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SAFETY & SECURITY PORTFOLIO COMMITTEE MEETING WITH JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
21 August 2003
DISCUSSION OF REFINED ANTI-TERRORISM BILL
Chairperson: Mr M George (ANC)
Document referred to:
Draft counter-terrorism bill, taking into account the public hearings and subsequent discussion
The Committees agreed to finalise the title and Preamble of the Bill at the end of their discussions. Members questioned duplication in some definitions and the extension of all the enhanced police powers to members of the SANDF. The Committees agreed to work with option 4 on the definition of 'terrorist act' and to ask Adv De Lange to look their definition.
Members questioned the structure of Chapter 2 (Offences and Penalties). While all necessary concepts were covered, some rearrangement of offences would be necessary to reflect their seriousness and relation to terrorist acts. Members discussed whether the term 'unlawfully' should appear in the clauses on offences. Adv De Lange was concerned that this would create problems of interpretation since it was not usual practice. The State Law Advisers would be asked for an opinion on this.
Title of the Bill
The Chair stated that it was clear from previous meetings that there would be discussion around the title. The drafters had taken the liberty of titling the document but this should not be taken as the new official position. The Committees would deal properly with the title and the Preamble at the end of the discussion, though comments on these topics were welcome.
Adv J de Lange (ANC) noted that he had not attended the final day and a half of the hearings on the Anti-Terrorism Bill. The Chairs of the Committees concerned with the Bill had not been involved in the drafting of the refined Bill. Thus, the SAPS officials were needed to explain the draft. There were three positions on the title: the Anti-Terrorism Bill, the Counter-Terrorism Bill and a third position that held that the Bill also dealt with the protection of the constitutional order and that the title should reflect this. He agreed with the Chair that the title should be resolved at the end of the discussion on the refined Bill.
Ms S Camerer (DA) stated that she was concerned about the possible implications of 'counter'. It put her in mind of 'counter-trade' - a form of trade bartering. It made the Bill sound as if terror would be met with terror.
Mr E Ferreira (IFP) stated that the title was not a 'make or break' issue for the IFP, but the main point of the Bill is terrorism and the Committee should not shy away from the term.
The Chair stated that the Chair of the Foreign Affairs Committee had suggested 'protection of the Constitution'. Anti-terrorism and Counter-terrorism seemed the most prominent possible titles.
Ms Camerer asked what the arguments were against 'Anti-terrorism'.
Adv P Jacobs (Head: Legal Services, SAPS) replied that the objection was that the US legislation passed in 1996 was titled the Anti-terrorism and Effective Death Penalty Act. Many other countries used 'anti-terrorism' in the titles of their laws because it came from the names of the conventions. Another option would be to take 'prevention and combating terrorism' from the AU (African Union) convention.
The Chair agreed that there had been concern about the US use of the title. Parties could consult on it. He hoped the Bill would have a title after the weekend.
Adv P Swart (DA) noted that there had been questions raised about mentioning unratified instruments in the preamble.
Adv De Lange stated that the preamble needed fine-tuning - it contained repetition and did not flow logically. There were also some technical issues. The Committees would have to decide on referring to 'terrorism' since that did not appear in the Bill. He was aware that the unratified conventions had been raised as an issue, but South Africa intended to ratify them and wanted to include the crimes in the conventions in the Bill - the link was needed to explain the appearance of the crimes. The drafters should point out when offences came from unratified conventions.
The Chair stated that he had raised the ratification of the conventions with the Chairs of Transport and of Minerals and Energy. He questioned whether the Bill should start with the phrase 'to give effect to international instruments'. This gives the impression that the Bill was just to give effect to the instruments and that South Africa was under US influence.
Mr D Gibson (DA) responded that he hoped the Committees would not spend the next six weeks worrying about people that called the Bill American-inspired. This was just a smear and the Committees should ignore it.
The Chair responded that the fact that the Committees were proceeding with the Bill showed that they were ignoring the smear.
Chapter 1 (Definitions)
Explosive or other lethal device & weapon of mass destruction
Adv De Lange expressed concern about duplication in the definitions of 'explosive or other lethal device' and 'weapon of mass destruction'. There was too much repetition in the definitions. He also wondered whether 'explosive or lethal device' should be separated into two definitions. At times in the offences, it appeared the reference was to only one of these. Even if it was both, an 'or' could be inserted.
Adv Jacobs responded that 'explosive or other lethal device' came from the terrorist bombing convention. There was an overlap with the definition of weapon of mass destruction - this offence did not come from that convention. The Law Commission had recommended that an offence related to weapons of mass destruction be included based on their research. The overlap in the definitions was not problematic for the structure of the Bill and the penalties for the offences are the same. It would be difficult to include these offences without both definitions. The motivation for the inclusions was in the Commission's report.
An SAPS official stated that they had looked at the UK legislation, which referred to weapons of mass destruction, and UN conventions on weapons of mass destruction. He agreed that there appeared to be an overlap. The definition was as in the Non-Proliferation of Weapons of Mass Destruction Act (Act 87 of 1993). To have the offences, these definitions were needed.
Mr J Jeffery (ANC) asked if there were any cross-references between the definition of explosive device and the Explosives Act.
Adv Jacobs replied that they were not the same - the definition relates to a convention offence. The wording of the definition is from the convention. Further, the Anti-terrorism Bill gives extended jurisdiction while the Explosives Act's jurisdiction was limited to South Africa.
Adv De Lange stated that he would have to look through the Bill and check the consequences of the definitions. The issue should be examined, especially if the 'weapon of mass destruction' definition and offences were not included because of a convention. There appeared to be two definitions that had different wordings but meant the same thing. 'Explosive or other lethal device' could have a more generic use.
Mr Jeffery asked that a copy of the definitions in the Explosives Act and the conventions be made available to members.
Adv Jacobs responded that these would be made available.
[See also Adv De Lange's comment at the end of the discussion on the definition of 'nuclear material']
Mr Gibson asked about the definition of fixed platform. Would it be unwise to amend it since it was taken from a protocol? He wondered if the definition would apply if the platform were temporarily attached to the seabed - for example one that was in one place for a year and then moved to another site.
Adv Jacobs replied that different conventions applied to these cases. The maritime convention related to ships and other non-permanently attached maritime objects. The Bill needed to follow the definition in the convention to maintain the link and give effect to the convention.
Adv De Lange raised the definition of 'convention offence. It must clearly be linked to terrorist activities. The term 'counter-terrorism' before 'conventions' should be removed. The definition needed tweaking.
Mr Gibson questioned the word 'created' in the definition of convention offence. This implied that South Africa saw nothing wrong with hijacking and the offence was just there because of the convention.
Adv De Lange stated that the definition of enterprise is very important. The Bill does not refer to organisations - terrorists do not often work as organisations. 'Enterprise' is a more generic term, better capturing the way terrorists work, and appears in the conventions. It should be linked to a legal concept, such as 'common purpose' or 'conspiracy'. When people set up structures that are groups, you need a legal concept to hold them together. The current draft only has 'associated in fact'.
Adv Jacobs responded that the definition resulted from a procedure in the Bill that refers to the Prevention of Organised Crime Act. The procedure replaced the investigative hearings of the original Bill. The definition is the same as in the Prevention of Organised Crime Act. He noted that the possibility of a definition of a terrorist organisation had been raised. A policy decision would have to be taken on whether to include a method of listing or proscribing groups.
Adv De Lange responded that the Committees would have to address that question later.
Adv De Lange noted that in the offences section, the word 'entity' was used and he asked whether 'enterprise' and 'entity' could be used interchangeably. His understanding of an entity was covered by the definition of enterprise.
Adv Jacobs replied that part of the problem was consequential amendment. Clause 27 modelled on the provision in the Prevention of Organised Crime Act Section 72, used the term 'enterprise'. Clause 30 referred to 'entities', using the UN language. The concepts would have to be integrated and definitions inserted as necessary, including a definition of entity.
The Chair again asked if the terms could be used interchangeably.
Adv Jacobs replied that enterprise is broader than entity - the latter term was in the definition of the former. One could eliminate one of the concepts for clarity. The terms were both there because of insertions.
Mr Gibson stated that an enterprise is an undertaking, whilst an entity is a thing. He questioned the inclusion of the phrase 'any individual' in the definition of enterprise - this was just wrong.
Adv Swart noted that the issue of a legal term to bind people together would come into this definition.
Adv De Lange stated that things were as Adv Jacobs had said - the two concepts came from different sources. 'Enterprise' came from the Prevention of Organised Crime Act; 'entity' from the way the international community used the term. One had to bear in mind that the Bill used the Prevention of Organised Crime Act where there was clearly a concept of enterprise. The Bill refers to 'legal entity', which is more specific. He suggested defining entity so enterprise was part of it for the fit with the Prevention of Organised Crime Act. He did not want to lose the idea that it had to be an undertaking. The terms would have to be harmonised.
The Chair stated that 'enterprise', 'entity' and 'terrorist activity' should all be considered.
Internationally protected person
Mr Gibson pointed out a typographical error in the definition of internationally protected person. In (a), 'his' should be replaced with 'his or her' in line with the rest of (a). Also in (a), there is a reference to 'foreign State'. Whilst the Queen of Denmark, for example, would be in a foreign State from her perspective when she visited South Africa, would she be in one from South Africa's perspective? It would be unfortunate if this was interpreted to mean that the related provisions did not apply in South Africa.
Adv De Lange agreed with Mr Gibson. He suggested that 'foreign State' be replaced with 'in the Republic'.
Mr Gibson pointed out that in part (b) of the definition of internationally protected person, 'freedom of dignity' should be 'freedom or dignity'.
Adv De Lange asked why (c) was included in the definition of internationally protected person since this did not appear in the convention - why did the definition elaborate on the convention? He asked if there were definitions of 'international organisation' or 'intergovernmental organisation'. Did the convention define these terms? As the definition stood, the terms could apply very widely.
Adv Jacobs replied that the Department for Foreign Affairs had suggested that (c) be included to clarify the definition.
Adv De Lange replied that if this was used as a tool to prove a person's guilt, it should be elsewhere in the Bill. If the Department for Foreign Affairs wanted it included, it should remain, but should appear elsewhere.
A Department official stated that there were definitions of international organisations in the legislation on corruption - these could be included here.
Adv Jacobs stated that the terms were not defined in the convention.
Adv De Lange stated that the definitions from the other legislation should be included in the Bill.
Ms Camerer asked for an explanation of the definition of nuclear material.
Mr Gibson asked if material containing a concentration of plutonium-238 greater than 80% was nuclear and if the 'one or more of the foregoing' provision at the end would include materials that had a concentration of plutonium-238 greater than 80%.
Adv Jacobs replied that the definition was taken from the nuclear materials convention. The isotopes in the definition were given to distinguish nuclear materials for use in weapons from those for use in other areas, such as for medical purposes.
The Chair stated that members would have to explain the Bill to people in their constituencies. He wondered how they could explain this definition.
Adv Jacobs responded that the drafters could get a simple scientific explanation.
Adv Swart stated that the definition needed a sentence of clarification. It was not clear that the 'except' in the plutonium phrase did not apply to the rest of the definition.
Adv De Lange agreed that the 'except' posed a problem. He could see no problem with the definition if it was clear that the exception provision applied only to plutonium.
Adv Swart suggested that the plutonium phrase simply be moved to the end of the definition, just before the 'one or more of the foregoing' phrase.
Ms Camerer stated that if one looked at the definition in conjunction with Clause 12, there was clearly a need for clarification. How would this apply in the case of people with safe nuclear material pretending that they would cause destruction with it?
Adv De Lange stated that if one moved the phrase on plutonium, it would reduce the chance of misinterpretation. He added that it might be worthwhile to include phrases like the 'with reference to section 12' phrase in the definition in all definitions that applied to convention crimes. This would eliminate the problem raised earlier with the definition of explosive material.
Military forces of the State (and terrorist act)
Adv De Lange asked why this definition had been included.
Adv Jacobs replied that it related to the definition of terrorist act. If option 1 or the definition from Canadian legislation (option 3) were adopted, one would need this definition. The phrase also appeared in the bombings convention.
Mr Jeffery stated that 'the State' referred to South Africa, this should be replaced with 'a State' as in the Bill.
Property associated with terrorism
Adv Swart asked if (b) 'entities owned or controlled directly or indirectly by such persons' would include minority shareholders. He raised the scenario of Anglo-American being property associated with terrorism if a terrorist turned out to own 10 shares of the company. The Committees should consider just 'controlled' here. Owned is a loose term and control is the important concept. 'Owned' should be removed or the 'or' replaced with 'and', though the latter would cause a problem since one could control something without owning it. There was a similar problem with the previous Bill.
Adv De Lange stated that there were a number of problems with the definition on its own and it should be flagged. If one committed a terrorist act, all one's property could be forfeited, which would be unconstitutional. Only property with an instrumentality to the act could be forfeited. It might turn out that it is narrowed down in the offences.
The Chair asked if this would mean that shares owned by a terrorist and not used in the terrorist act were then untouchable.
Adv Swart stated that it should be made clear that the legislators were talking about control of property. The Committees should return to the definition when they reached the offences as Adv De Lange suggested.
Mr Jeffery stated that if one looked at footnote 14 to Clause 14, it stated that the provision was to deal with terrorist funding in terms of UN Security Council resolution 1373. He stated that seizure issues would relate to instrumentality and that the intention of the offence was to deal with the funding. The issue should be flagged for attention later.
The Chair stated that the Committees would return to the Definition when they reached Clause 14.
Adv De Lange noted that the definition of police officer included members of the SANDF (South African National Defence Force) - was this constitutional? The Bill involved an enormous extension of police powers - would all these be given to the army by the Bill?
Mr Gibson suggested that the definition be flagged for later attention since he did not have in mind the powers that the Bill would grant. It might help to limit the definition's application to certain clauses to soften it.
Mr Ferreira stated that he was under the impression that the SANDF already have police powers under the constitution when they were doing work with the police service.
Adv De Lange responded that Mr Ferreira was correct in the general sense. However, the Bill extends the powers of the police. He would be concerned if the definition applied to all police functions. The Committees should do as Mr Gibson suggested.
Adv De Lange stated that there were four definitions of a terrorist act. The first was drafted based on the Committee process. The second was based on the OAU convention that South Africa has signed - this is the only convention containing a definition of terrorism. He noted that the OAU convention specifically allowed for liberation struggles conducted within international law. In this option, the words of the convention could be used or the Committee might prefer the drafters' alternative wording. The third option is the definition from the Canadian legislation. This was included because the Law Commission had examined it carefully and the Canadian constitution is closest to South Africa's Bill of Rights. The fourth option is a combination of the other options. The drafters would try to capture the best concepts from Committee discussions to draft a final definition. They were still looking at other legislation. The options were provided to give members a feel for possible definitions.
Adv De Lange raised the issue of motive. Countries that had removed the motivation element from their terror legislation had done so after 11 September 2001 to make the legislation apply as widely as possible. It was good to look at what other countries were doing, but one had to consider South Africa's constitutional requirements. The definition affected the whole Bill. The motivation provision needed to be somewhere between the extreme of no provision and the very wide provision in option 4. He also drew the Committees' attention to (c) in options 1 and 4. This was not necessary because it simply repeated conspiracy offences in the Bill.
Adv Swart responded that there was not really a middle ground between having no motive provision and one so wide that everything was covered - the two amounted to the same thing. He favoured option 4 which included the exception in the OAU convention. He was quick to rule out the first three options since they appeared to define deeds that were merely criminal. Option 4 included the best parts of the other options and had the motive provision, which had to do with what he understood to be terrorism. He suggested that the Committees throw out the first three options and work on the fourth.
Adv De Lange responded that option 4's motive provision is very wide. He suggested that the provision in (a)(i) of option 3 (the Canadian option), possibly with 'unconstitutional' added, might be best. Even the motives in this option - political, religious or ideological - are wide. He stated that the Committee should also think about whether to refer to 'terrorist act', 'terrorism' or, his preferred option, 'terrorist activity'. 'Terrorist activity' covered how terrorists got to the act of terrorism. Probably nothing turned on this question legally.
The Chair stated that it seemed all members were comfortable with option 4, though there might be aspects of the first three options that fitted. Adv De Lange should look at option 4 as the base and at the concepts of 'terrorist activity' and 'terrorist entity'. There had to be a way to deal with people that came together for terrorist activity - one did not want to have to wait until they performed a terrorist act before they could be dealt with. All members also appeared agreed that including a motive provision was important and that it should not be too wide.
Ms Camerer agreed but thought inserting 'unconstitutional' could pose a problem. Perhaps the drafters could provide the motivation for using unconstitutional instead of unlawful. She expressed concern about the phrasing regarding the exception for liberation struggles. If one considered the situation in Iraq, the current definition could face problems. Some would argue that they had been liberated, others that they were occupied. Would the definition fit such cases? The problem with terrorism was that there were always new situations to consider.
Mr Ferreira stated that one should make clear in any definition that the act must be unlawful. He suggested that if one replaced 4(a)(i) with 3(a)(i), then one would probably be close to what was wanted.
Mr Gibson added that 'unlawful' should be included in the provision in 3(a)(i).
Adv Swart suggested that the added motives in 4(a)(i) be removed. The Committees would have to look at 'unlawful' versus 'unconstitutional'. The latter appeared to him closer to what he understood by a terrorist act. Financial terrorism was found all over but included terrorist motives. Other forms of terrorism would be covered by 'religious, political or ideological'.
Adv De Lange stated that one had to consider the elements of a crime. The wrongfulness of an act flowed from (b) in the definitions, (a) provided the intention. If one had (a) but did not do (b) then one had done nothing wrong. 'Unlawful' is unnecessary and this is a problem with option 2. Wrongfulness is an element of the crime and already covered under (b).
Mr Jeffery agreed and said that 'unlawful' or 'unconstitutional' in the motive would be a problem. There is, for example, nothing wrong with wanting a boerestaat, even though this might not accord with the constitution. Wrongfulness depended on the actions one took to achieve the motive. 'Unlawful' would add nothing to the definition.
Ms Camerer agreed and questioned the term 'unconstitutional' - would it be acceptable if people committed terrorist acts to advance a constitutional motive?
The Chair stated that Adv De Lange had the task of looking at the definition. The Committees wanted a definition to work on the next time they met. Members with ideas on the definition should suggest them to Adv De Lange.
Mr Jeffery wondered if restricting the motives to religious, political or ideological would leave out eco-terrorism. It was not clear to him that 'ideological' covered this case.
Mr Gibson raised the exception for struggles for self-determination in 4(d)(i). South Africa is a democratic country - would this not create a backdoor for places like Orania that wanted self-determination? The exception could not apply in a democratic state.
Mr Q Kgauwe (ANC) stated that there were avenues other than terrorism that a group like the Boeremag could follow in a democratic state. He asked for clarity on why 'unconstitutional' should be removed.
Mr A Maziya (ANC) stated that people with views on the definition should share them with Adv De Lange.
Adv De Lange responded to Mr Gibson that one needed to be mindful that South Africa had signed a convention that included this provision. The provision was aimed at extradition and was not about terrorism in one's own country. Further, if one looked at the AU convention text, there was a balancing proviso that 'political, philosophical, ideological, racial, ethnic, religious or other motives shall not be a justifiable defence against a terrorist act'. On Mr Jeffery's point, he stated that religious, political and ideological motives were the obvious ones for a definition and suggested that eco-terrorism would fall under 'ideological'. This issue should be discussed though. The problem with examples from other countries is that they had recently dropped the motive proviso and they did not have South Africa's constitution. He stated that he would try to have a definition for the Committees to work on by the meeting on 28 August.
Ms Camerer responded that going back to the AU convention had been helpful - it would be unfortunate if the provision let groups like the Boeremag off the hook. She thought it was important to have this sort of proviso, especially given South Africa's history.
The Chair thanked the drafters for their work on the definitions. Whilst there might be weaknesses, it was a considerable improvement on the original Bill and had given the Committees something to work on.
No definition of 'terrorism'
Adv Swart noted that the Bill did not define terrorism. Possibly a definition like 'terrorism is any terrorist activity as defined in the Bill' should be included.
Adv De Lange responded that there would be an offence of terrorism. The Committees would have to look at a definition of terrorist activity - this was important for financing because finances would be used for the act. The Bill would not need a definition of terrorism since it only referred to the specific offence in Clause 2. Where the Bill referred to terrorism, the Committees would have to consider whether it was a reference to the offence or to terrorist activity.
Adv Swart responded that Clause 2 was both an offence and a definition of terrorism.
Adv De Lange responded that they hoped to get away from using 'terrorism' to using 'terrorist activity'.
Adv Swart asked if the offence of terrorism would be kept.
Adv De Lange replied that it would. The drafters had gone for the offence of terrorism not the concept. It did not look like the Bill would need a definition of terrorism, but the issue could be looked at. This meant that 'terrorism' should not appear in the preamble, since the preamble did not refer only to this offence but also to the associated crimes.
Chapter 2 (Offences and Penalties)
Clauses 2, 3, 4, 19 and structure of Chapter 2
Mr Gibson pointed out that in Clause 2(c) 'and' should be 'an'.
The Chair asked if one needed a definition of terrorism if terrorism was included as a crime.
Adv De Lange replied that it was defined as an offence, so one did not need a definition.
Adv Swart noted that it was very difficult to define terrorism so he understood that it was included instead as an offence. He found this acceptable.
Adv De Lange stated that Clauses 2, 3, 4 and 19 should be read together. They captured the usual terminology of associated offences. He was not sure why threats were not covered in Clause 19 instead of 2(a). Clauses 4(2) and 4(3), on facilitation of terrorism, seemed better placed in Clause 2. Clause 2 should contain crimes of committing and participating in terrorist acts. Backup crimes, such as conspiracy, attempts and threats, should be in Clause 19. Clauses 3 and 4 should contain crimes that helped terrorism yet were lesser crimes than those in Clause 2 such as training and recruitment. Participation in a terrorist act should be in Clause 2. Everything necessary was there, but the Clauses need to be cleaned up. Clause 4(3)(a) was conceptually wrong - one could not be guilty of facilitation if one did not know that one was facilitating a terrorist act.
Mr Gibson suggested that the convention offences appear after Clause 2, followed by offences connected with terrorist acts, then harbouring. He suggested that 'terrorist acts' embrace convention offences. There was no sound reason to have convention offences separately. The Bill would read more simply if this were done.
Adv Jacobs responded that these proposals would be followed up. He could see no reason why convention offences could not be included under terrorist acts.
Adv De Lange stated that it might make sense that the offences in Clauses 3, 4 and 19 flowed from Clause 2 and convention offences. Mr Gibson's suggestion could have merit. If one looked at the French legislation, all these offences were considered 'terrorism'. The problem was that this exercise proved impossible and would lead to difficulties around financing. The suggestion would be looked at. A similar attempt had been made with the Corruption Bill, but fitting all corruption in proved a problem. One could consider making reference to convention offences in the clause on terrorism, but some convention offences were lesser offences.
Adv De Lange asked if the subclauses (2) [such as Clause 1(2) A person commits an offence under subsection (1) even if the terrorist act does not occur] amounted to anything more than attempt.
A Department official suggested that a person might threaten a terrorist act without attempting terrorism.
Adv De Lange responded that he could see the distinction, but one could not equate attempts and terrorist acts. Some consequence must flow. Attempts should be under Clause 19 - one could not punish the person in the same way if that person did not perform the act.
Adv De Lange asked why Clause 4(1) continued after the phrase 'Convention offence'. This added another hurdle for prosecution. Facilitation is an offence on its own. Further, the proviso should be included later in the Bill as a defence - that is, if a person is charged under 4(1), then this proviso may be raised as a defence.
Mr Kgauwe asked if reducing Clause 4(1) meant that one would be guilty of an offence if one did not report the terrorist.
Adv De Lange replied that if one knowingly harboured or concealed a terrorist, then one would be guilty of an offence.
Mr Kgauwe asked about a case where one knowingly harboured someone with the intention of reporting that person.
Adv De Lange responded that the Clause added a second 'hoop for the State to jump through'; they had to prove the crime of facilitating terrorism before a person could be found guilty of harbouring. It was not necessary to have this second hurdle.
Adv De Lange stated that he was not sure why the term 'unlawfully' was included in Clause 5.
The Chair asked what lawful force or threat would be.
Mr Gibson suggested that an attempt to detain a hijacker or to restrain an unruly passenger could be lawful force.
Adv De Lange responded that the offence is hijacking - if one were subduing a hijacker, one could not be hijacking the aircraft.
Adv Jacobs stated that the wording of the convention included the term 'unlawfully'.
Adv De Lange responded that conventions laid down principles - one did not have to stick to their precise wording or this could cause problems, as Mr Douglas had illustrated with the term 'foreign State' in the definition of internationally protected person. One had to adapt the conventions to fit one's legal system. Unless there was a good reason to include the term 'unlawfully', it should not be included since it is not usual practice and would cause problems in court action.
Ms Camerer stated that the Committee should seek the advice of the State Law Advisers on this.
The Chair stated that it appeared everyone agreed on Clause 5 except for the term 'unlawful'. The Committee could check with the State Law Advisers.
Adv Jacobs noted that the term appeared in all the conventions. The drafters asked the International Law Advisers on whether the wording had to follow that in the conventions. They had replied that one had to superimpose the convention to fit into the legal framework.
Members noted that 'unlawfully' appeared again, this time with 'and intentionally'.
Adv De Lange explained that 'intentionally' did not have strictly to appear, although if it were left out, it was left open to the courts to interpret the Clause as including negligence.
The Chair stated that 'unlawfully' would have to be considered.
The Chair noted that this Clause was based on a convention accepted but not yet ratified.
Mr Gibson objected to the style and grammar of the Clause. For example, in subclause (g), 'connection' should not appear.
The Chair stated that there were problems with the drafting of the Bill but that the focus should be on its substance. Members appeared content with the contents of the clause.
Mr Gibson agreed that it was only a small problem.
The Chair noted that 'unlawfully' appeared again.
Mr Gibson stated that the offences in the Clause could never be lawful.
Ms Camerer stated that subclause (b) should be included under (a). States detain people all the time - the difference here was that they did not do so with the intentions listed in (b).
Adv De Lange agreed that the subclauses should be combined.
The Chair stated that this should be corrected.
The meeting was adjourned.
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