Critical Infrastructure Protection Bill: Civilian Secretariat for Police briefing

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Police

25 October 2017
Chairperson: Mr F Beukman (ANC)
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Meeting Summary

The Civilian Secretariat for Police Service briefed the Committee on the Critical Infrastructure Protection Bill. The discussions were preliminary as the Bill was yet to be sent out for public comments.

The Bill sought to bring the legal framework for the protection of critical infrastructure in line with the constitutional imperatives and changing developments. It was aimed at ensuring that South Africa maintains a robust and sustainable approach to the protection of South Africa’s critical infrastructure in the interests of the state and all citizens. The Bill was providing a more transparent process of declaring critical infrastructures which involves a variety of departments, the private sector and community bodies. It also promotes a spirit of cooperation between various role players in order to provide for a multi-disciplinary approach to deal with critical infrastructure protection.

The purpose of the Bill was to: secure critical infrastructure against threats; promote cooperation and a culture of shared responsibility; enhance capacity to absorb and mitigate security risks; ensure that critical infrastructures comply with regulatory measures as well as to support integration and coordination of functions. The Bill takes into account that critical infrastructure may fall into various sectors such as water, energy, transport, communication among other, and seeks to harmonise this with sectoral legislation, with a view to protect the physical integrity of these infrastructures. On the reporting hierarchy, consisting of the National Commissioner (functional), the critical infrastructure council (advisory) and the Minister; the role of the Council was to advise on guidelines and standards; receive and consider applications, reports, assessments, make recommendations on applications; evaluate monitor review the implementation of policy, legislation, reports establish procedures; and to report to Minister. The South African Police Service (SAPS) National Commissioner is the responsible authority to administer Act and advise the Critical Infrastructure Council in consultation with key role players such as the State Security Agency, South African National Defence Force and other affected stakeholders in private sector.

Members well understood the meeting was just a briefing and the Committee process was still to unfold where a whole range of discussions based on public and party comments would ensue. The Chairperson asked about the Bill’s financial implications. Will the funds currently available to SAPS also cover the Secretariat towards the implementation of the Bill? The Democratic Alliance emphasised the need to insulate the critical infrastructure protection mandate from politicisation and political interference. The Council would have to be independent and be empowered as far possible.

The Chairperson appreciated the first round of engagements. He urged Members to study the Bill in detail in preparation for further discussions in the near future.

Meeting report

The Chairperson welcomed everyone and stated that the discussions were preliminary. The Bill was yet to be sent out for public comments.

Briefing by Civilian Secretariat for Police (CSP)

Mr Alvin Rapea, Secretary for Police, CSP, gave a background of the Critical Infrastructure Protection Bill. The Bill sought to bring the legal framework for the protection of critical infrastructure in line with the constitutional imperatives and changing developments. It was aimed at ensuring that South Africa maintains a robust and sustainable approach to the protection of the country’s critical infrastructure in the interests of the state and all citizens. The Bill intends to provide a more transparent process of declaring critical infrastructures which involves a variety of departments, the private sector and community bodies. It also promotes a spirit of cooperation between various role players in order to provide for a multi-disciplinary approach to deal with critical infrastructure protection.

Ms Dawn Bell, Chief Director: Legislation, CSP, indicated that the Bill was approved by Cabinet on 13 April 2016 for publication in the Government Gazette for public comment. This was done on 13 May 2016 for comments until 15 June 2016. All comments had been considered and the Bill had been amended to incorporate those that were considered useful. During August and September 2016, the Bill was presented at various DG Cluster meetings for further processing. In November 2016, the Bill was further deliberated on a clause by clause basis at the National Economic Development and Labour Council (NEDLAC). The NEDLAC report was finalised in July 2017 and had been forwarded to the Minister of Police, Minister of Labour and to the Portfolio Committee on Police. The Bill was approved by Cabinet in April 2017.

The purpose of the Bill was to: secure critical infrastructure against threats; promote cooperation and a culture of shared responsibility; enhance capacity to absorb and mitigate security risks; ensure that critical infrastructures comply with regulatory measures as well as to support integration and coordination of functions. The Bill takes into account that critical infrastructure may fall into various sectors such as water, energy, transport, communication among other, and seeks to harmonise this with sectoral legislation, with a view to protect the physical integrity of these infrastructures.

On the reporting hierarchy, consisting of the National Commissioner (functional), the critical infrastructure council (advisory) and the Minister; the role of the Council was to advise on guidelines and standards; receive and consider applications, reports, assessments, make recommendations on applications; evaluate monitor review the implementation of policy, legislation, reports establish procedures; and to report to Minister. The South African Police Service (SAPS) National Commissioner is the responsible authority to administer the Act and advise the Critical Infrastructure Council in consultation with key role players such as the State Security Agency, South African National Defence Force and other affected stakeholders in private sector.

The Bill makes provision for powers and duties of owners of critical infrastructure. Clause 24 now provided that a person in control of critical infrastructure may advance reasons why government should finance or co-finance the costs. Consequently, the Minister in consultation with Minister of Finance and other affected Ministers will make a determination.

On offences and Penalties, (clause 26), any person who unlawfully hinders, obstructs, trespasses, furnishes information, photos; damages or disrupts infrastructure would be liable to a maximum sentence of 30 years. An owner who fails to take steps after reasonable period lapsed to rectify non-compliance would be liable to a 10 year maximum sentence.

Ms Bell noted that the Bill improves upon previous drafts in several respects, especially with regards to the publication of Critical Infrastructure and the offences in line with the Promotion of Access to Information Act and the Promotion of Administrative Justice Act.

Discussions

The Chairperson asked about the Bill’s financial implications. Will the funds currently available to SAPS also cover the Secretariat towards the implementation of the Bill?

Mr Rapea replied that the Secretariat was in the process of finalising its structure and there were a number of areas which needed financial resources. It would approach National Treasury and was currently following the stipulated processes before submitting its proposals. For some of the structures historically funded by SAPS, the expectation was that this would remain the case.  There were already provisions for critical infrastructure in the SAPS budget and efforts were being made to ensure that further burdens were not imposed on the State.  . Also, discussions with the Minister in relation to budget allowances were ongoing.

Ms M Molebatsi (ANC) asked when the Committee would be furnished with written submissions from interested stakeholders.

The Chairperson replied that the Committee was yet to send out the Bill for comments and would only receive the submissions after a set deadline.

Mr Z Mbhele (DA) emphasised the need to insulate the critical infrastructural protection mandate from politicisation and political interference. The Council would have to be independent and be empowered as far possible. The declaration of a critical infrastructure is largely a criteria based process that could best be under the purview of technocrats. Having to give the Minister carte blanche in making such decisions would be problematic. The Council had to be given the power to make such decisions as opposed to only making recommendations to the Minister; which, no matter how reasonable they might be, could ultimately be ignored. How was the Council empowered to balance political considerations relating to such decisions? Also, there seemed to be some duplication of functions between the National Police Commissioner and the Council. Was there any rationale for that? Had a distinction been envisaged? Why were the owners of privately owned critical infrastructure being made automatically liable for the cost of implementing security measures rather than the state being liable for security? 

Ms D Kohler-Barnard (DA) wanted to know why NEDLAC was watering down the threats of cybercrime in its recommendation that some requisite structures should not be identified as critical infrastructure. She expressed caution about the maximum 30 year jail term for individuals who are found taking photographs of critical infrastructure. Penalties had to be looked into very carefully as the Committee could not threaten the media with 30 year jail terms. On the structure of the Bill in the current conjecture; the Minister had absolute power. She believed power should lie with the critical infrastructure committee which would be expected to make non-partisan decisions. The said committee would then be expected to appear before Parliament for accountability purposes.

Mr J Maake (ANC) commented on the security of critical infrastructure. Who would be mandated to secure critical infrastructure? Did the Bill address this aspect in particular? Could critical infrastructure security be outsourced?

Mr L Ramatlakane (ANC) well understood the meeting was just a briefing and the Committee process was still to unfold where a whole range of discussions based on public and party comments would ensue. However, the Committee would need to tackle the Offences and Penalties clause and categorise offences by degree for clarity sake.

Mr Rapea, in response, pointed out that decisions on critical infrastructure cut across strategic sectors and could not be left to a council or committee of technocrats without the executive authority, the Minister, applying his/her mind on the various matters. However, there was an extensive and rigorous process with which the Minister appoints the five Council members. From a policy perspective, the intent was to make the whole process and the Minister’s functions as transparent as possible to ensure there was no political interference.

The Secretariat was in a position to make detailed stakeholder comments available if they would assist the Committee in performing its duties. 

Mr JanVan De Walt, Legal Services, SAPS, replied that the Minister had not been given carte blanche to act without consulting. A very intricate consultation process had been built into the structures. Also, in the majority of instances, private owners do apply for security liability in order to reap the full benefits of critical infrastructure ownership. On the relationship between the Council and the National Commissioner, the latter would be responsible for administrative work. There was no duplication of functions between the two structures. As the National Commissioner has practical knowledge of typical standards, contingency plans and other, he/she would administer the Act in consultation with the Council. The Council considered whatever is brought before it by the Commissioner.  On Offences and Penalties, it was important to note that the clause referred to maximum sentences. A 30 year jail term was typically for the sabotage type of crimes. The Department in conjunction with State Law Advisors had attempted to define and categorise the offences clearly. On NEDLAC recommendations relating to crimes in the cyberspace, the challenge that NEDLAC experienced was that the Bill dealing with cybercrime and cyber-security was not yet an Act of Parliament during the discussions and therefore could not be referred to in the Critical Infrastructure Protection Bill. However, the Secretariat had respectfully differed with the NEDLAC position on same. Also, the State Law advisors were working on making sure there were no overlaps between the two Bills. On critical infrastructure security, security would be outsourced in the event that the critical infrastructure is owned by private persons.

The Chairperson appreciated the first round of engagements. He urged Members to study the Bill in detail in preparation for further discussions in the near future.

The meeting was adjourned.

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