IPID Amendment Draft Bill: briefing, Critical Infrastructure Protection Bill, Committee Reports

Meeting report

Critical Infrastructure Bill: Clause 18 and Chapter 7
The Chairperson said there are three issues outstanding in the Bill. The Committee had to deal with clause 18(8) and Chapter 7 and the Committee was awaiting an outside legal opinion on clause 26. As soon as the Committee received that legal opinion, clause 26 would be dealt with.

Mr J Maake (ANC) asked if the Committee could hear the opinion of the legal drafting team on clause 26.

The Chairperson replied that the matter was discussed in the previous meeting and perhaps Mr Maake was absent. There was an informal agreement in that meeting that the Committee should get an additional legal opinion on clause 26 but there would be ample time to discuss this when the Committee received it. 

Ms M Molebatsi (ANC) wanted to know the exact problem that AmaBhungane had with clause 26 dealing with the public interest. She said it was unclear.

Mr L Ramatlakane (ANC) answered that there was a consensus from the previous meeting that the Committee should get an external legal opinion. The Committee should proceed with clause 18(c) and Chapter 7 today and then wait for that legal opinion. 

Ms L Mabija (ANC) asked for the timeframe for the legal opinion so that the Committee does not wait forever.

The Chairperson replied that the Committee still planned to adopt the Bill in May 2018 as indicated in the year plan. Parliament had procurement procedures that must be followed for this legal opinion, which should be available within two weeks. 

Clause 18(8)(c)
Brig Bert van der Walt, SAPS Head: Legal Section, stated that clause 18(8) deals with the situation where the Council decides not to necessarily publish the name and particulars of an applicant (that applies for the declaration of a critical infrastructure) if the applicant shows good cause why the procedure in 18(3)(a) should not be followed. Clause 7(6) deals with the report of the Council and the drafting team was proposing the insertion of new paragraph (c) to 18(8) and add to Clause 7(6): "particulars pertaining to any decision of the Council to depart from the publication of the notice contemplated in section 18(8)(c).

Mr Z Mbhele (DA) said that he was happy with the proposed insertion in clause 18(8) as it means that there is an avenue of recourse for anybody including a parliamentary committee, member of the public or a research organisation seeking information on the particulars of applicant who applied for the declaration of a critical infrastructure via the Promotion of Access to Information Act (PAIA).

The Chairperson indicated that this would be included in the Portfolio Committee amendments.

Clause 5: Disqualification from appointment as member of Critical Infrastructure Council
Mr Ramatlakane reminded the Committee that the legal drafting team still needed to brief the Committee on the amendments in clause 5.

Brig van der Walt indicated that the proposal was that the word “or” in clause 5(e) is removed and the phrase “a position or” in (f) is removed.

The Chairperson thanked Mr Ramatlakane for reminding the Committee to deal with this clause.   

Clause 19: Application for declaration as critical infrastructure by National Commissioner
Dr Ivan Kinnes, Committee Content Advisor, noted that there was an insertion made to clause 19(5)(b) for the inclusion of “her”.

Chapter 7: General and Transitional Provisions
Clause 30: Transitional arrangements
Brig van der Walt promised to submit the new drafting of Chapter 7 to the Committee Secretary as soon as completed. The only amendments to be made in Chapter 7 are in clause 30(8) and (9). The Committee discussed that all critical infrastructure must be published in the Government Gazette but there is no provision for publication of national key points and clause 30(8) would rectify this. Clause 30(9) is to ensure that there is a practical procedure in which the Minister of State Security will deal with declarations of critical infrastructure until the Cybersecurity and Cybercrimes Bill is in operation. This is to ensure that there is an interim process in place.   

Dr Kinnes noted that this is the Critical Infrastructure Protection Bill and it is moving away from the notion of National Key Point. Clause 30(8) was still making reference to National Key Point.

Brig van der Walt clarified that there would be a period of 60 months where infrastructure would not have been declared formally as “critical infrastructure” but would remain as a “national key point” under the National Key Points Act. This simply means the national key points are deemed as critical infrastructure until they are so formally declared.

Mr Mbhele asked if the deletion of clause 18(3)(b)(iii) was due to the fact that compliance would not have been established yet because there had not yet been an assessment.

Brig van der Walt confirmed that this was indeed the case.

The Chairperson noted the amendments made thus far in the meeting

Brig van der Walt read out the amendments that had been made by the legal drafting team.

Mr Mbhele asked if there is precedent for the transitional arrangements of an Act to last essentially five years as reflected in clause 30(2). It was unclear why the legal drafting team was allowing the National Commissioner five whole years to conduct assessment for the suitability of each National Key Point or National Key Point complex to be declared as a critical infrastructure given the fact that the Council would have kicked into action within a quarter of the Act being put into effect. The five years seemed a bit generous. There is also another loophole in clause 30(5)(b) where any national key point that would not qualify to be critical infrastructure under clause 16 and 17 would still be deemed critical infrastructure even though it did not qualify as a critical infrastructure. What was the legal thinking behind clause 30(5)(b) given that the contraventions under the old Act are automatically nullified?

Mr Ramatlakane asked for the meaning of clause 30(6)(b) in simple terms.

Brig van der Walt replied that the person who is being charged would always get the benefit of the maximum sentences that are in place at the time of the commission of the offence.  

Adv Dawn Bell, Chief Director: Legislation for the Civilian Secretariat for Police (CSP), gave the example of the CSP having to bring the Criminal Law (Forensic Procedures) Amendment Act back to Parliament for amendment because its transitional arrangements were for two years and everyone had thought that two years would be sufficient. The legal drafting team did not want a repeat of this situation during the transitional period of the Critical Infrastructure Protection Bill.

The Chairperson said that this may be prudent especially since elections are around the corner.

Mr Ramatlakane wanted to know if in reality the transitional period could require a whole five years.

Adv Bell clarified that the Bill is clear that this was “within a period of 60 months” and there would be no problem if the transitional arrangements could be done within 24 months. The legal drafting team was avoiding the restriction of the transitional period.

Mr Mbhele indicated that he understood where the CSP was coming from especially looking at their experience with the DNA Act where the transitional period was not enough. However, the reality is that the two scenarios are qualitatively different as people underestimated the amount of work that needed to be done in the DNA Act whereas there is a Council in the Critical Infrastructure Bill that sits quarterly.

Mr Ramatlakane agreed that the situations are completely different.

The Chairperson asked the legal drafting team to reconsider the 60 months to avoid the creation of an “artificial period” where nothing happens until the last minute.

Mr Mbhele asked if the Committee was comfortable with supporting the suggestion of a 48 month transitional period.

The Chairperson reiterated that the legal drafting team should look into the matter.

Brig van der Walt mentioned that the Council would be dealing with 10 applications per meeting and it would take them literally five years to get through the 200 national key points. There is really no loophole in clause 30(5)(b) since the “national key point” would be deemed to be “critical infrastructure”.

Clause 31: Indemnity against loss or damage
Mr Mbhele asked if clause 31 meant that a civil lawsuit cannot be undertaken against the Minister or any person in the service of the State on furthering the objectives of this Act.

Brig van der Walt responded that the courts cannot accept that civil lawsuits cannot be instituted against the Minister or any person in the service of the State. This did not limit the powers of the courts to institute lawsuits against the Minister or anyone. This clause just denotes the fact that a person who follows the processes in terms of the Act would not be personally held liable for anything done in good faith. 

Mr Mbhele said that he was happy with the response provided but he was just not sure whether there is precedence for this kind of provision.

Clause 32: Short title and commencement
Members did not raise any issues on clause 32.

The Chairperson indicated that the Committee would communicate to everyone the time to resume with the Critical Infrastructure Bill. The Committee would resume with the Bill as soon as the legal opinion is available.

The Chairperson then indicated that the Committee would now deal with the Committee Report on IPID Amendment Bill. The National Assembly provided the Committee with permission to proceed with IPID Amendment Bill. The draft Bill was prepared by the Parliamentary Legal Service.

Briefing by the Parliamentary Legal Advisor on IPID Amendment Bill
Mr Michael Prince, Parliamentary Legal Advisor, explained that the Constitutional Court directed Parliament to correct the defects in the IPID Act within 24 months from the date of the order handed down on 6 September 2016. The purpose of the Amendment Bill is to provide for parliamentary oversight of the suspension, discipline or removal of the IPID Executive Director and related matters. The Bill also expressly provides that the laws and codes governing the public service do not apply to the removal of the Executive Director. Clause 1 amends section 6 of the Act by repealing of section 6(6) which deals with the removal of the Executive Director. Clause 2 inserts section 6A into the Act. This section sets out the process to be followed to remove the Executive Director. The process is now made subject to parliamentary scrutiny. Clause 3 is the short title of the Bill. There would be no financial implications for the Amendment Bill.

Mr Prince stated that the Committee would now need to discuss the draft Bill that has been produced by the parliamentary legal team. The Committee would also need to consult the Joint Tagging Mechanism (JTM) for the classification of the Bill. The Bill must then be published in the Government Gazette for public comment. The Committee would be requested to report to the National Assembly on the process that had been undertaken until the publication of the draft Bill and this is where the legal team is at currently.

Discussion
Ms D Kohler-Barnard (DA) said that the assumption from the court order is that the Minister’s proposal for the removal of the Executive Director would need to come before the Police Portfolio Committee first for debate. The Committee may well decide not to remove that person. However, the Amendment Bill allowed the Minister to immediately remove the person while the Committee is deliberating on the removal of the Executive Director.

Mr Mbhele said that these draft provisions for the removal of the IPID Executive Director mirrored those of the Directorate for Priority Crime Investigation (DPCI) Head. He said there must be a process to establish a prima facie case for pursuing proceedings to remove the Executive Director. This would allow the testing of evidence in order to proceed with the removal process. The Committee should insert a clear prior process on how to get to the activation of proceedings for the Executive Director removal in clause 3(a). He added that IPID had come up with other amendments to the IPID Act and perhaps the Committee should be provided with an opportunity to hear those IPID proposals during the public hearings.   

Mr Ramatlakane said that the Committee should note the inputs made by the Parliamentary Legal Advisor and Members and then incorporate these inputs when the Committee is dealing with other submissions.

Ms Kohler-Barnard commented that what the Committee was putting forward needed to be acceptable to the Constitutional Court. The first question that the Constitutional Court would ask is to how to arrive at the process for the removal of the Executive Director. The Constitutional Court is trying to provide protection for the invalid removal of the Executive Director in IPID. We need to think carefully about the process on how to get to activation of the proceedings for removal of the person.

Mr Prince responded that there is indeed an ambiguity in the SAPS Act and the legal team was aware of that and this was being addressed in clause 2 which seeks to insert clause 6(a). The process for the removal of the Executive Director starts with an investigation by the Committee and findings. There would indeed be a need to tighten up the issue of the suspension of the Executive Director and the legal team did not know whether this should be linked to the prima facie evidence of wrongdoing.

The Chairperson clarified that the Draft Bill was to kick-start the process. There had been many delays and therefore the Committee should move with speed to amend the Act. There would be further discussions during the public hearings. This is not the final product at all but it will kick-start the process and ensure that the JTM is able to deal with tagging it and allow for public comment.

Mr Mbhele said that the Constitutional Court had found that the some sections of the Public Service Act and one of the IPID regulations were inconsistent with the Constitution. The important question is whether this should be explicitly reflected in the Amendment Bill.

Mr Prince replied that his view was that this did not need to be explicitly stated in the Amendment Bill. The IPID Act still states that the appointment of the Executive Director is in terms of the Public Service Act. The legal drafting team can insert the statement that the removal of Executive Director would not be in terms of the Public Service Act.

The Committee adopted its Committee Report on the IPID Amendment Bill.

The Chairperson indicated that the Committee would wait for the JTM before proceeding with the IPID Amendment Bill. The Committee can allow the Committee Researcher to look into the issues that had been flagged by Members including the procedure that must be in place.

SAPS Budget Report
The Committee went through the report page-by-page and point out areas that needed to be corrected.

Ms M Molebatsi (ANC) commented about police killings both in the line of duty and off duty.

Dr Irvin Kinnes, Committee Content Advisor, indicated that the Committee also expressed concern about suicide involving police officers and this would be included in the report.

Members agreed with the suggestion.

In response to a query about the National Cybercrime Centre, Dr Kinnes said that it is going to be established in terms of the provisions of the Cybercrime policy that had been developed and will be run by the State Security Agency (SSA). It would look at cybercrime patterns and changes within the environment.

The Committee adopted the Report with amendments.

The Chairperson said that the Committee would not deal with the Private Security Industry Regulatory Authority (PSIRA) Budget Report because of time constraints.

IPID Budget Report
Ms D Kohler-Barnard (DA) suggested that the Committee should rather categorise crime according to the schedules instead of saying “serious crime”. The phrase “serious crime” could be open to different interpretations and therefore it would be useful to reflect the crime according to the schedules.

Dr Kinnes responded that this would be addressed to include the schedule of crime in terms of the Criminal Procedure Act.

Members agreed with the suggestion.

Ms Molebatsi suggested the inclusion of “Marikana tragedy” instead of “Marikana incident”.

The Committee adopted the Report with amendments.

The meeting was adjourned.