Intelligence Services Amendment Bill, National Strategic Intelligence Amendment Bill & Protection of Information Bill: deliberations

Meeting report

Appointment of new Minister of Intelligence.
The Chairperson noted that Dr S Cwele, a former Member of the Ad hoc Intelligence Committee and Chairperson of the Joint Standing Committee on Intelligence (JCSI) had been appointed as the new Minister of Intelligence. The Committee agreed that the Chairperson should send a letter thanking Dr Cwele for the work he had done and wishing him well on his appointment.

The Chairperson noted that although he had invited the Minister to the meeting he was currently dealing with many other responsibilities, and could not attend. However, the Committee agreed that the Minister should be involved in order to stay on course dealing with the legislation, as this was procedurally proper.

Intelligence Services Amendment Bill [B37-2008]: Deliberations
Ms Bongiwe Lufundo, Chief State Law Advisor, Office of the Chief State Law Advisor, referred the Committee to a document containing the proposed amendments to the Intelligence Services Amendment Bill, and noted that since last reporting to the Committee there had been only one further change, to sub-clause 9(2)(a). The law advisors had been asked to remove the references to the current Public Finance Management Act (PFMA) as it was likely to change, but she stated that the new legislation was not yet finalised and therefore that the references must be retained.

The Chairperson noted the reference to 'erect or maintain any buildings on the property so acquired' in 9(2)(a) and asked if this was a recent change.

Ms Kerensa Millard, Head of Legal Services, Ministry of Intelligence, responded that the Committee had previously raised a concern that the Department of Environmental Affairs and Tourism should not be able to delegate the disposal of immovable property to the Director-General. Consequently, the drafters had separated the reference to the sale of property from the maintenance of property.

No further questions were raised on this Bill.

National Strategic Intelligence Amendment Bill [B38-2008]: Deliberations
Ms Lufundo reported that there were no further changes. The questions Members had raised for clarity had already received responses from the Department of Intelligence at the previous meeting, which was a closed session.

Discussion
The Chairperson asked how the Department envisaged the key positions of the National Communications Centre (NCC) staff. There were some concerns around  producing that information in an open meeting, and it had been understood that the answers would be presented to the Chairperson of the JSCI. He asked if that had been done.

Ms Millard responded that the response document had been handed in at the last meeting.

Mr Alvin Khosa, Head: Legal Services, NCC, responded that at the last closed session, Mr Loyiso Japhta, Executive Director of the National Communications Centre had given a presentation, but had left shortly afterwards for Switzerland. The Committee did raise the issue of the Department, but it was decided that this matter would be left to the other committees. He added that a document was handed in at the closed meeting concerning the finances and additional posts.

The Chairperson noted that it was his understanding that this document was to be handed to the Chairperson of the JSCI, and he asked if that had been done.

Mr Khosa responded that, as far as he knew, it was done in that meeting. If this had not happened, through some oversight, then he would ensure that it was handed as soon as possible to the Chairperson of the JSCI.

The Chairperson responded that the document had not been discussed at the JSCI meeting, and that it was important for a deeper discussion of the oversight issues within the Committee and the JSCI. He simply wanted to raise this point for noting.

The Chairperson then noted a concern related specifically to the provision that allowed for the NCC to apply for warrants relating to the Regulation of Interception of Communications Act (RICA). He asked if that issue had been addressed.

Ms Lufundo responded that the State Law Advisers had received no specific instructions to omit that provision, but the reference to RICA could be removed if necessary.

The Chairperson responded that he was not able to envisage how the State Law Advisors would deal with the issue. If the NCC was an applicant in terms of RICA it could apply for a warrant to intercept. This was a structural problem and he asked if the SLA would be able to specifically exclude the NCC.

Mr L Landers (ANC) stated that an unintended consequence of the Bill was that the NCC could conduct interceptions. He would want it stated explicitly that it would be an offence for the NCC to conduct a domestic interception. This created the possibility of intimidation.

Ms Millard remarked that there was currently a prohibition on domestic interception. The fact that the references to RICA had not been removed was an oversight that the State Law Advisers needed to address, as RICA currently had a closed definition of which agencies qualified as applicants. It was also worth noting that there were other bodies excluded from application for warrants in terms of RICA.

The Chairperson stated that there was the perception that interception could only be done with warrants. He pointed out that the Committee had raised the question with Mr Japhta, and had asked specifically if the NCC intended to work with warrants and Mr Japhta had said that it did not. Clarity was needed on the point.

The Chairperson referred to the discussion of the vetting capability in the National Strategic Intelligence Amendment Bill in the closed session. He asked if the members were now clear on that question.

Mr D Bloem (ANC) remarked that as that issue had been discussed in closed session, the clarification should also be done in closed session.

Mr Landers voiced his concern that the NCC was being made a State department. He wondered why this was necessary. In the study of international experiences it was shown that this was generally not the practice. The NCC should be a State asset, not a formalised State department. There should be further consideration on this point, as well as the legal considerations that should apply to the NCC.

Ms M Mentor (ANC) agreed and was of the opinion that it should be a strong statement that the NCC should not be a stand-alone department.

Ms Millard asked the Committee to clarify what their final position was on this issue, as the law advisors would need to make the necessary technical amendments.  If the NCC was not established as a Schedule 1 department, the necessary amendments must be made.

Mr Landers tabled a suggestion that as the meeting did not currently have a quorum, the State Law Advisers (SLA) could draft the amendments with the necessary changes, which could then be put before the House for debate. Depending on the House’s position the changes could then be directly implemented, or not.

The Chairperson queried the definition of “foreign signals intelligence” and noted that there had been criticism regarding its possible unconstitutionality. He asked if the definition had been studied and if the definition of foreign signals intelligence may differ to deal with local scenarios.

Ms Millard responded that the issue had been debated and the definition of foreign intelligence signals had been benchmarked against international experiences. The SLA were currently drafting legislation that would both comply with the Constitution and reference RICA, and that would take account of what the NCC needed to do. The definition had defined parameters in relation to RICA and she doubted that there would be challenges on constitutionality. The prohibitions in the Bill were also prohibitions against domestic interception, and there were also requirements for the Minister to regulate.

Mr Khosa added that the definition provided for the limitations of rights and once this Bill was promulgated into an Act, it would be a law of general application, which would then provide for that kind of limitation.

Ms Mentor queried the extent to which the benchmarking had been done. She did not find the general mention of benchmarking helpful. She wanted details on which countries were used to benchmark, and what their findings were. She was also interested in whether the countries studied had a similar policy direction to South Africa.

The Chairperson commented that the crux of the NCC bills was to define what the NCC could do. Their core mandate was foreign intelligence, but they could get into that in a later session. He concern was that the Bill prohibited interception of communications that fell within the borders. This was very elusive terminology as it was unclear where the borders were. He wondered what ‘borders’ envisaged.

Ms Millard responded that the SLA had a document that set out the borders issue, with reference to different countries, for the sake of information. She said that in the case of those countries that did regulate their signals intelligence capacity, this was a relatively recent phenomenon. The kinds of authorisations required were generally determined by the countries’ domestic constitutional system. For instance, the USA made a distinction between the rights of citizens and foreigners. The South African Constitution did not do that. There was generally a very clear difference between the way countries regulated their domestic interception and the way they regulated their intelligence signals interceptions. There was a conceptual distinction between what the drafters intended, within the context of the Constitution, for the NCC to do, and what RICA contemplated.

Mr Khosa added that the Bill was drawing a conceptual distinction between intelligence priorities and the requirements of RICA.

The Chairperson stated that he did not think his question regarding the definition of borders had been answered. He wanted more detail on where exactly the borders were in the air, at sea and the coastline. He asked if that was something that needed to be defined, as it was left very loose in the legislation.

Ms Mentor queried the extent to which the Committee would labour the issue of border definition, as she considered that perhaps this might not be the appropriate time for a full discussion now, or whether it should merely be identified as an issue for the moment.

Ms Millard responded that the drafters had provided for the definition in  'communication' in terms of RICA. Borders were a descriptive term to clarify what RICA contemplated. It was up to the Committee to say if the cross-referencing was sufficient. In her opinion, there was no need for a definition as it was not defined in RICA.

Protection of Information Bill [B28-2008]: Deliberations
The Chairperson moved to the consideration of the Protection of Information Bill [B28-2008]. He assessed the main concerns that had arisen at the engagement with the Minister. These concerns included the organ of state issue, the public interest clause and the intrinsic value approach.

In regard to the intrinsic value approach, as set out in Clause 8, he wondered if the current formulation was the best wording as the Committee was having problems understanding the language. He deduced that it would also be difficult to understand for those lay people who would actually have to implement it. In essence, it was not consumer friendly. He asked if there was a report-back on the intrinsic value approach formulation.

Ms Xoliswa Mdludlu, Chief State Legal Advisor, Office of the Chief State Legal Advisor, responded that the drafters had tried to make it easier to understand. They had not yet had a chance to discuss this with the Department of Intelligence. When developing user-friendly language, it was important to remember the context. The drafters had taken note of the submissions made at the public hearings and were waiting for clear instructions from the Ad hoc Committee on how to proceed, keeping in mind the issue of national interest.

Ms Millard responded that she was present at the public hearings and had taken note of all the submissions. The drafters were waiting for clear instructions from the Committee as to what they should go back and examine again. There was a range of issues, including the definition of national interest, the public interest exemption clause, the oversight mechanism and the simplification of the limitations and exclusions of the Bill. The drafters, however, needed a clearer indication of the Committee's position to deal with the drafting.

The Chairperson proposed that the Committee consider the intrinsic value approach matter as a work in progress, as long as everyone understood that the problem was that it was too complex in its present form.

Mr Landers added that there was a need to thoroughly understand and debate the intrinsic value approach for simplification.

Mr Landers had three issues to raise on the Protection of Information Bill. The first related to the stage of classification, namely at what stage a document or information could be classified and what were the issues of practicality regarding this. The second issue concerned the espionage offences in Clause 39.. He noted that the international experience differed from country to country. The general feeling was that current formulation did not suffice. He asked what the elements were that defined espionage

Ms Millard responded that the law advisors needed more clarity on what was not captured in the Bill.

Mr Landers raised his concern that the Bill did not address the private intelligence companies. It was the general understanding that this would be addressed in legislation, but private intelligence companies were not mentioned in the Bill. He pointed out that State intelligence agencies were closely monitored by the Department, and were also subject to oversight by Parliament and the courts. Private intelligence companies did not always have the same scrutiny and as a result they did many things that were illegal. He also wanted to know if the intention was that another piece of legislation would be tabled to address private intelligence companies.

Ms Millard replied that private intelligence companies were indeed addressed in the Bill. The main concerns of government were mainly around the use of such companies as fronts for foreign intelligence structures and unlawful access to state information. Information peddling was also a concern, where deliberately false information was passed on to security and intelligence structures. It was worrying that many of the individuals in these companies had relationships with foreign intelligence structure, which were not declared. There was a need to look at the issue of what it was about these private actors that undermined the functions of statutory intelligence structures to the detriment of the State. Furthermore, there was a need also to look at whether the State had a concern about competitive business intelligence structures overtly collecting information to provide strategic support. Their conclusion had been that it was not appropriate for this legislation to regulate that. Their concern was centred on the instances where these companies operated covertly and where they broke the law. The drafters had attempted to criminalise information peddling, as it was destabilising to security structures. One part of addressing this was to register intelligence agents. The Ministry did not expect everyone to register. This was an evidentiary issue, so that if someone was operating in the country (as an agent) and was not registered, that would be an offence if it was discovered. The question was really whether the problem lay with structures or activities. The approach was try to define the activities that posed a problem. It was also difficult to define a private intelligence company.

The Chairperson wanted clarity on the point at which a document became classified.

Ms Millard responded that she noted the point and would look into the processes and procedure outlined in the Bill

The Chairperson raised the issue of seniority in the classifying process, and subsequent access to the classified documents. He asked if officials of a lower status were prohibited from working on a classified document, or whether they could work on them but not be permitted to attend to the classification.

Ms Millard responded that the issue of seniority was a question for review. The issue was more about the content of the information, and the consequence of unauthorised disclosure. She added that the Ministry did not wish the process to be unduly bureaucratic and it could be dealt with further in regulations.

Ms Mentor stated that she agreed with the points made by Mr Landers and suggested that the Committee should assist the legal advisors by giving more details.

Ms Mentor was also of the opinion that the definition of espionage was too vague and that it was even trivialised in the current formulation; it was not made clear that espionage was a grievous intelligence-related crime. She asked the drafter to point to those clauses in the Bill covering private intelligence companies. She was furthermore not satisfied about the total impact of these companies and pointed out that this was detrimental to State security. She suggested that the Committee elaborate on their views on espionage to give the legal advisers clear instruction. She felt that clear directions were needed, to avoid too many further exchanges and to create certainty.

Ms Millard responded that the references to private intelligence companies were in Clauses 40, 43, 45 and 47.  . If the Committee felt that those clauses did not deal with the matter sufficiently, then the legal advisers would need clear instruction on this issue.

Mr Landers referred to the espionage clause, Clause 39, and commented that it would help if espionage was clearly stated as an offence up front, before continuing with the remainder of the clause. He stated that the drafters should be more specific that this constituted a criminal offence.

Ms Millard responded that the drafters would need to look at that, as it was already classified under offences and penalties. She clarified that what the Committee was saying was that the provision for espionage was clumsily drafted. She would consult with the drafters.

The Chairperson referred to the presentation made by the Cape Bar Council. He remarked that he was unclear where the mens rea (state of mind) requirement was. The Members were not happy with the current formulation, feeling that the offence should be clearly set out in detail, and be accompanied by a list of offences and penalties.

Ms Millard clarified that she understood that the Committee had a problem with the drafting of the clause. The items listed in Clause 39 should be linked to the offence, with the intention to advantage another State. If the intent were simply to prejudice the State, this would be defined as a hostile activity, and not as espionage. She sought clarity from the committee on the issues that were not taken into account, for example the breakdown of the penalty. She did think that the mens rea requirement was clearly set out.

The Chairperson responded that the Committee would not like the Courts to have to rule on what was to constitute the mens rea  element of the offence. He felt that the formulation currently was clumsy and he thought it necessary to go back to simple principles of how the crime was defined.

Ms Mdludlu asked if the Committee would prefer a different style of formulation and wanted the crime to be more strongly defined.

The Chairperson reiterated his previous point by noting that he did not even see the word 'unlawful' mentioned, and this was important, as espionage was an offence. He felt that it was necessary to restructure the wording to bring to the fore the elements of the mens rea.

Ms Millard responded that any offence would be regarded as unlawful. She stressed that the mens rea for this offence could be found in performing the actions listed, with the intention to give advantage to another State.  However, it was possible to restructure this in the style of other legislation.

The Chairperson stated that this was important because there might be exemptions if the person performing the unlawful activities did not have the intention at the time of commission. Furthermore he reiterated that the current formulation did not seem to indicate that this was a very serious crime.

Mr Bloem pointed out that there were only three Members sitting in the Committee by this stage. He felt that this needed the attention of the whole Committee. He noted that he had fifteen points that he wished to table, and he would hand a written document containing those points to the State Law Advisers, and get a response at the next meeting.

Mr Landers stated that the Committee accepted that they should make the necessary decisions on the points to be able to pass on the instructions also to the SLA.

The Chairperson accepted the document. He undertook to consult with the SLA and ask them to respond.  He added that private information gathering was very seriously regarded by the JSCI, and one of their recommendations had been to expedite the regulation of private information-gathering activities. and to reduce the risk from information peddlers. There were much broader violations that needed to be covered.

Ms Millard referred to the recommendation that the Directorate of Special Operations should fall under the oversight of the Inspector-General and be coordinated by the coordinator of the National Intelligence Coordinating Committee (NICOC). This was taken forward in the report. Concerns were raised regarding the mandates of the new unit and the collecting of intelligence. The legal advisers needed more clarity from the Committee as to what the drafters should do in relation to private intelligence concerns. Perhaps a more dedicated discussion to assist the drafters was needed.

Mr Bloem agreed that such a thorough discussion was needed.

Mr Landers also agreed, but added that the opposition Members should also be present at that meeting.

Mr S Abram (ANC) agreed and asked the SLA to check the legislation that was currently before the JSCI looking at the future of the National Intelligence Agency (NIA). This was essentially an intelligence issue and therefore fells under the purview of the Committee.

The meeting was adjourned.