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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
26 August 2002
INTERCEPTION AND MONITORING BILL: DELIBERATIONS
Chairperson: Adv J H De Lange (ANC)
Regulation of Interception of Communications Bill
Chapters 19 -20 of the Criminal Procedure Act 51/77
ICASA submission on the Bill
The Committee looked at the definitions included under Chapter 2 and considered Clauses 13 and 15 of Chapter 3. The definition of "system controller" was changed to a more specific definition -giving authority to a person of an appropriately high rank - due to concerns raised by service providers. The definition of "customer" was made to include both contractual and non-contractual relationships. Regarding the Independent Complaints Directorate, the Committee agreed that while the ICD could apply for a direction, someone else would have to do the intercepting on their behalf. It was felt to be unnecessary to put in a separate system for the few cases that came before the ICD.
In the afternoon the discussions on Clauses 16 and 17 focused on the need to include "supplementary directions" in the Bill at all, and whether they could perhaps be included in a combination of directions or real-time directions. It was suggested that supplementary directions be dealt with in a separate clause, but it was eventually recommended that Clauses 15 to 17 be restructured to remove any express reference to supplementary directions in the Bill.
The discussion on Clause 20 dealt with whether persons installing the interception device need to apply for another entry warrant to remove it. It was suggested that the phrase "as soon as practicable" be inserted to allow them to remove it without applying for another entry warrant in situations where they cannot remove it immediately. The Committee also considered the legal implications should the person being monitored come upon the persons installing the interception device, whether any legal remedies are available to them and whether the persons installing the device should disclose their identities.
The Chair explained that the Committee had completed Chapter 2 the previous Friday. Previous debates would not be reopened. The Committee would begin by looking at definitions that flow from Chapter two.
Mr Labuschagne: drafter for the Department of Justice, pointed out that "archived communication-related direction" was the first term that had a definition.
The Chair suggested that the definition for "archived communication-related information" be read first as you could not read the definition for the one without the other. He inquired as to the reason for the having a 90-day period specification.
Mr Labuschagne replied that Service Providers (SP's) only store the information after 90 days - for the first 90 days the information was available immediately. He suggested that the definition for "communication" also be looked at.
The Chair asked why the definition had part (a) and part (b) subcomponents.
Mr Labuschagne replied that according to the intelligence agency it was possible for more than one signal to be routed to an interception centre. The signal needed to be routed so that it was possible to ascertain that it originated from a particular person.
Mr Labuschagne moved on to the definition of "authorised person".
The Chair asked if this referred to someone who assists.
Mr Labuschagne replied that it referred to someone who obtains the direction.
The Chair read through the definition for "business" and noted that it included internal systems of business, such as the different Departments.
Mr Labuschagne pointed out that a second option had been added to the definition of "system controller". As the definition stood, it could mean that the person at a switchboard could have permission to intercept. Service providers (SPs) had raised the concern that they preferred that authority to be given to someone with a higher rank - hence the insertion of the second option which confers the authority on a person duly authorized or a CEO or equivalent officer.
The Chair felt that a problem might arise with companies that had a different operating system but agreed that the second, more specific definition should be used.
Mr Labuschagne added that the definition had been copied from UK legislation but he was not aware of there being other UK legislation that may expand on the definition of "system controller".
Mr Labuschagne moved on to the definition of "communication".
The Chair read through the definition, which makes reference to "indirect" and "direct communication", and noted that one must then look at the definitions for those two terms. Direct communication was where one physically hears something, while indirect communication was focused on the transfer of information, for example, over a telephone. He asked if a signal would be included under "indirect communication".
Mr Labuschagne responded that it was specifically included under (v). The definition for "indirect communication" was exactly the same as the Australian definition and similar to the US definition so he did not think it incorrect.
The Chair observed that the basic definition centred on the transfer of information. Turning to ICASA, he felt that their submission did not help. It was necessary to show that ICASA fell under the definition and they had not shown that they do.
Mr Mzizi (IFP) queried the definition of "postal service".
Mr Labuschagne replied that it was necessary to include the definition for "postal service" in order to understand the definition for "postal service provider" and it was therefore not duplication.
The Chair added that "postal service" was a system, whereas "postal service provider" referred to who carried it out.
Mr Labschagne moved on to the definition of "customer", which had two options. The contract issue had been included as an option because oral applications had the same effect as a contract. He did not have a specific preference regarding the options.
The Chair responded that he could not think of a situation, in terms of the definition, where there would not be a contractual relationship. Even if the telephone were lent to a third person, there would still be a contractual relationship between the owner and SP. The Chair asked that both options be included in the definition.
The Chair moved on to the definition of "intercept", with which he was happy. He noted that "monitoring" had been included in the definition for "intercept" as a subspecies of interception.
The Chair decided to flag the definitions for "interception device" and "interception direction.
Moving on to the definitions for "judge" and "law enforcement officer" the Chair remarked that in terms of the definition, a judge must either be discharged from duty or retired. Mr Labuschagne was asked if these were two separate options and he replied that they were. The Chair felt that there should be an "or" between them if that was the case.
The Chair was concerned by sub (b) of the definition for "law enforcement officer", which refers to a "member, excluding a member of a visiting force, as defined in section 1 of the Defence Act".
Mr Labuschagne replied that he would check up on it, as he was not sure what the Defence Act says.
The Chair asked if this definition was where the Independent Complaints Directorate (ICD) wanted to be included.
Mr Labuschagne responded that it was under this definition as well as that for "applicant". He explained that in terms of Clause 34, the ICD could apply for an interception direction, but someone else would have to do the intercepting.
The Chair agreed that that was what was wanted. He did not want to create a whole new system for the few cases that the ICD dealt with and recommended that they be included under "applicant". He questioned the difference between a "law enforcement officer" and an "authorised person". Mr Labuschagne replied that there was no difference and the Chair suggested that the term "law enforcement officer" only be used.
Mr Labuschagne replied that only law enforcement officers who have been authorised by the applicant might execute a direction. There were exceptions, but in terms of directions, it was only authorised persons who could execute.
The Chair asked that a clause be included to allow for the ICD to enter into agreements with other monitoring agencies to provide such a service.
Mr Labuschagne responded that Clause 31(b) already provided for that.
Chapter 3: Applications for directions and entry warrants
The Committee moved on to Chapter 3, which the Chair felt referred mostly to technical information.
Clause 13: Application for direction
The Chair read through clause 13 and remarked that the Special Investigations Unit (SIU) was not included. He felt that they should be treated in the same way as the ICD.
Mr Labuschagne asked if the SIU investigated serious offences.
The Chair replied that they did not. The SIU investigated situations where the State was going to lose money, i.e. corruption. He felt that they fitted into a different category and asked Mr Labuschagne not to include them just yet, as he needed time to think about it.
The Chair asked Mr Labuschagne to remove the subclause on the military intelligence, which he felt should not be there. He had to make certain that the Directorate and the Prosecuting Authority were dealt with as one so that it did not result in two sets of lines to the Prosecuting Authority.
He commented that clause 13(5) was the most important clause, as it would be applied before the interception direction was issued.
Subclause (7) gives the judge two further powers - the authority to issue a direction without consulting the other party, and to ask for further information.
Clause 15: Application for archived communication-related direction
The Chair asked why the words "without the actual interception of an indirect communication" had been included.
Mr Labuschagne replied that it was because, for example, all the information relating to calls made by a person was wanted, without actually intercepting the calls.
The Chair felt that it was clear that the application was only referring to archived information and felt that the words were therefore superfluous. He commented that clause 3 contained the prohibition, and moved on to Clause 4.
Mr Labuschagne said, regarding Clause 4, that the National Prosecuting Authority (NPA) had indicated that if a test were going to be included, they would rather use s205 of the Criminal Procedure Act. The Committee had not been happy to leave it open, and a test had been included for a judge to apply before issuing an order.
The Chair commented that the test was stronger than the s205 test but not as strong as tests in the rest of the Bill.
Mr Labuschagne, referring to subclause (8) and the judge's duty to keep a record of applications, asked if a 5-year period should be added as discussed the previous Friday.
The Chair responded that it was not necessary as they were two different matters.
Mr Labuschagne recommended that some indication be given or else it could be interpreted to mean indefinitely.
The Chair felt that the clause should be left as is, pending a problem being raised.
He asked that Clause 15 be changed to Clause 17, and Clause 16 be changed to Clause 15.
Meeting adjourned for lunch.
Chapter 3 : Applications for, and Issuing of, Directions and Entry Warrants
Clause 16: Application for, and issuing of, supplementary direction or real-time communication-related direction; Clause 17: Combined Application for, and issuing of, interception direction, archived direction, archived communication-related direction and real-time communication-related direction
The Chair suggested that Clause 16(1)(b) is not needed, and asked whether the Bill contains a definition of the term "supplementary direction".
Mr Labuschagne, Legal Drafter from the Department of Justice and Constitutional Affairs, replied that it is contained in the definitions clause.
The Chair contended that Clause 16 seems, essentially, to refer to "real-time directions".
Mr Labuschagne responded that the term was included in the original Bill.
The Chair stated that it is called a "supplementary direction" because it is applied for when an order has already been given. A real-time direction can then also be applied for to supplement the initial interception direction. This would then be covered under Clause 60, and the definition of "supplementary direction" in Clause 1 is not correct and has to be redone.
Mr Labuschagne contended that it has the same effect as a real-time direction.
The Chair suggested that Mr Labuschagne was saying that it means a direction issued under Clause 16(4), and includes an oral direction issued under Clause 21(7). The provision should stipulate that it is referring to a situation where the judge has already given a direction and then on the same basis gives an order for a supplementary direction, so that the link between the two is created. This provision cannot be inserted in Clause 16(4) because that clause refers to a "supplementary direction', and Subclause 1 would then have to include "under Section 16(4) in the same case and on the grounds on which the order has already been given".
Mr Labuschagne replied that the problem here is that the directive is not granted on the same grounds, because it may be granted on some but not all the grounds listed in Clause 14. It is therefore not granted on the same grounds as the original interception direction. Mr Labuschagne stated that he would reconsider this clause.
The Chair asked Mr Labuschagne whether he is saying that the test here is the same as for the ordinary direction, except that Clauses 14(2)(b) and (c) may not apply here. Here a test of necessity has to be introduced. Why does Clause 17 not include "supplementary directives" as well?
Mr Labuschagne replied that Clause 17 refers to the initial application.
The Chair questioned whether the terms could not simply be changed in Clauses 16 and 17. Clause 16(1)(a) should be inserted in Clause 17, and there would thus be no need for Clause 16.
Mr Labuschagne disagreed, and stated that a supplementary direction cannot form part of a combined application because the supplementary direction refers to another direction which has already been issued.
The Chair suggested that the definition of the term "supplementary direction" could then also be deleted from the Bill. Clause 16(1)(a) and (b) could be made the new Clause 17(1)(c), and the last portion after Clause 17(1)(b) could be split into two provisions dealing first with "the simultaneous issuing of any combination of directions" and the second with real-time related directions. Thus supplementary directions are deleted from the Bill.
Mr Labuschagne cautioned against the deletion of supplementary directions, because the judge or service provider would then not be certain as to what has to be provided with regard to any supplementary directions.
The Chair maintained that supplementary directions are not needed, so that each clause deals with real-time directions and any combination of directions.
Mr M Mzizi (IFP) asked whether this meant that the numbering of the clauses would be altered as well because Clause 17(1)(b) still refers to Clauses 15(1), 16(2) and (3), which could confuse matters.
Mr Labuschagne responded that it would not confuse matters because all the references to the clauses would have to be amended via the consequential amendments. He remained dissatisfied with the Chair's contention that supplementary directions can be dealt with via a combination of directions, and suggested instead that supplementary directions be dealt with in a separate clause.
The Chair disagreed with Mr Labuschagne, and stated that the proposed changes to the wording of Clauses 15, 16 and 17 as outlined above, will resolve the matter. Also, the phrase "are required" after Clause 17(1)(b) would have to be amended so that it shares the same tense as the clause before it. Thus references to "supplementary direction" have to be removed from Clause 15, and the consequential amendments would have to be effected. Why has a reference to Clause 15(2)(b) been omitted from Clause 16(2)(a)?
Mr Labuschagne replied that it refers to a directive already issued under Clause 16(1)(a).
The Chair stated that Mr Labuschagne will have to move Clause 16(1)(a) to Clause 15(2), Clause 15(2)(d) would become Clause 15(2)(b), and subclauses (b) and (c) would have to be inserted in Clause 17. Also, the phrases "a supplementary direction or" and ",as the case may be" have to be removed from Clause 16(4). The phrase "A supplementary direction or" has to be removed from Clause 16(5), and the word "archived" occurring in the portion after Clause 16(5)(e) has to be replaced with "real-time". In Clause 16(6) the phrase "A supplementary direction or" has to be removed, and the proviso contained at the end of Clause 16(6)(d) has to be deleted.
Furthermore, the phrase "a supplementary direction and" has to be removed from Clause 16(7). Clause 15(6) provides "Section 14(3) and (7) applies", and should the same not be done in Clause 16(7) to include a reference to "Section 14(3)"? The heading of Clause 15 also has to be altered to include "or interception direction". The phrase "in a specific case" has to be deleted from Clause 16(1)(b), and Clause 16(1)(b)(1) has to be moved to Clause 17. The proviso currently contained at the end of Clause 16(6) must be inserted in Clause 17. All references to "a supplementary direction" should be replaced with the phrase "an interception direction as supplemented".
Clause 18: Amendment or extension of existing direction
The Chair asked whether the word "or" in Subclause 3 implies that the judge can do both parts (a) and (b), and it is thus the same as "and".
Mr Labuschagne answered in the affirmative.
The Chair suggested that Subclause 4 refers to the extension of the three month period, and should provide that the five grounds listed under Clause 14(2)(a) still apply here.
Mr Labuschagne replied that the grounds applicable to the interception direction should still be applicable here and, should any new grounds arise, then a new application would have to be lodged de novo.
The Chair stated that the word "concerned" in Subclause 4 should be replaced with "already issued.
Mr Mzizi requested clarity with regard to what precisely is to be amended in this clause.
The Chair stated that the original direction will be amended to include new items, and it is to this direction that Subclause 4 refers.
Mr Mzizi asked how one would keep track of these amendments and the three month period.
The Chair stated that if the information initially sought after is not acquired by the end of that three month period the law enforcement agency would then have to apply again, and then specify the information being sought and request an extension of the three month period. The Chair requested clarity regarding the inclusion of a reference to Clause 22 in Clause 16(6), and contended that Subclause 6 does not have to include a reference to Clause 22, because Clause 22 is comprehensive enough.
Mr Labuschagne agreed.
Clause 19: Application for, and issuing of, decryption direction
The Chair read through the definition of "decryption", and instructed Mr Labuschagne to delete "supplementary direction," from the Bill's definition of "direction".
Mr Labuschagne added that a supplementary direction is a once-off order and cannot be extended nor amended and, if it is insufficient, a new direction has to be applied for.
The Chair read through the definition of "decryption assistance" in Clause 1, and stated that this refers to facilitating access to the actual content of the encrypted communication or information, or making it readable. The Chair requested clarity on Clause 19(2)(b).
Mr Labuschagne replied that the decryption technicians would have knowledge of this.
The Chair asked how it would be possible for the person holding the encrypted information to know the decryption key.
Mr Labuschagne responded that he has been informed by the NIA that this is indeed possible.
The Chair asked whether other jurisdictions have included the test for a decryption direction contained in Subclause 4.
Mr Labuschagne replied that he based Subclause 4 on the United Kingdom model.
The Chair asked whether it is only the United Kingdom that employs such a test.
Mr Labuschagne responded that the United Kingdom model is the only example he could find that deals with the encryption and decryption of information.
The Chair contended that it seems like a very onerous test, because if the information is provided in an intelligible form the direction would be defeated. Yet he had no problems with this provision. It is not clear why Subclause 4(b)(ii) refers only to an "adverse effect" because it does not seem that it would have this effect on the business, as they only hold the decryption key.
Mr Labuschagne replied that the only example he could think of would be the case where, should the decryption key be disclosed, it could bring other additional information to light.
The Chair stated that the provision should remain as it currently stands, and suggested that a reference to "Section 14(3)" also be included in Subclause 6.
Mr Labuschagne replied that "Section 14(3)" does not apply here, because Clause 14(1) already makes it clear who can apply.
The Chair agreed, and stated that the same person applies under Subclause 6.
Adv M Masutha (ANC) asked why the service provider has not been included in Subclause 2(a)(i) to (iii), because Telkom stated that they in many instances only provide the "pipe" through which the decrypted information passes. They contend that they are not themselves the decryption key holder, and they cannot thus access the content of that information. An example would be the case of a bank which uses Telkom as a conduit for moving the transaction, and Telkom would provide the infrastructure but would not be able to access the content. Perhaps this needs to be included in the provision?
The Chair stated that this explanation itself suggests that the service provider does not have to be included, because it is merely a conduit.
Mr Labuschagne agreed that service providers do not have to be included here because, as pointed out by Adv Masutha, there is no reason to include them here if they can serve no purpose.
The Chair stated that the service providers can be included in the application, but when dealing with the decryption the decryption key holder is needed.
Adv Masutha stated that the equipment to be installed for the decryption needs physical modifications to the infrastructure of the service provider, such as telephone lines, and Telkom alone would have control over the installation from the particular residence to the interception centre.
The Chair suggested that Adv Masutha is confusing interception and decryption. At this stage the communications has already been intercepted but it cannot be read, and the decryption key holder would then have to provide the decryption key. The Chair was pleased that Adv Masutha raised this matter because Subclause 5(e) does not mention the decryption key holder, as is done in Subclause 2(a)(iii).
Mr Labuschagne replied that Subclause 5(b) refers to Subclause 2(a)(ii) and (iii).
The Chair agreed.
Clause 20: Application for, and issuing of, entry warrant
The Chair stated that Subclause 20(1) provides that one can therefore apply for an interception direction, an entry warrant and a decryption order simultaneously. Clarity is requested regarding the remainder of the clause.
Mr Labuschagne replied that it deals with the direct and indirect interception of communications.
The Chair stated that this clause then deals with "a bug" and "bugging", and suggested that the five tests listed in Clause 14(2)(a) would still have to apply here.
Mr Labuschagne stated that the problem here is Subclause 8 because if one wants to intercept communications until 12am, the moment the direction lapses one would not be able to gain entry to the premises. Would one then again have to apply to the judge for another order?
The Chair suggested that the phrase "without applying for a future entry warrant" should be inserted after "must, as soon as practicable" in Subclause 8. This would then make it clear that the law enforcement agency would be authorised to remove the interception device after the order lapses.
Adv Masutha contended that this provision deals with two different concepts: the first deals with the authority to enter the premises via the entry warrant, and the second with the authority to perform that function for which the entry warrant was granted. He was not sure whether the extension contemplated is provided for here under Subclause 8, because it really deals with the second concept. If the purpose of the direction of interception is specified in the authorisation, once it lapses it can only be extended via an express extension, which Subclause 8 does not provide.
The Chair stated that it would not be extended, for the very reasons outlined by Adv Masutha himself.
Adv Masutha stated that if, as Mr Labuschagne suggested, the direction only allows interception until 12 am the law enforcement agency would not need to go back to the judge to apply for a new order. This is because Subclause 8 provides for the removal of the interception device "as soon as practicable". Perhaps the provision should allow for a reasonable extension.
The Chair disagreed with the proposal for a reasonable extension, and stated that the law enforcement agency would just have to make sure under what legal power it is acting when it fetches the interception device. It does have the legal power to enter, but the position with regard to the removal is not certain, and the Chair suggested that the provision be amended so that they may legally return to the premises with the sole purpose of removing the interception device.
Adv Masutha contended that the provision needs further clarity, for instance where the removal of the equipment does not reasonably occur within a short period of time because it may too risky to do so. In this case it might only be practical to remove it discreetly, perhaps even days or long afterwards.
The Chair stated that this concern is included and accommodated by the phrase "as soon as practicable" in Subclause 8.
Mr Labuschagne asked how the removal of the interception device would be regulated. Would they have to go back to the judge and apply for an entry warrant for removal, or would they rely on "as soon as practicable"?
The Chair stated that that phrase must be retained, and the phrase "without applying for an entry warrant" has to be inserted after the word "remove" in Subclause 8.
Mr Mzizi suggested that a problem is created here when one applies for an entry warrant for restricted areas. Clause 20(2) does refer to Clause 21(1), but it must also state the reasons for entry. How would the entry warrant be different from the original order, because it seems to have the same wording. Furthermore, what would happen should the person being monitored come upon those installing the interception device? Would they then have to disclose that they are law enforcement officials and display the entry warrant?
The Chair replied that he is not sure as to the legal position here, but assured Mr Mzizi that those installing the device slip in and out of the premises, and do so very discreetly. Should they be interrupted, they would probably have to disclose that they are law enforcement officials and would also have to display the entry warrant.
Mr L Landers (ANC) referred to the regulation of the removal of the interception device, and suggested that Clause 22 be amended to require the law enforcement agency to stipulate in the report to be submitted to the judge the time and date on which the interception device was removed.
The Chair stated that this could be inserted in Clause 22(b)(i), and the phrase "when or whether the interception device has been removed" could be included at the end of the provision.
Adv Masutha suggested that the concern raised by Mr Mzizi is an interesting one, and the legal implications of interrupting those installing the interception device are uncertain. Would a person who takes action in this situation have any legal remedy?
The Chair stated that such a person would need a good defense and the recent Walters judgment, dealing with the use of lethal force under Section 49 of the CPA, provides the steps to be taken and requirements that have to be satisfied in this regard. It would thus appear that those officials would have to disclose their identity and display the entry warrant. The Chair informed Adv Masutha that it would not be possible to create defenses here.
Adv Masutha suggested that perhaps it could provide something similar to "in the event that those installing the interception device are interrupted, they would be required to produce a warrant".
The Chair stated that the usual legal principles would apply here, and the Bill cannot create any defenses. As long as those installing the device act bona fide, they will be fine. Hopefully they will not be interrupted often, and Clause 20 will not be used regularly. Mr Labuschagne is requested to check whether those provisions of the CPA dealing with the production of a warrant in such circumstances would have to be included here.
Mr Labuschagne urged Members to bear in mind that there is a big difference between entering premises under the Bill and the CPA, because the CPA does contain several requirements and steps to be followed which do not apply here. Should those installing the interception device be interrupted they probably would not disclose their true identities and authorisation, because it would jeopardise the operation. They would probably offer some other reason.
Mr Mzizi asked whether the law enforcement agencies could then avoid this situation by using Telkom as an agent.
The Chair replied that this would not be possible, because Telkom would then be acting illegally.
Clause 21: Oral application for, and issuing of, direction, entry warrant, oral direction or oral entry warrant
The Chair requested clarity on the "ground" referred to in Subclause 5(a)(ii), because Clause 14(5)(a) alone does not apply to oral applications. Clauses 14(5) and 19(4) should be referred to here in their entirety, because oral directions are issued on the same grounds as usual directions. Thus the reference to the "(a)" portions of Clauses 14(5) and 19(4) should be deleted from Subclause 5(a)(ii).
Mr Labuschagne responded that the "(a)" portions cannot be removed, because these grounds are specifically mentioned in Clause 14(5)(a).
The Chair agreed, and stated that the whole clause would then be removed. Is the a test for the issuing of an entry warrant contained in Clause 20(4)?
Mr Labuschagne answered in the affirmative.
The Chair stated that Clause 20(4) would then also have to be included here, and the phrase 'the definition of "entry warrant"' would then have to be replaced by "Section 20(4)" in Clause 20(4)(a). The phrase "for a purpose referred to in the definition of "entry warrant"' in Clause 21(5)(a)(ii) should be replaced with "for the grounds of Section 20(4)".
Mr Mzizi asked whether this oral application has to be lodged within a specific time.
The Chair replied that it has to lodged within forty-eight hours.
Mr Mzizi requested clarity on the position should unforeseen circumstances occur which would result in the applicant being unable to comply with the forty-eight hour limit.
The Chair stated that the direction would lapse and would become illegal. Mr Labuschagne is requested to fix up Subclause 2, and the references to Clauses 14(5)(b) and (c) and 19(4)(b) in Subclause 6 must be moved to Subclause 2. These references can then be deleted from Subclause 6. Subclause 7(b) can also be done orally and means that written directions can be granted as well, because it refers to Clause 14(6)(a). It seems that this provision is repeated in Subclause 8(a), and Mr Labuschagne is requested to explain this. Surely a double test for oral orders is not necessary, and Subclauses 8(a)(i) and (ii) should thus be deleted from the Bill, so that only parts (iii) and (iv) remain.
Mr Labuschagne replied that this would be reconsidered, because there was a definite reason for including Subclause 8(a).
The Chair stated that the phrase "in the oral application concerned, that" should be deleted from Subclause 8(a), and parts (iii) and (iv) have to be deleted. In Subclause 8(b) the word "applicant" has to be replaced with "judge" and "a written application" has to be substituted with the phrase "must, as soon as is practicable, give a written direction or order within".
Mr Labuschagne referred the Chair to Subclause 10.
The Chair stated that the brackets at the end of Subclause 10(a) have to be removed. Yet Subclause 8(b) seems different, because it implies that the judge could refuse to issue the order once the written application has been received. Thus the use of the word "must" in that clause has to be reconsidered.
Mr Landers suggested that it be replaced with "may".
The Chair stated that Subclause 10(a) provides that the judge would have to issue a written order of the oral order granted. This provision has to be redone as the form which the order will take has to be clarified and made compliant with Subclause 8(a)(iii) and (iv). The Chair contended that he was not sure whether Subclause 9 would apply and it would therefore have to be redone, because it seems that the oral order could be obtained via Subclause 10. The oral order would then have to be issued in written form as soon as practicable, and "within 24 hours" in Subclause 10(b) should then be replaced with "as soon as practicable". This would then create the link, and judge could then either confirm, change or dismiss the order. Thus Subclauses 8 to 10 have to be redone so that it is not linked to the oral application, but only to the form to which it will take.
Clause 22: Reports of progress
The Chair stated that amendments have already been proposed to this clause in the earlier portion of the discussion, and it was proposed that the report to be submitted under part (b) include the date and time on which the interception device was removed.
Mr Landers requested clarity as to the position should the interception device not be removed.
The Chair replied if the law enforcement agency continues to "tap" the person's telephone line, it would be highly illegal and the information so obtained would not be admissible in court.
Mr Landers asked if this would then nullify the entire direction.
The Chair replied that it should not, in theory. It would only nullify the information obtained from the time the direction ends.
Clause 23: Cancellation of direction, entry warrant, oral direction or oral entry warrant
The Chair asked why Subclause 5 includes a reference to "Section 21(4)".
Mr Labuschagne replied that Subclause 5 refers to "Subsection 2" and provides that any information obtained via a direction that has been incorrectly issued would be void.
The Chair stated that Subclause 1 refers to all directions and entry warrants, and Clause 21(7) can also be used to cancel a direction.
There were no further questions or comments and the meeting was adjourned.
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