IPID Amendment Bill deliberations & approval, Critical Infrastructure Protection Bill deliberations

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Police

04 July 2018
Chairperson: Mr F Beukman (ANC)
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Meeting Summary

The Committee continued with deliberations on the Critical Infrastructure Protection Bill by firstly focusing on clause 16 to 20. In these deliberations, Members questioned appeal process and lodging of disputes (clause 16), deviation from publication of the notice in the Government Gazette, disagreement on the determination of critical infrastructure, overriding of decisions by local or provincial government by the National Commissioner and infrastructure not meeting requirements to be declared critical (clause 18). Moving to clause 21, the Committee questioned the composition of the Critical Infrastructure Council and whether this composition favours government.

On clause 17, Members questioned if it was possible for the National Commissioner to depart from the direction of the Council on the declaration of critical infrastructure. Under clause 26, there was a question on reference to “critical infrastructure complex”.

The Committee would now afford Parliament and the legal drafting tram an opportunity to add and delete all the necessary amendments including typographical issues. The amendments would be merged with the main Bill. The appropriate Committee Report on the Bill would also be finalised. The Committee would deal with the finalisation of the Bill when it returned from recess in August.

The Committee then deliberated on the Independent Police Investigative Directorate (IPID) Amendment Bill. Discussion was had on clause 2, removal of the Executive Director from office. Amendments were proposed to the clause to ensure a trigger process for the removal proceedings preceded by a parliamentary inquiry. Another proposed amendment was to merge clause 2 6A (2) into clause 2 6A (1) (b) by deleting clause 2 6A (2) so that clause 2 6A (1) (b) read as follow: “the adoption by the National Assembly of a resolution calling for that person’s removal from office with a supporting vote of at least two thirds of its Members”. This proposal would answer the question as to who was supposed to be doing an investigation to determine misconduct, incapacity or incompetence of the Executive Director.

Members felt this proposal was a mere shifting of words. The sentiments could be reflected in the regulations. The Committee voted against the proposed amendments.

The Committee then adopted its Report on the IPID Amendment Bill with amendments. The DA, while not rejecting the Bill, reserved its right as it still needed to deliberate the Bill in caucus. The Bill would now be taken to the Parliamentary Legal Adviser for certification and ensure that the Bill was consistent with the Constitution. The Committee would also need to introduce the Bill to the Speaker of Parliament. It would then go to the Joint Tagging Mechanism (JTM). A second reading of the Bill would come at a later stage.

Meeting report

Chairperson’s opening remarks

The Chairperson indicated the main purpose of the meeting today was to process legislation and this was an important task of Parliament. The Committee would start with the Critical Infrastructure Protection Bill. Members would remember the Committee received briefing documents from the Department and legal drafting team on the opinion the Committee received from Counsel. Members would be allowed to engage on that matter if there were any questions that still needed to be clarified. The Committee would then vote on amendments to be made. There would be some time lapses as the Committee needed to ensure the Committee Secretary was afforded an opportunity to print out the latest version of the Bill.

The Committee would then later on deal with the Independent Police Investigative Directorate (IPID) Amendment Bill and the Parliamentary Legal Adviser would read out the updated version of the Bill. The Committee would process this specific Bill and then adopt the Report related to the Bill. The Committee could finish all proceedings today so as not to meet tomorrow.

The Chairperson afforded the legal drafting team an opportunity to read out the amendments that had been made from clause 16 up to clause 20 of the Critical Infrastructure Protection Bill.

Critical Infrastructure Protection Bill - Discussion on clause 16 - 20

The Chairperson wanted to know if there would be any implication for the person who happened, for example, to take a picture of the gate of the critical infrastructure dam that had been illegally obtained through illegal contract.

Brig Bert Van Der Walt, Head: Legal Support Service, South African Police Service (SAPS), responded that there would be better discussion around this issue when the Committee dealt with clause 26. The simple answer to the Chairperson’s question was no and that person would not be held criminally liable in terms of the new proposed clause 26.

Clause 16

Requirements for declaration of infrastructure as critical infrastructure

Ms D Kohler-Barnard (DA) questioned if there was an appeal process in place if the critical infrastructure fell under a provincial or local department. What was the process and procedure to be followed to lodge a dispute to the determination that had been made by the Minister or the National Commissioner?

Clause 18        

Application for declaration as critical infrastructure and critical infrastructure complex by National Commissioner    

Mr Z Mbhele (DA) asked if there was still a provision for the record of decision when there was a deviation from the publication of the notice in the Government Gazette.

Brig Van Der Walt responded that this requirement was still being maintained and it was contained in clause 18. The Minister must report all deviations in the report to Parliament so as to ensure that this was in fact on record.

Mr Mbhele struggled to identify the specific clause that made direct reference to the record of decision where there was a deviation from the publication of notice.

Brig Van Der Walt clarified that this was contained in clause 15 where the Minister must report to Parliament on the activities of the Critical Infrastructure Council.

Mr J Maake (ANC) asked about the process that was being followed when there was a disagreement on the determination made on the declaration of the critical infrastructure. It would be important to know if the Municipal Manager could refuse the declaration of the critical infrastructure.

Brig Van Der Walt explained that clause 18(1) (a) referred to infrastructure under control of the provincial or local government department and in those cases the National Commissioner must advise the relevant departments. This was not an instruction but merely advice because the National Commissioner believed the specific infrastructure may comply with requirements for declaration as critical infrastructure under clause 16(1). The typical example would be where the administration of the provincial legislature did not need to apply for declaration of critical infrastructure and the National Commissioner would be the one to advice the provincial legislature to apply for declaration. This was definitely not an instruction and therefore there were no appeal mechanisms. It must be highlighted that most of these departments usually comply with the advice to apply for declaration of infrastructure as critical infrastructure. The National Commissioner may then apply on behalf of those departments if they happened to be slow in the processing of the application as it was of national interest that those identified infrastructures were declared critical. For example, if the Secretary of Parliament took a long time to apply for the declaration of Parliament as critical infrastructure, the National Commissioner could then be in a position to process this application of behalf of the Secretary of Parliament. There was a consultation process.

Mr Maake wanted to know if the National Commissioner could override the decision by a local or provincial government department.

Brig Van Der Walt responded that the National Commissioner would certainly not be in a position to override the decision by local or provincial government not to apply for the declaration of infrastructure as critical infrastructure. The National Commissioner had those powers in the previous A version of the Bill but it was then decided the power of the National Commissioner should be limited based on inputs from various submissions and discussions of the Committee. There was proper procedure contained in the Inter-Governmental Relations Framework Act if the province or the Council made the decision not to declare the critical infrastructure and this was usually the case if the Minister strongly believed that the infrastructure qualified for the requirements to be declared as critical infrastructure. Most local and provincial governments would really grasp the opportunity to have the identified infrastructure declared as critical infrastructure because there was structured security approach attached to this.

Mr Maake questioned if the Critical Infrastructure Council could then override that decision by a local or provincial government department.

Brig Van Der Walt replied that the Council or provincial government would then have to make that decision to apply or not for the declaration of critical infrastructure. The Council could demand that the provincial or local government must apply for the declaration of critical infrastructure.

Ms Kohler-Barnard asked about the process to be followed for those infrastructures that did not meet the requirements to be declared as critical infrastructure under the Critical Infrastructure Protection Bill.

Brig Van Der Walt explained the transitional arrangement in clause 30 provided for the situation that had been identified by Ms Kohler-Barnard. Critical infrastructure declared under the National Key Points would be subjected to the same security but would be reviewed within 48 months to ensure they comply with requirements for declaration of infrastructure as critical infrastructure under clause 16(1) and (2). For example, if a Minister’s house was previously classified as a critical infrastructure, it would be declassified under the Critical Infrastructure Protection Bill as it would not comply with requirements under clause 16(1) and (2).

The Chairperson wanted to know about the process to be undertaken if, for example, there was a dam in Matatiale and the Municipal Manager in the area did not want to apply for the dam to be declare as critical infrastructure despite this being in the national interest.

Brig Van Der Walt elucidated that the dams all fell under the national Department of Water including municipal dams.

Mr Maake asked if it was perhaps possible to insert a new sub-clause under clause 18 to stipulate a process to be followed in case Municipal Managers failed to comply with the advice to apply for the declaration of infrastructure as critical infrastructure.

Brig Van Der Walt responded that all these decisions to be taken, whether by the Minister, National Commissioner or the Council, are administrative decisions and therefore reviewable. It would be impossible to legislate for failure of the official to do his/her duties.

Clause 21

Certificate of declaration as critical infrastructure

Mr Maake said that it was still unclear as to whether the legal drafting team would retain “must” or “may” in clause 21(1).

Brig Van Der Walt said the idea was that the Minister must consider recommendations of the Council and not necessarily the application only. The Minister must also apply his/her mind. Therefore, the Minister could declare or refuse to declare the critical infrastructure. There were other “safety nets” provided if the Minister incorrectly decided not to declare the infrastructure as critical infrastructure. The court could also review the decision taken by the Minster not to declare the infrastructure as critical infrastructure.

Ms Kohler-Barnard pointed out that in terms of composition, the Critical Infrastructure Council had seven government heads and five civil society members and most of the decisions would certainly go in favour of government. It was clear there would be limited chances that any government employee would go against what the Minister wanted even if he/she requested his/her house be declared as critical infrastructure.  

Brig Van Der Walt replied that all these decisions to be taken by various stakeholders, including the Council, could be reviewed in court - this is something that needed to be emphasised.

The Chairperson said the Committee would not vote on clause 16 to 20 as the Committee was not yet quorate.

Chapter 6: Regulations

Clause 30

Ms Kohler-Barnard asked about the legal definition of “scrutiny” under clause 30(5).  

Brig Van Der Walt answered that the word “scrutiny” denoted that the Committee was not a mere rubberstamp but also in a position to make a decision in relation to the regulation. The Committee was not just reading through the regulations but had powers to propose changes.

The Chairperson said the Committee could adopt its Report on the Critical Infrastructure Protection Bill when it was quorate. The Report would include amendments from clause 16 up until clause 20.

IPID Amendment Bill   

Mr Michael Andrew, Parliamentary Legal Adviser, read through the entire IPID Amendment Bill for Committee Members to make any necessary input.

Discussion

Ms R Lesoma (ANC) wanted to know if it was correct for the Parliamentary Legal Adviser to say that the Committee was of the opinion that the Bill did not need to be taken to the National Council of Provinces (NCOP).

Mr Andrew clarified that 6.2 under parliamentary procedure was not saying that the Bill should not go to the NCOP as the Bill needed to go to both Houses. 6.2 was speaking about the need for the Bill to be taken to the National House of Traditional Leaders and the Committee was of the opinion that the Bill did not need to be referred to that House.

The Chairperson requested the Committee’s Content Advisor go though the Bill clause-by-clause.

Clause 1

Amendment of section 6A into Act 1 of 2011

There was no amendment made in clause 1.

Clause 2          

IPID Executive Director removal from office

Mr Mbhele proposed amendments under clause 2 6A (1) (a) and (b). The proposal on clause 2 6A (1) (a) would include the following sentence after “National Assembly”: “at the conclusion of proceedings for the removal of that person, which must be preceded by a parliamentary inquiry according to the relevant rules of the National Assembly”. This was essentially proposing a trigger process for the removal proceedings which then concludes in the findings of the Committee and triggers the resolution so that there was process flow-chart clarity.

The second proposed amendment was to merge clause 2 6A (2) into clause 2 6A (1) (b) by deleting clause 2 6A (2) so that clause 2 6A (1) (b) read as follow: “the adoption by the National Assembly of a resolution calling for that person’s removal from office with a supporting vote of at least two thirds of its Members”.

Mr Maake said what Mr Mbhele did was simply shift the words. It was not necessary to shift the current outlook of the clauses.

Ms M Mmola (ANC) was in support of the proposal of Mr Maake.

Ms Kohler-Barnard commented that the proposal by Mr Mbhele answered the question as to who was supposed to be doing an investigation to determine misconduct, incapacity or incompetence of the Executive Director.

Mr Maake maintained that the proposed amendments by Mr Mbhele could be reflected in the regulations as processes were often reflected in regulations.

The Chairperson said that the Committee would need to vote on amendments proposed by Mr Mbhele.

Members voted against the proposed amendments by Mr Mbhele.

The Chairperson indicated that the Committee would now adopt its Report on the IPID Amendment Bill.

Adoption of Committee Report on IPID Amendment Bill

Members addressed some of the grammatical issues in the Report including spelling of some of the entities reflected in the Report.

Ms Mmola moved for the adoption of the Committee Report.

The motion was seconded by Mr Maake.

Mr Mbhele said the DA did not object to the Bill but the Committee should note that the DA reserved its right as it still needed to deliberate in caucus.

The Committee Report on the IPID Amendment Bill was adopted with amendments.

The Chairperson stated that the Committee would ensure that necessary steps would be taken on the Bill. The Bill would now be taken to the Parliamentary Legal Adviser for certification and ensure that the Bill was consistent with the Constitution. The Committee would also need to introduce the Bill to the Speaker of Parliament. It would then go to the Joint Tagging Mechanism (JTM). A second reading of the Bill would come at a later stage.

The Committee would now deal with all the “B-list” amendments that had been circulated to Members and there must still be an integration of these amendments into the original Bill. The Committee would do the final integration into the original Bill when coming back from the recess in August. This would afford everyone enough time to do quality control time and ensure that everything was in order. The Committee would now deal with the Bill on clause-by-clause basis.

Critical Infrastructure Protection Bill: clause-by-clause deliberations  

There were no discussions on clause 1 to 6.

Clause 7          

Functions of Critical Infrastructure Council

Mr Mbhele wanted to know if there was a specific reason why clause 7(2) (b) made reference to section 18(1) as opposed to just section 16(1). It was unclear how section 18(1) was related to the Council’s recommendations making process.  Section 18(10) was basically about the National Commissioner advising provincial and local heads to apply for the declaration of infrastructure as critical infrastructure on behalf of national departments.

Brig Van Der Walt said that Mr Mbhele was quite correct and this would be amended accordingly. The reference to section 18(1) should be deleted.

The Committee amended clause 7 to include the proposal by Mr Mbhele.

There were no discussions from clause 8 to 16.  

Clause 17        

Factors to be taken into consideration in the declaration of critical infrastructure

Mr Maake asked if it was possible for the National Commissioner to depart from the direction of the Council on the declaration of critical infrastructure.

Brig Van Der Walt replied that the National Commissioner must follow directions of the Council and did not have any discretion to depart from clause 18(5). The National Commissioner also did not have any discretion on information to be published or not published in the Government Gazette.

Members agreed with the explanation.

There were no discussions from clause 18 to 25.

Clause 26

Offences and penalties

Mr Mbhele noted that in clause 26(1) (b) the Bill made reference to “critical infrastructure complex” while “critical infrastructure” was used in other clauses. The Committee should be clear on whether there was a need to add “critical infrastructure complex” or whether “critical infrastructure” should be retained.

Brig Van Der Walt explained the definition of “critical infrastructure” already made specific reference to critical infrastructure complex. The legal drafting team would accept the proposal by Mr Mbhele to delete the word “complex” in clause 26(1) (b).

Members agreed with the amendment.

Mr Sisa Nkabane, State Law Advisor, asked if the omission of subsection 4 in clause 26(1) (i) was deliberate.

Brig Van Der Walt responded that this was a mistake and it would be corrected to read subject to subsection 3 and 4.

There were no discussions from clause 27 to 30.                             

The Chairperson indicated that the Committee had come to the end of the deliberations for today. The Committee would now afford Parliament and the legal drafting tram an opportunity to add and delete all the necessary amendments including typographical issues. The amendments would be merged with the main Bill. The appropriate Committee Report on the Bill would also be finalised. The Committee would deal with the finalisation of the Bill when it returned from recess in August.

The meeting was adjourned.   

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