Intelligence Services Amendment Bill, National Strategic Intelligence Amendment Bill, Protection of Information Bill: discussions with Minister

Meeting report

Intelligence Services Amendment Bill, National Strategic Intelligence Amendment Bill
The Chairperson welcomed the Minister for Intelligence, Hon Ronnie Kasrils. He mentioned that at the previous meetings, the Committee raised numerous questions, and there was concern that the officials from the Ministry present were not ideally placed to answer the questions. The Committee had felt that perhaps the Minister could give further insight to the issues. He cautioned that it was not the intention of the meeting to canvas and look into deep operational issues related to the National Communications Centre (NCC). Some of these issues were classified and should not be dealt with in open meetings. Therefore he would have to exercise his discretion in which questions to allow.

Hon Ronnie Kasrils, Minister for Intelligence, noted that the Executive was providing the legislature with Amendment Bills to correct any flaws in the principal Acts, in order to ensure that there was improvement and enrichment. He was pleased to attend the meeting at the Committee’s request, as this indicated that it was a process and recognised that teamwork was required. The legislature was in the best position to engage with the public. He was not nervous about the possibility that a sentence might be mangled or a comma dropped. He received positive feedback and appreciated the input made by the public.

Discussion
Adv P Swart (DA) asked a preliminary question concerning policy. He referred to the National Strategic Intelligence Amendment Bill (NSIAB), clause 2 (d), and asked what the executive thought a target would mean in this specific clause, and what was meant by intercepting this target. 

The Chairperson clarified that that the member was referring to the wording and what was meant by the wording, and trying to ascertain the thinking behind the clause.

Minister Kasrils replied that the intention of the clause was not to involve the Minister in the decision to select targets for the NCC. His attention had been drawn by his officials to the formulation of the clause, and he had noted the problem. They were dealing with the National Communications Centre (NCC) and as a mechanism of the State it had enormous power.

The Chairperson thought that the point made was correct, and that there was lack of clarity in this clause. He suggested that the Executive be allowed to re-draft the clause in a more comprehensive format before the Committee analysed it again.

Mr L Landers (ANC) reiterated his appreciation for the Minister’s concession regarding this clause. The Committee needed to understand the practicality of it. He understood that the NCC would consult with other role players and then formulate a set of targets, which would then be presented to the Minister. The Minister would then either reject or approve some or all of those targets, and inform the NCC of his decision. There would not be a situation where the political head would select a target and instruct the NCC. He asked for confirmation of his understanding of the Section.

Adv Swart added that again the word “target” was used. He had initially asked, for purposes of clarity, what was meant by “target”. He also asked if it was the intention of the NCC that they would enter a number of any person without the authority of a designated judge. He enquired if it was acceptable that any reference to target would mean a phrase or an indicator that the NCC’s computers would be able to be pick up. He added that in Clause 5 the Minister was allowed to make regulations in consideration of Section 2(d), and that would also have to be changed. It seemed from the Bill that the Minster would be allowed to make regulations on his own.

The Chairperson remarked that the issues relating to the wording of the Bill would be fair questions. He thought that perhaps the Committee should allow the Minister to come back with a new draft that would reflect the intention more clearly. At present there was no definition for “target” in the Bill.

Minister Kasrils replied that it was correct that the executive was not part of the decision as to which names should be loaded into the NCC system. That was not the purpose of the Clause. The loading-in of names must come from the intelligence agencies. The NCC’s mandate was to scan foreign airwaves and identify possible threats. The regulation was in terms of a policy that came from the Executive, which linked to the Minister’s mandate and responsibility to spell out the policy and regulations on how the NCC should function. The NCC would not need to approach the Minister with every single foreign call they wanted to load into. There was a range of very strategic top level and sensitive issues that were important. It was not expected that the NCC would come to the Minister with the smallest detail. This was what the regulations were intended to convey.  He stressed that the NCC was an instrument that only dealt with foreign calls into or through South Africa, and therefore the reference to a “target” meant a foreign individual or foreign organisation engaged in a threats to the country or involved in trans-national syndicated crime. The NCC would receive numbers through scanning the airwaves for all signals, and was able to capture particular conversations.

The Chairperson thought that the Committee should wait for the amended wording from the Ministry. The NCC was an institution that was useful and necessary in the fight against crime, and was used to protect the country. The process should not be seen as a way to infringe on people’s right to privacy. If the potential of the NCC was properly understood then the intention of the clause would become apparent. Institutions should not be used for something outside their intended purpose.

Adv Swart explained that the way in which the Bill currently addressed the concerns could create an impression that there might be invasion of the right to privacy. He wanted the Executive to openly state that this was not the NCC’s intention. He was more concerned that the wording properly expressed the intention.

The Chairperson referred to the amendment in the Bill that allowed the Minister to delegate his authority to dispose of immovable property. It was suggested that this extended his authority too far.

The Chairperson mentioned that another issue was the stand-alone approach of the NCC, and the concerns about the Executive and the policy decision. He asked for further clarification.

Minister Kasrils replied that the NCC was similar to facilities found in many other countries, and they were all governed in different ways. The NCC was a strategic facility with enormous power, was growing, and the ambit would increase over time. International practice had indicated that such institutions were usually stand-alone. The NCC needed to operate in a statutory fashion, with its own legislation, but be accountable to the executive authority. There was clearly a logical reason. Presently it resided under the National Intelligence Agency (NIA) Counter-intelligence organ, but its primary focus was external and foreign, and it was of major value to the police and crime services. Therefore it was logical that it should become a stand-alone institution. The overriding concern was that it was an instrument of enormous power. Therefore attempts must be made to ensure that the power was not abused. It would be easier to conceal abuse if an institution were to be placed under the wing of another department, rather than being directly responsible to the Executive.

Adv Swart linked his question to the immoveable property question. Because of the amendments to the Public Finance Management Act (PFMA), there was the possibility, in concurrence with the authority of the Minister of Finance, to buy immovable property but not to sell immovable property. He asked if it was an interim issue or if the intention was to return to the PFMA.

The Chairperson clarified that the Committee wanted to know if delegation of powers was the intention.

Minister Kasrils replied that if the Minister of Finance had to take responsibility for purchasing a building then spending figure levels should probably be indicated. If there had to be sign-off on purchase, then it should follow that if the building was to be disposed off, there should be sign-off by the Minister on this issue as well. The Bill was written in a rather technical way, and he agreed that the phrasing of this could be better, and that levels should be indicated, with proper reference to the PFMA and the technicalities. He suggested that he should clarify the matter with National Treasury, and revert to the Committee on that point.

Adv Swart asked if the intention was that the Minister should be able to delegate the function of acquiring or buying immovable property.

Minister Kasrils replied that he understood the problem. This had to do with the issue of delegation, and they could not operate unless there was delegation. There was the factor that gave the Minister leeway to judge. It would be possible to give an indication of the scale of purchase, but this was likely to be written in the regulations.

Adv Swart responded that the Committee wanted clarity on these issues. Even if there was delegation,  the Minister remained finally accountable.

The Chairperson added that this concern raised additional points on the delegation issues.

Adv Swart noted that if ‘may’ was replacing ‘must’ in Clause 6(2) in the Intelligence Services Amendment Bill, then ‘responsible for the curriculum and research function’ should be removed, if a deputy head was not appointed.

Protection of Information Bill
The Chairperson allowed limited questions on the Protection of Information Bill.

Adv Swart asked if, at a later stage, the Minister would be available for a proper discussion on the Protection of Information Bill. He thought that at this stage it would be pre-emptive to ask any policy questions. If the Minister would be available later during the fourteen or fifteen months that this Committee would likely be busy with the Bill, then he would not ask any questions now. If the Minister would not be available later, then he believed that the Chairperson should not restrict the questions from Members.

The Chairperson corrected Adv Swart, noting that the legislature had given a limited parliamentary time period to deal with the Bill. There was no intention to deal with it for 15 months. It would be up to the Committee Members to decide whether they would want the Minister to return.

The Chairperson noted that there was a concern on the broad definition of the organs of State, and asked for a reason for this, and whether there were other ways of regulating. The Bill would affect all organs of State; but the definitions in the Bill went beyond those. There was a procedure in the Bill that allowed for exemption, but the presenters were concerned that it might not be sufficient.

Minister Kasrils replied that he found the submissions useful. He wanted a free flow of information between the Committee and the public. The organs of State were given a very broad definition. There were three spheres of State involved - local, provincial and national - that needed to be addressed. In the Bill it was said that there would be wide-scale exemption applied. For instance, it was not foreseen that departments of health or education would have sensitive information. It was not intended to apply to organisations that did not have classified information.

The Chairperson responded that this was something that the drafters should look at, as perhaps there was a better way to capture this in the Bill. The impression created by the media was that everyone was caught up in the Bill, that any information would be classified, and that nobody was exempted. Now the Minister had clarified that that was not the intention, that only the departments that did have information needing protection would have the Bill applied to them. If the Bill only applied to ten institutions, but a thousand applied for exemption, then there would have to be a practical way found to deal with the applications. Perhaps the Bill should list the institutions to which it would apply. Further institutions could be added to the Schedule of the Bill as it became necessary.

Mr Landers pointed out that Bill mentioned the use of the archives, but one submission had said that this mention was discouraging. It was said that if the National Archives were to play a crucial role in the protection of information, then their objectives would not be reached. There were concerns regarding Clause 21 of the Bill, that at a low level there would be restrictions of mundane information. 

The Chairperson mentioned that there was a presentation from both the South African History Archive (SAHA) and the Nelson Mandela Fund (NMF). The archivist had noted that the Archive was consulted in the drafting of the Bill, and that even though there were challenges the Archive was generally happy with the Bill.

Minister Kasrils replied that he was aware with the consultation with the National Archives. He had extensive experience with the Archives. He recently spoke at a meeting where the Archives were present, and they had confused Promotion of Access to Information Act (PAIA) with the Protection of Information Bill.  PAIA fell under a different department. It was clear that proper administration was needed. Two different departments were involved. It should not be that classification be left to juniors who could apply themselves in a bureaucratic way. Obviously it was also impossible to load a single person at the top with all that responsibility. There needed to be some proper provisions made.

Adv Swart understood the spirit in which the Bill was written, yet he commented that so many matters remained very broad. There needed to be some consideration given as to how to tighten the Bill. There were many organs of State and it would be useful if the Ministry was able to come up with a schedule as suggested, and perhaps add a procedure that organs of State could apply to be included. He was concerned that many would withhold information and simply classify documents. It would be better if organs of State could apply to classify documents.

The Chairperson clarified that this was a long comment that added on to what was previously said.

The Chairperson noted that another area of concern was the appeal process. It had been suggested that perhaps the Minister was not the appropriate person to whom appeals should be made, and he wondered whether this was a necessary provision and whether there was room to look at something in addition that would satisfy concerns.

Minister Kasrils replied that there was indeed room to look at another mechanism of oversight, other than the Minister. One idea had been forthcoming for  the provision of an oversight mechanism to adjudicate disputes. This was under consideration prior to the discussions with Cabinet, but this was not included because of the concerns about proliferation of public structures. There were no real objections and he looked forward to further considerations around this point..

Adv Swart mentioned that a Member had suggested that perhaps the Office of the Inspector-General be considered as an oversight mechanism.

The Chairperson interjected that he understood that Minister was amenable to look at other structures.

Minister Kasrils replied that the Inspector-General was a possibility, but he left it to the Committee to come up with recommendations.

The Chairperson reported to the Minister that, both in the public hearings and based on the written presentations received, there had been quite positive feedback. Nobody was actively opposed to the legislation. However, areas of concern were raised and there was a need to find a balance to alleviate some of the concerns. There were no decisions taken as to the manner in which to deal with the Bill.

Minister Kasrils gave his closing remarks. He thought the nature of the relationship between the Committee and the Ministry was genial, and he was ready to come before the Committee. He stressed that the process was intended to create better legislation and that it would serve the people and the State better. There must be a balance achieved between national security and national interest. He could say that the road to national security was paved with the best of intentions. He had heard serious concerns around the question of the public interest exemption clause, and was willing to engage to see to what degree the Ministry could accommodate the concerns.

Intelligence Services Amendment Bill: Parliamentary Legal Adviser’s Memorandum
The Chairperson reminded the Committee that whilst they were dealing the Intelligence Service Amendment Bill, Members could also look at the Schedule of the laws that would be amended. Adv Jenkins was asked to look at the schedule, and his response had been given. Accuracy of information was of particular concern.

Mr Landers thought the Committee had dealt with the schedules correctly. He noted that where the references were correct there was no problem, but where there were incorrect references then the changes should be made. At the end it was noted that since there was no Part B, there should not be a Part B in the National Strategic Intelligence Amendment Bill.

Ms Bongiwe Lufundo,  State Law Adviser, Office of the Chief State Law Advisor, went through the document and noted the instances where the memorandum had indicated corrections. The law advisers would amend the wording where necessary.

The meeting was adjourned.