Interception and Monitoring Bill: deliberations; International Criminal Court Bill; amendments; High Court decision on Crossing

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Justice and Correctional Services

24 June 2002
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Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
25 June 2002
INTERCEPTION AND MONITORING BILL: DELIBERATIONS; INTERNATIONAL CRIMINAL COURT BILL; HIGH COURT DECISION ON CROSSING LEGISLATION

Chairperson:
Adv J H De Lange (ANC)

Documents handed out:
Interception and Monitoring Bill (Working Draft 4A)
Australian Communications Authority (ACU): Telecommunications Interception Review
ACU: Internet Service Providers interception obligations (email
info@pmg.org.za for doc)
EU legislation: Processing of personal data & protection of privacy in telecommunications sector
Amendments to Clause 10 of International Criminal Court Bill by Select Committee on Security and Constitutional Affairs (Appendix 1)
Interception and Monitoring Bill [B50-2001]: Proposed insertions presented by Department of Communications (Appendix 2)

SUMMARY
The Committee completed deliberations on the Interception and Monitoring Bill. A change to clause 29 now provides that the Minister may set different tariffs in respect of the different categories of service providers. Sentences to be imposed for offences in terms of the Bill would be not exceeding 20 years. An amendment to clause 28 from the Department of Communications has been further amended by the Portfolio Committee to require that a fund be set up with regard to the smaller internet service providers, into which they will pay an amount determined by the Minister. Monies from the fund will be used to purchase a pool of equipment that may then be shared between the ISPs. The drafter will polish up the Bill and the Committee will vote on the Bill at the beginning of next session.

The Committee considered the NCOP amendments to the International Criminal Court Bill, specifically to Clause 10. The National Director may now appeal to the High Court against a decision of a magistrate not to issue an order committing a person to prison pending the person's surrender to the Court.

The Chair commented on the Western Cape High Court decision on Crossing the Floor legislation.

MINUTES
Interception and Monitoring Bill
Clause 29
Mr Labuschagne, drafter for the Department of Justice, noted that the only change was to subclause (1)(a)(ii) where the word "reasonable" had been inserted as requested by Dr Delport. The clause now obliges the Minister to prescribe reasonable tariffs of remuneration to service providers.

Clause 30
Mr Labuschagne said that there were no changes to the clause. He had been informed that Telkom does obtain the identity numbers of every customer, usually over the telephone, and that they do conduct credit checks on the person before they install the phone. The fact that they physically install the phone means that they obtain the fixed address of every customer. He said that Telkom claimed that they would be forced to reopen office that have been closed, in order to obtain hard copies of identification documents in terms of the provision.

Mr Landers (ANC) commented that it was possible to apply for a phone with someone else's ID number.

Mr Mzizi (IFP) shared Mr Landers sentiments and felt that Telkom must be aware of corruption with regard to ID's. He believed it necessary for the ID document to be verified by Telkom.

Mr Landers could not see why Telkom should be treated differently when the other service providers were required to keep hard copies of ID documents.

The Chair felt stated that the issue was not up for debate. In terms of the law, frameworks were being put in place so that society would be made less vulnerable and criminals more aware of it.

Imam Solomon (ANC) felt that there was a need to look at the economic and social burdens placed on people in terms of the Bill.

Clause 33
Mr Labuschagne noted that the only changes were technical. The words "and probably be" had been inserted into subclause (3) to cover all situations.

Clause 34
Mr Labuschagne highlighted the two options that the Committee had to choose between. He was not sure which would be the most appropriate but believed them to be technical and not based on principle. The issue was flagged.

Clause 38
Mr Labuschagne explained that there were no specific changes to the provision but the Committee could look at each clause to see if they were satisfied. From there on to the end of the Bill there were no more changes.

Clause 43
The Chair remembered an issue concerning sentences being weak.

Mr Labuschagne explained that in clause 43(1)(b), no sentences had been inserted because he required a guideline from the Committee.

The Chair recommended that he insert "a period not exceeding 20 years" so that it could then be left to the judges discretion. Concerning fines, he asked that Mr Labuschagne determine an amount that would be taken seriously.

Mr Labuschagne asked if a distinction should be made between natural and juristic persons as far as fines are concerned.

The Chair did not think it necessary if it was stipulated that it could not exceed a specific amount, as the judge could then determine what was appropriate.

Clause 44
Mr Labuschagne inquired if a cell-phone that had been used to commit an offence must go back to the service provider.

The Chair suggested that the word "may" be used as the courts can then decide in terms of the usual laws of forfeiture. He noted that, regarding listed equipment, it was important to specify exactly what equipment was being referred to, even in terms of make and model.

Clause 28
The Chair noted that, in subclause (6) the additional post of CEO had been created and recommended that a clause be inserted to the effect that the person holding the post would be seconded from another department and that that department would continue to pay his/her salary and benefits although the person concerned would report back to the Department of Justice.
He recommended that subclause (5), pertaining to an internal computer audit system, provide that audits take place on a quarterly basis and to be the responsibility of the CEO. Furthermore, he suggested that the audits be sent to a judge who would then report on the audit in his annual report and additionally, notify the Minister of Justice of any abuses or problems within the system.

Clause 37
Mr Labuschagne, referring to the exemption of some of the smaller service providers, noted a suggestion from the Internet Service Providers Association that a pool of equipment be created that can then be used by the smaller internet service providers. The internet service providers were willing to fund the pool. He asked that the Committee give the matter some thought.

The Chair asked for clause 37(1) to spell out more clearly that it applied only to small internet service providers. He inquired as to which acts were prohibited in terms of clause 36(1).

Mr Labuschagne replied that the manufacture, purchase and selling of listed equipment was prohibited.

The Chair asked if it were possible to create a subclause (b) under clause 37(1), which requires those internet service providers who are exempt to contribute an amount determined by the Minister to a fund, by which such equipment may be bought and utilised.

Mr Labuschagne responded that it would thereafter be necessary to make someone, such as the CEO, responsible for the fund.

The Chair noted that it was important to allow exemption only in the exceptional circumstances when the size and turnover do not permit the internet service provider to comply with clause 37. He asked Mr Labuschagne to insert a second paragraph regarding the fund and equipment to be purchased from it, and to require that applications for exemptions must be tabled and approved in Parliament.

International Criminal Court Bill
Under Mr. Bassett's guidance, the Committee looked at an important change made to Clause 10 of the ICC Bill. The amendment allows the National Director of the NPA to appeal a magistrate's decision - not to issue an order sending a person to prison - to a High Court having jurisdiction. The amendment sets out the technical parameters for how this is to be done. The Committee unanimously accepted that amendment and also an amendment to Schedule 2 of the Bill that added a mistakenly missing phrase. Without opposition from anyone in the Committee, the Chair asked Mr. Bassett to draft a letter for the Chair to sign that would notify the Speaker to put the Bill on the order paper for the following day.

The Chair asked Mr. Labuschagne if he had further questions regarding alterations to the I&M Bill. Mr. Labuschagne asked whether Clause 12 refers to all places of detention or just prisons. Some discussion had previously taken place that the clause should include reform schools and other centres of detention. The Chair reminded Mr. Labuschagne that the purpose of this Clause is only to give current laws and regulations force, and not to create new laws. Therefore, since prisons already have a regulation to monitor prisoner communications, the Committee should only include prisons in this clause and resolve to investigate if it is necessary to monitor other detention facilities as well.

Satisfied that the Committee had finished the I&M Bill, Chair de Lange asked Mr. Labuschagne to polish up the Bill in preparation for the two of them to edit the Bill over the recess. The Committee will vote on the bill at the beginning of next session.

A committee member jokingly stated that he hoped a Court would find the I&M Bill constitutional. His joke referred to the Court problems snagging the recently passed Crossing the Floor Legislation. This reference offered Chair de Lange the opportunity to share his opinion on the previous day's decision by the Western Cape High Court to suspend the operation of that legislation and to submit the case to the Constitutional Court for immediate review.

The Chair stated that the Court acted in a capricious manner. In de Lange's opinion the first Court judgement had made an omelette, and that now the Western Cape High Court could not unscramble the egg. Although de Lange is glad that the Constitutional Court will rule on the Bill's constitutionality quickly, he worries that the Court did not do enough to look at the now broken egg. In other words, he worries about the livelihoods and lives of those who already began crossing at the signing of the bill.

The Court's decision caused several problems. One concern is whether this ruling binds just the Western Cape or whether it will affect the entire country. For example, in other provinces, has the 15 days already begun? If it has, what happens if the Constitutional Court does not rule on the Western Cape decision before the 15 days elapse? What will happen to the people who have crossed if the legislation is found unconstitutional? De Lange feels that the Western Cape decision should have addressed these issues.

Furthermore, de Lange feels that this Court decision causes a very bad precedent. In essence, the decision suspends Section 81 of the Constitution because it allows anyone who disagrees with a bill to have it suspended from operation even after it has been signed and published. The Court can only suspend a bill like this if a petitioner can show the bill will cause irreparable harm of a clear right. Dr. Delport (DP) believes that this standard has not been reached.

Due to the precedent that the Western Cape's ruling sets, the government will appeal the Courts decision, but they still want the Constitutional Court to go ahead and rule on the constitutionality of the Bills in early July.

In the next few days, Chair de Lange believes Parliament should do something to protect the people who have been exposed by the Court's decision. This will be very difficult because they will be required to seek protection for those who have crossed in all 284 local governments. Although the amount of respondents will be horrific, de Lange hopes to return everything to as it was on the day the legislation went into effect and then freeze all positions until the Constitutional Court Case has been settled.

De Lange argued that this bill is absolutely constitutional. The Constitution provides for the possibility of crossing, it does not alter the proportionality of elections themselves (just the proportionality of the period between elections), and it can be interpreted in a way that it does not conflict with the Constitution. Furthermore, it is more than just an average bill, this bill is an amendment to the Constitution made through constitutionally proscribed methods.

Before the meeting adjourned, the Chair thanked his clerk, who will be leaving the Committee at the end of the session, for her excellent service.

Meeting adjourned.

Appendix 1:
Proposed Amendments
Report of the Select Committee on Security and Constitutional Affairs (National Council of Provinces) on the Implementation of the Rome Statute of the International Criminal Court Bill [B42B-2001] (National Assembly - sec 75), dated 25 June 2002, as follows:

The Select Committee on Security and Constitutional Affairs, having considered the subject of the Implementation of the Rome Statute of the International Criminal Court Bill [B42B-2001] (National Assembly - sec 75), referred to it, reports the Bill with proposed amendments, as follows:

CLAUSE 2

1. On page 5, in line 7, after "comparable", to insert "relevant".

CLAUSE 10
1. On page 8, from line 28, to omit subsection (8) and to substitute:

(8) (a) No order for the surrender of any person may be executed -
(i) before the period allowed for an appeal as contemplated in this section has expired, unless that person has waived his or her right of appeal in writing; or
(ii) before such an appeal has been disposed of.
(b) Any person against whom an order has been issued under subsection (5) may, within seven days after the date of the order, appeal to a High Court having jurisdiction against a decision of the magistrate whether one or more of the requirements referred to in subsection (1)(a) to (c) have been complied with.
(c)
The National Director may, within seven days after the date of a decision of a magistrate not to issue an order committing a person to prison pending his or her surrender to the Court, as contemplated in subsection (5), appeal against such a decision to a High Court having jurisdiction.
(d) On appeal such High Court must make a decision whether the requirements referred to in subsection (1)(a) to (c), as appealed against, have been complied with and make an order which, in the opinion of the High Court in question, the magistrate should have made in the first place.
(e) If an appeal in terms of -
(i) paragraph (b) is upheld, the Registrar of the High Court concerned must notify the magistrate in question accordingly, who must, in turn, immediately cancel the order referred to in section 10(5), notify the Court thereof through the Central Authority and cause the person who lodged the appeal to be released from custody if he or she is in detention;
(ii) paragraph (c) is upheld, the Registrar of the High Court concerned must notify the magistrate in question accordingly, who must, in turn, after causing sufficient notice to be given to the person in question and to the National Director, inform the person in question of the order of the High Court.
(f) Notice to the person in question as contemplated in paragraph (e)(ii) must be a written notice to that person calling upon him or her to appear at a stated place and time on a stated date in order that the magistrate can inform the person of the order of the High Court, as contemplated in paragraph (e)(ii), whereupon the provisions of section 54(2) and 55(1) and (2) of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), apply with the necessary changes.
(g) The Rules Board for Courts of Law established by section 2 of the Rules Board for Courts of Law Act, 1985 (Act No. 107 of 1985), must, within six months after the date of commencement of this Act, make and implement rules of procedure which provide for the expeditious and urgent finalisation of an appeal contemplated in this section.
(h) Any rule made under paragraph (g) must, before publication thereof in the Gazette, as contemplated in section 6(4) of the Rules Board for Courts of Law Act, 1985, be approved by Parliament.

SCHEDULE 2

1. On page 23, in the third column of the item relating to "Act No. 16 of 1999", after "2002" to insert:

the matter must be dealt with in accordance with that Act

Appendix 2:
INTERCEPTION AND MONITORING BILL
[B 50-20011
25 June 2002
PROPOSED INSERTIONS AS PRESENTED BY THE DEPARTMENT OF COMMUNICATIONS
Chapter 1
Introductory Provisions
1. Definitions and interpretation
Page 8
monitoring device" means any electronic. mechanical or other instrument, device, equipment or apparatus which is used or can be used, whether by itself or in combination with any other instrument, device or equipment or apparatus , to listen to record and to retrieve archived communication related information from a telecommunication system.;
"this Act" includes regulations and directives.
"Minister" Means the cabinet minister responsible for the administration of this Act "Judge" Means a judge as appointed by the Minister of Justice.
Chapter 5
Interception Capability, Interception Centres and Costs
27.
(b) provide a connection whether fixed or mobile between the telecommunications service provider and the centres.
(c) bear the costs generated from all calls made between the service Provider and the centres.
4. (2)(a)(ii)
(cc) storing of communication-related information in terms of subsection I )(b):
(dd) Provision of the connection referred to in 1(c)
[3](5)
(c) Provide a connection whether fixed or mobile between the telecommunications service Provider and the centres and.

[Central monitoring] Interception centres

[8] 28. (1)The Minister in consultation with other relevant Ministers must at state exDense establish centres for the interception of communications in terms of this Act.
(2) The centres will be declared national key Doints in line with Act 102 of 1980 and will be called national communication centres.
(3) The centres will be the only service Providers of all interception, monitoring and any other relevant services to the law enforcement agencies.
(4) The centres will be responsible for the interception and monitoring on the
relevant networks.

(5) The centres will have an internal computer audit system to archive all requests for services rendered.
(6) The Minister must, subject to the laws governing the public service, appoint a person the office of Chief Executive Officer, who shall be the head of the centres.
(7) The Chief Executive Officer will be the accounting officer of the centres.
(8) The Chief Executive Officer will under the supervision of the Minister undertake t following:
(a) Equip , operate and maintain the centres.
(b) Co-ordinate and manage all activities of the centres.
(c) Perform any other function necessary for the effective functioning of the centres
(9) Staff to be employed at these centres shall be security competent and will be subjected to a security screening investigation by the National Intelligence Agency.

(2) (a) The centres shall be exempted from acquiring a licence and payment of any fees in terms of any section of the Telecommunications Act:
(b)The exemption in (i) shall only apply to the centres when performing functions in terms of this Act
***Deletion of the rest of section 28.

Chapter9
General Provisions
54. Regulations
The Minister may make regulations, regarding any matter that may or must be prescribed
in terms of this Act or any matter, which is necessary or expedient to prescribe for the proper implementation or administration of this Act.

 

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