, and why the presentation seemed to suggest that there was a new statutory provision for foreign signals intelligence. He also asked why there was a need for regulations on the collection and analysis of foreign signals intelligence. Finally, he wanted to know if the new interventions would go some way towards addressing the issue of foreign signals intelligence being unlawful and unconstitutional.

The Chairperson agreed that clarity was needed on this issue, as the operational nature of foreign signals intelligence was necessary. However, he noted that some Members were not present at this meeting, and if a response was given now, then it was likely that the whole exercise would have to be repeated. It would be preferable if there could be a proper presentation on the issues in the presence of most Members, especially for those who were not familiar with the concept. However, he noted that a full response was necessary and would be provided to Mr Maynier.

Mr Fihla agreed with the Chairperson that this was an important topic.

Mr Maynier also conceded that since this was an important topic, that needed to be addressed specifically, the response could stand over.

Mr Maynier indicated that he had some further questions. He asked what were the three new statutory mandates for which the State Security Agency (SSA) was responsible. How did the concept of national security relate to the SSA’s mandate? Why was it necessary to include sedition under the definition of counter intelligence? There was a concern about the mandate to collect political intelligence, and he asked if there was a mandate in the Bill that would prevent the SSA from continuing to collect political intelligence. Finally, he asked who determined the intelligence priorities for a particular cycle or financial year.
 
The Chairperson said that political intelligence was a difficult concept that did not just relate to politicians, but also included people who wanted to know where the basic services that ought to be provided to them were located.

Mr Dlomo said that, from a policy perspective, the mandate did not include anything new. The current structure of the intelligence agency was completely new and had never existed before. It was agreed, across political lines, that the National Communications Centre (NCC) would be a shared communications centre, as there would no longer be any stand-alone structures of a similar nature, that the NCC would not have a mandate of its own, and that the NCC would be a national asset that was sensitive. This agreement was in the public domain. When the Intelligence Services Act of 1994 came into operation there was no reference to this capacity, and that Act merely provided for protection of sources and methods, which was done. The Ngcaba Commission then recommended that there should be centralisation, which would given the advantage of economies of scale on the existing technology. The Commission never recommended that there should be legislation to this effect, and that was why legislation was never drafted. However, successive Ministers had pondered legislating on the issue. If there was a need for change in this particular area then this would have to be done via a broad consultative process. The current wording of the Bill resulted from work done by Comsec, and that already existed in various statutes. Cabinet had made it clear that cyber security was to be done by the SSA, with the mandates to provide strategic guidance in terms of the policy framework, as well as assisting in the execution of the function. Cyber security was a new concept; until now it had been Information and Communications Technology (ICT) security that was a concern. However, since the time that the ideas were first conceptualised, there had been other developments, and those were the “new” matters to which he had referred. The functions that had been taken on board were those of Comsec and SANIA.

Mr Dlomo explained that national security and national interests were two concepts that were foremost in the intelligence community across the world. The Department of State Security was seeking to have a national consensus on what “national interest” entailed. A discussion document would be disseminated to assist in arriving at national consensus. “National security” already had an accepted definition, and was incorporated into the new Protection of State Information Bill and approved by the National Assembly. The definition was working for Department and it had been taking on board in order to have consistency in understanding of what “national security” entailed. National security did not include legitimate political activities or lobbying. He added that South Africa had always had an intelligence cycle that had never been classified. Various incoming Ministers had outlined these in their speeches over the years. Every year there was a national intelligence estimate that was approved by Cabinet, and that was based on perceived threats. National intelligence priorities were proposed by the National Intelligence Committee, and then dispersed amongst the various national intelligence structures. The only change was that in future, it would be made clear that this responsibility lay with Cabinet (as it had always been). The political leadership had undertaken to assist the Department in dealing with sedition within the counter intelligence environment. The Department had made it clear that the inclusion of national security, together with sedition, would allay the fears that free political speech would be undermined. There were additional checks and balances where the National Director of Public Prosecutions (NDPP) was involved.

The Chairperson referred to page 28 in the Schedule and said that the whole Act mentioned in this portion would be repealed once the Protection of State Information Act was brought into operation. He asked if this was likely to cause any problems.

Mr Dlomo said that it was not desirable that any pre-emptive measures be taken in anticipation of certain situations arising. The current tasks and undertakings with which the Department was currently facing had to continue.

Mr Maynier said that if Mr Dlomo was of the opinion that the new definition on sedition would exclude lawful political activity, this would surely then mean that section 2 of the National Strategic Intelligence Act would have to be amended, in order to replace the existing concept of security with the new concept of national security.

The Chairperson added that the focus of the Protection of State Information Bill was to classify information. There had been complaints that the concept of “national interest” for classification purposes had been too wide, and the wording of that Bill was then amended, to substitute the concept of “national security”, for purposes of classification only. Intelligence operatives did not just deal with classification, but the work that they did also included matters of security, and not only national security. Therefore it could not be expected that intelligence could simply sit back where a matter involved the security of the country.

Mr Maynier said that he thought Mr Dlomo was incorrect in stating that the narrower concept of national security addressed the broad mandate of the agency. The mandate of the State Security Agency was unchanged, and was contingent on the existing concept of national security provided for in the National Strategic Intelligence Act.  

Mr Dlomo said that it was correct to state that security was broader than just national security, as it included considerations of national and public security, but also information security, which was broken up into ICT, cyber and computer security. The personal security field would include the protection of citizens by the police. The concept was deliberately broad, as both threats and perceived threats had to be taken into account. There was a need to narrow the scope in keeping with constitutional obligations. There was no intention to broaden the mandate of the civilian intelligence community, but the intention, in this process, was to make technical amendments in order to ensure that the SSA had a defined mandate and was able to consolidate intelligence structures as a prelude to a major national debate on a new South African intelligence dispensation.

The Chairperson said that there would be a need, at a later stage, to get clarity on the questions raised by Mr Maynier.

Mr Dlomo said that he had dealt with some of the technical issues, but some of the questions included policy issues, which would be dealt with by the Minister.

The Chairperson announced that the next meeting would be on 22 March 2012.

The meeting was adjourned.