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INTELLIGENCE LEGISLATION AD HOC COMMITTEE
19 September 2003
GENERAL INTELLIGENCE LAWS AMENDMENT BILL: DELIBERATIONS
Chairperson: Dr S Cwele (ANC)
Note to Ad Hoc Committee on Intelligence
Amendments proposed to the General Intelligence Laws Amendment Bill
The Committee met to continue deliberations on the General Intelligence Laws Amendment Bill [B47-2003]. They concentrated on movable and immovable property, delegation rights, harmonisation of the two Acts and the implementation of cross-references.
The Chairperson notified the Committee that consultations with the Department were taking place as the amendments were discussed. Mr Dlono (Head of the Ministerial Services) confirmed this.
The Chairperson asked the State Law Advisers to clarify any inconsistencies and problematic issues so that the members could present their views on the proposed amendments and finalise deliberations on Monday.
Schedule 1 to Act 68 of 2002 (Section 23 of the Amendment Bill)
Mr Hoon (State Law Adviser) explained that the Intelligence Services Act and the Electronic Communications Security Act passed last year, both amended the same provisions without taking each other into account. The Intelligence Services Act came into effect on 20 February 2003 and the Electronic Communications Security Act came into operation one week later with its own amendments. The responsibility of the Committee was to harmonise the two Acts. The Committee thought this would be no problem.
Amendment of section 20 of Act 65 of 2002 (Section 13 of the Amendment Bill)
The next issue corresponded to the amendment of section 20 of Act 65 of 2002 (Section 13 of the Amendment Bill). The clause was full of cross-references and lacked clarity.
Sections 10(3), 12(2), 15, and 19 of the Intelligence Services Act, 2002
Mr Hoon referred the members to Section 10(3) of the Intelligence Services Act 2002 and pointed out that subclause (3) was added. [See the attached document called 'Amendments proposed to the General Intelligence Laws Amendment Bill']. The reason was that it would not be logical for the Minister to delegate the functions listed in subclause 10(3) to the Director-General, because the Director-General required the approval of the Minister to do that.
Mr L Landers (ANC) added that the clause gave the power to the Director-General to delegate but the same substance was already included in another clause. The legislation could confuse a judge and cause problems.
The next change corresponded to Section 12. The subsections (2)(a) and (b) regarding immovable property could not be delegated by the Minister but by the Director-General, whereas (c) and (d) dealing with the movable property, could still be delegated by the Minister.
Mr P Schalkwyk (DP) suggested that the approval of expenditure on operational matters should not be required from the Minister of Finance, but all other non-operational expenses could be left up to the Minister's discretion.
Ms M Olckers (NNP) said that the way around having to ask the Minister's permission was to call any expenses "operational".
The Chairperson noted that was often difficult to pinpoint where the operation started and ended. He suggested that the Committee members reflect on the issue over the weekend and reconvene the discussion on Monday.
There was a technical correction in Section 15. The subsection (1) was removed as it was previously added there by mistake.
The Department thought that all subclauses in Section 19 should not be delegated by the Minister, because they all were intertwined and dealt with the same matter. It did not make sense to only exclude subclauses (1) and (4). Currently subclauses (1) and (4) could not be delegated, whereas the subclauses (2) and (3) could be delegated by the Minister. Mr Hoon agreed that it made sense from a legal standpoint.
Mr Dlono said that while the Director-General needed to exercise the responsibility over hiring and firing, it could become problematic if that power was exercised wholly by the Director-General without supervision. The task of the Council on conditions of service would be to monitor the working environment and to make sure that members could take part in decision-making over issues affecting their lives, including secondment.
Mr Landers inquired about Section 9 on the composition of the board. The proposed amendment changed the number of boardmembers from 9 to 12 of, one of whom was the non-executive chairperson. Mr Landers said that it was not clearly stated who was in charge of appointing that chairperson. Since he was not satisfied with that composition, he proposed the wording to be changed to: "of whom (a) one is designated by the Minister as non-executive chairperson".
Mr Hoon referred to his notes on the proposed amendment to Clause 11. The suggestion was to add "subject to Section 70 of the Public Finance Management Act ", after "Minister of Finance" in subclause (a).
Ms Olckers objected to adding any new references to the clause because that would only make the reading more difficult. She instead proposed to expand the formulation by spelling out the appropriate substance.
Mr Landers said that the proposal was good and should be incorporated.
The Chairperson left the responsibility of improving the clause up to the State Law Advisers.
The Chairperson adjourned the meeting until the morning of Monday 22 September.
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