National Strategic Intelligence Amendment Bill & Intelligence Services Amendment Bill [B37-2008]: deliberations

Intelligence Legislation

05 August 2008
Chairperson: Mr C Burgess (ANC)
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Meeting Summary

The National Communications Centre (NCC) returned to give a brief summary of the financial implications that would occur once the NCC became a stand-alone department. The NCC was self-sufficient enough already to own a building, furniture, software and hardware. However, further financial implications would follow from the requirements of the Public Finance Management Act, in appointing staff at certain levels, in having an audit committee, drafting policies and directives and having those assessed, and publication of an annual report. It was possible that some consultants may need to be appointed. Members asked some questions of clarity, asked whether this had been cleared with the Department of Public Service and Administration, and noted that a full figure would be needed before the Bill was passed. It was noted that the figures must be presented to the Joint Standing Committee on Intelligence.

The Committee noted that it would still finalise deliberations on the National Strategic Intelligence Amendment Bill after hearing from the Minister, and that Clause 5 and the Schedule, including the functions of the Inspector General, must be given further attention.

The Committee deliberated on the Intelligence Services Amendment Bill. It noted that the short title must be amended to reflect the removal of the requirement of the advisory council for the Academy. Wrong citations of the Acts were noted in Clause 1 and 8 and these were to be corrected. Members questioned why the wording in clause 6 was changing the word “must” to “may”, and said that the funding of the training centre must be further investigated. Typographical errors were to be corrected in clause 8. Clause 9 was flagged for further discussion, but it was explained that the Minister of Finance’s permission was required to acquire immovable property, as this would effect changes to the Public Finance Management Act. Questions were posed, in relation to Clause 10, about the consent of the staff, and a stylistic point was raised. The power of the Minister to delegate the power to buy and sell, in Clause 11, was to be discussed further. In relation to the Schedule it was noted that copies of the Acts to be amended would be obtained.
The point was raised that the statement that there would be no financial implications must be incorrect, and the Department was asked also to be more specific about the departments consulted. Members asked that the legal drafters should be present when the Committee dealt with legislation.

The Chairperson noted that there had been requests from members of the public who had missed the deadline for submissions to be allowed to address the Committee. While the Committee was not in principle opposed to this, it would first hear the Minister’s comments and then discuss how and where to deal with these requests.

Meeting report

Chairperson’s opening remarks
The Chairperson noted that the Schedule of the National Strategic Intelligence Amendment Bill still had to be dealt with, and then the Committee would continue with the Intelligence Services Amendment Bill. He noted that the proposed amendments now tabled created a neater view of the Bill. They incorporated a better understanding of the way the Act would look after the Bill was passed.

The Chairperson asked the Committee whether it should request the drafters to redraft the Bill.

Adv P Swart (DA) replied that the drafters should not do any redrafts until after the Committee had its meeting with the Minister to sort out the policy issues.

National Communications Centre (NCC) presentation
Mr Loyiso Japhta, Executive Director: NCC, indicated that he was not able to present a conclusive detailed account of the financial implications, but was able to present an indicative account. A costing exercise had not been done. Furthermore he asked that the Committee regard the document as confidential.

Mr L Landers (ANC) asked that the staff could ensure that only the Committee members had copies of the document.

The Chairperson responded that the Committee did not expect a full costing analysis on such short notice. All the documents that were handed out by the NCC should be handed back to him. He did not want any operational details, only the broad scanning of finances.

Mr Japhta continued that the NCC had a structure that was approved by the Minister. Once the NCC was established as a stand-alone department, a Director-General would be employed, and that would mean financial implications. The person in charge would be at the level of the Director-General and accounting officer. There were already people at those levels. There were other possible financial implications regarding the provisions of the Public Finance Management Act (PFMA), since this required that certain capacities be established in the departments of the State, therefore the NCC would need its own Chief Financial Officer (CFO). It would also be mandatory that the NCC appoint a Chief Information Officer (CIO). Both of these positions required administrative support, and that would also have financial implications. The NCC would have to consider whether it should elevate the current level of the person in charge of the internal audit. There would also be an audit committee of the NCC and that would also give rise to further financial implications. The NCC would have to have its own policies and directives that governed its business. His view was that those were already in place. However, for the purposes of the PFMA those policies and directives would have to be assessed. NCC would also have to publish an annual report, with additional financial implications. There was a strong view that it would have to employ a few consultants during the transitions to a stand-alone department. Those consultants would not fulfil the role of the National Treasury and Department of Public Service and Administration (DPSA). The preparatory work was done with the National Treasury and the DPSA and the National Intelligence Agency (NIA). The entity was already firmly established as a department. It was the conceptual issues that were to follow. NCC did intend to grow, as signals intelligence was not the only form of intelligence.

Discussion
The Chairperson asked if the NCC would require its own building.

Mr Japhta replied that it already had its own building and there was no need for another one.

The Chairperson asked if software and hardware was included.

Mr Japhta replied that the CFO would certainly ensure that all those things were dealt with, but broadly speaking the NCC was already sufficiently supplied with the required tools. The NCC was already operating as a stand-alone entity, except that it was doing so as a spending agent within the NIA. The CFO would be in charge of finance, assets, supply chains, compliance and internal control. Those were issues that were already in place. It was just a case of severing the link between NCC and NIA.

Adv Swart noted that the Committee would have to have a proper figure before the Bill could be passed, and hence a sizeable costing exercise would have to be done. He asked for an indication of when the Committee could expect it because that could delay the completion of the Bill.

Mr Landers responded that if the Committee was going to go that route then those figures would have to be presented to the Joint Standing Committee on Intelligence (JSCI) as figures were never presented to the Ad hoc Committee on operational issues.

Mr I Vadi (ANC) asked whether, if this was regarded as setting up a new department, it had been cleared with DPSA.

Mr Japhta replied that it was cleared with both DPSA and National Treasury.

The Chairperson thought that the way forward was for Mr Japhta to give the financial implications to the Minister. There was quite a good idea of a few of the implications. The concern of the Committee should be noted and the fact that a full cost analysis was actually going to be required. However, he was not sure if there was any reason to do a cost analysis when they had not sorted out the policy issues.

Adv Swart asked if it would be inappropriate that a copy of the document on financial implications of the NCC was given to the Secretary in her other capacity as Secretary of the JSCI. It may happen that there could be instances where the Committee would want another look at it.

The Chairperson thought that the JSCI should keep a copy of the document.

National Strategic intelligence Amendment Bill (the Bill): Committee deliberations
Amendment of Section 6: Clause 5
The Chairperson reminded the Committee about Clause 5. This clause referred to the Minister making regulations to deal with the instructions he had been given or that had to be given.

Schedule 1, Part A, Laws Amended (Section 6)
The Chairperson suggested that perhaps the functions of the Inspector-General, in terms of its oversight role over the NCC, should given more consideration. The JSCI would be dealing with the actual oversight and not the Ad hoc Committee. He added that the Schedule needed to be given more attention. If there were no more issues with this Bill then the Committee could dispose of it for the moment and move on to the Intelligence Services Amendment Bill.

Intelligence Services Amendment Bill (the Bill): Committee deliberations
Short Title
Mr Landers noted that the short title did not reflect the removal of the requirement of the advisory council for the academy.

The Chairperson noted this and the Committee resolved that it was an omission that should be added.

Amendment of Section 1
The Chairperson noted that there was an error in the first line and that it seemed to be the wrong Act that was cited

Ms Bongiwe Lufundo, Principal State Law Advisor: Office of the Chief State Law Advisor, replied that this was a typographical error and that it should read ‘Amendment of Section 1 of Act 65 of 2002, as amended by Section 8 of Act 52 of 2003’.

Clause 6: Amendment of Section 6
The Chairperson asked if there was a reason why the wording should be changed from ‘must’ to ‘may’.

Ms Lufundo replied that when the legislation referred to ‘must’ it was implying an obligation, whereas ‘may’ meant it was at the Minister’s discretion. She was not privy to the reason why there was the removal of the obligation for the Minister. 

Mr Landers wanted to know who would fund the training centre.

The Chairperson noted his concern.

Clause 8: Amendment of Section 10
The Chairperson noted that it seemed that once again the wrong Act was cited.

Ms Lufundo replied that it was an error and that it should be ‘Act 65 of 2002’.

The Chairperson noted that in Clause 8(a) a hyphen was to be inserted. However, in the principal Act, the hyphen was already in Director-General.

Adv Swart noted that the word ‘the’ in Clause 8(a) was repeated.

Ms Lufundo replied that it was an error and would be corrected.

Clause 9: Amendment of Section 12
Mr Landers wanted the Committee to flag the clause because it seemed that the approval of the Minister of Finance was required to acquire immovable property, yet it was not needed when that property was sold.

Ms Lufundo replied that the reason was that the PFMA was being amended and therefore the concurrence was required of the Minister of Finance. The disposal of the property was dealt with later in the Amendment Bill.

The Chairperson noted the State Law Adviser’s response and said that it would have to be looked at.

Clause 10: Amendment of Section 13
Mr Vadi asked if this was a specific provision for the intelligence sector and, if so, whether this was done with the consent of the staff.

Mr Landers raised a stylistic query and asked that, to maintain consistency, the words ‘despite subsection (1)’ should read ‘notwithstanding subsection (1)’.

Adv Swart asked if the NCC should be included in the clause or whether the NCC had been included in the definition of ‘services’.

The Chairperson thought that the NCC had been included in the definition of services.

Clause 11: Amendment of Section 20
Adv Swart noted that the clause gave the power to the Minister to delegate the power to buy and sell property.

The Chairperson noted his concern and agreed to flag the clause for further discussion.

Schedule
The Chairperson would instruct the staff to find copies of all the particular Acts that were referred to in the Schedule as being amended.

Furthermore the Chairperson asked if there were no other amendments that should occur in the oversight Act.

Financial Implications for State
Mr Landers noted that once again it was stated that there were no financial implications, however he felt that it should be reassessed. 

Departments Consulted
The Chairperson noted that the clause was quite vague and asked that perhaps when the drafters and the Department or Ministry returned they could be more specific.

Mr Vadi mentioned that usually when Members dealt with legislation the Department and its legal team was present to answer questions.

Mr D Bloem (ANC) concurred with Mr Vadi’s concerns.

The Chairperson explained that the lawyer for the Ministry was ill and the Minister was unable to attend the meeting at present.

Mr Vadi responded that there must be other lawyers who were available.

The Chairperson then noted that there were various members of the public who had missed the deadline and who had asked for the opportunity to make submissions on the Protection of Information Bill. The Committee was not against hearing further from the public. However, the Committee would have to hear from the Minister and perhaps afterwards would make a decision on the submissions. Members would also need to sit down and assess the submissions that they had heard earlier. They had not debated the issues within the Committee and they would need to assess whether the time limits set for the bills were sufficient. They would need to deal with it in an informed and responsible manner.

The Chairperson adjourned the meeting.

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