Astronomy Geographic Advantage Bill [B17-2007]: Department Response to submissions

Meeting report

SCIENCE AND TECHNOLOGY PORTFOLIO COMMITTEE
21 August 2007
ASTRONOMY GEOGRAPHIC ADVANTAGE BILL: DEPARTMENT RESPONSE TO SUBMISSIONS
 
Chairperson: Mr ENN Ngcobo (ANC)

Documents handed out:
DST Response to Submissions on AGA Bill
Astronomy Geographic Advantage Bill [B17-2007]

Audio recording of meeting

SUMMARY
The Director-General from the Department of Science and Technology briefed the Committee on its response to the public hearings on the Astronomy Geographic Advantage Bill held on 31 July and 1 August 2007.  Four key issues were identified – consultation with stakeholders, the role of the Independent Communications Authority of South Africa, compensation and specific words, phrases and definitions used in the Bill.  The Department had addressed these issues by holding a stakeholder forum on 17 August and appointing a Regulatory Advisory Committee and had identified the sections in the Bill that required redefinition, amendment or omission.

Members of the Committee were particularly concerned about the lack of clarity around the role of ICASA and the possibility of conflicts of interest between ICASA and the Ministers of Communication and Science and Technology.  It was agreed that the Department and the State Law Adviser work together to address the details of the Bill.

MINUTES
Department of Science and Technology (DST) response to public submissions
Mr Philemon Mjwara (Director-General, DST) introduced the delegation from the Department of Science and Technology (DST) and presented an outline of the briefing to the committee (see attached document).  The key issues raised at the public hearings on the Astronomy Geographic Advantage (AGA) Bill included consultation with stakeholders and other interested parties, matters related to the Independent Communications Authority of South Africa (ICASA) and compensation arising from changed technology requirements.

The Department had held a stakeholder forum and a Regulatory Advisory Committee (RAC) had been formed.  Stakeholders represented on the RAC included the South African Astronomical Observatory (SAAO), the Department of Communication (DOC), the Civil Aviation Authority (CAA), the National Association of Broadcasters (NAB), the Northern Cape Provincial Government, Vodacom, TransNet, Eskom, Telkom. MTN, Neotel, ICASA and the Square Kilometre Array (SKA) Project.  The DST would chair the meetings.

The DST, ICASA and SKA co-coordinating committee agreed to explore ways of implementing a moratorium on new radio communications transactions, to continue with Radio Frequency Interference measurements and to participate in the RAC.

Mr Tshepo Seekoe (Chief Director, Radio Astronomy Advances, DST) briefed the Committee on the first stakeholder forum meeting that was held on 17 August 2007.  The SKA Project gave a presentation on the case studies that were already completed and affected stakeholders were invited to contact the South African SKA Project office to explore possible technological solutions.  The first meeting of the RAC was scheduled for the end of September 2007 and the next forum meeting date will be determined then.  Specific amendments to the AGA Bill were discussed.

Mr Puseletso Loselo (Head – Legal Services, DST) briefed the Committee on the detailed recommendations and proposed amendments to the AGA Bill (see slides 7 to 27 of the document).

Discussion
Mr Ngcobo asked if compromises had been reached with stakeholders where there were disagreements and whether there were any further unresolved issues.

Mr Loselo replied that compromises had been reached on some issues but there were certain matters that still needed to be resolved before the final version of the Bill was presented.

Mr S Dithebe (ANC) thanked the DST for its comprehensive presentation.  He noted the innovative attempts that were made to deal with the concerns of the Members and stakeholders that had been raised in previous Committee meetings.  He was however concerned by the envisaged role of ICASA and the potential for conflict of interests between ICASA and the Ministers of Science and Technology and Communication.  He mentioned that ICASA was under review by the Ad Hoc Committee on the Review of Chapter 9 Institutions and that its original mandate may be changed, resulting in possible future constitutional challenges to the Bill.  Although he appreciated the good intentions of forming a body of stakeholders, he wondered if this was not going too far with consultation and questioned the legality of involving such bodies in the formulation of regulations.

Mr PNefolovhodwe (AZAPO) remarked on the provision for compensation to operators for the loss of infrastructure when the Bill comes into effect (Sections 22, 23 and 27).  He wanted to know if operators would be able to claim compensation for any future operations.

Prof I Mohamed (ANC) asked if any concessions were made that could be detrimental to South Africa’s ability to be competitive in the bid for the SKA telescope.

Mr Ngcobo asked for clarification of the provisions related to consultation in Sections 41 and 42 of the Bill.

Mr Loselo explained that in terms of Section 42, the Minister must publish a notice of intention to designate an area as an Astronomy Advantage Area.  Although the consultation process to be followed was not prescribed, Section 41 was in any event subject to Section 42, which allows for public consultation.

In response to Mr Dithebe’s questions, Mr Loselo agreed that the matter of concurrence between ICASA and the Minister of Communications needed to be looked at in more detail.  He said that although the stakeholder forum provided expert input at the initial stages, the final decision rested with the DST.  The Bill would still have to be published for comment and by involving the stakeholders, the process was actually speeded up.

In response to Mr Nefolovhodwe’s question, Mr Loselo explained that once an astrological advantage area was declared, certain activities were prohibited within that area.  It was therefore not possible that further operations could take place for which an operator could claim compensation.

In response to Prof Mohamed’s question, Mr Loselo said that any technical concessions made, would not affect the success of the bid.

Mr Nefolovhodwe requested that the Department meet with the State Law Advisor and thoroughly investigate the functions of ICASA and the Minister to ensure that there would be no conflicts of interest and no possibility of future legal challenges.

Mr Ngcobo said that where there were conflicts of interest between (for example) the Ministers of Science and Technology and Communications, they would consult with each other to find a solution within the applicable regulations.  As the body with the constitutional mandate to oversee this, ICASA was required to concur with the responsible Minister.  He suggested that the wording in the Bill was changed from “and” to “and/or” and asked the State Law Advisor to comment.

Ms Xoliswa Mdludlu (State Law Adviser, Department of Justice) said that the Department had to consult with affected parties where there was a need and had to obtain concurrence where there were conflicts of interest.  If there were unintended conflict of interests, the Bill allowed for consultation and discussion in order to reach a compromise.  She said that the AGA Bill sought to protect an advantage area and did not seek to regulate broadcasting.  In terms of the Constitution, ICASA was responsible to protect broadcasting in the public interest and was not concerned with other matters.

Mr S Farrow (DA) was concerned over the use of the word ‘concurrence’ in a situation where the Minister had sole discretion and authority to act within the designated area but ICASA was required to allocate radio frequencies across the whole country.  He suggested that more thought was given to the terminology used to ensure that there were no future legal challenges on this point.  It may also be necessary to withdraw the advantage area from the function of ICASA, which will require a constitutional amendment.  He remarked that the concerns raised by the NAB in its submission at the public hearings highlighted these concerns.

Mr JPI Blanche (DA) suggested that the opinion and approval of affected constituted bodies were obtained before the changes become law.

Mr Farrow added that a possible solution for the removal of the declared area from the jurisdiction of ICASA could be a proportional withdrawal of the allocated frequencies, which would then fall under another jurisdiction.

Mr Dithebe pointed out that all the laws that were passed, went through an exhaustive process and provided that the constitutional validity of a Bill was not challenged, it was presumed to be not in conflict with the Constitution.  He said that it was not possible to foresee all future challenges and suggested that the process be duly followed and that the DST was allowed to take care of the details.

Dr Bernie Fanaroff (SKA Project Director, SASPO) agreed that the DST and the State Law Adviser work out the details of the Bill.

Mr Phatang Nkhereanye (Regulatory Affairs, Neotel) said that where the Minister of Communications issued policy directives and acted within her powers, ICASA would issue regulations in accordance with the policy directives.  However, should the Minister act outside the scope of her powers, ICASA may issue regulations that were in contradiction of the policy directive.  He suggested that in cases where executive concurrence was reached on the management of the radio frequency spectrum within the astronomical advantage area, the Minister of Communications issued policy directives to ICASA.

Mr Ngcobo said Mr Nkhereanye’s input clarified the interaction between the Minister of Communication and ICASA.
Mr Johan Smit (Senior Specialist, Regulatory and Public Policy, Telkom) reported that the additional input from Telkom that was requested by the Committee at the public hearings held on 1 August 2007 had been sent to the Committee Secretary on the previous day. He requested that a copy was forwarded to the State Law Adviser

Mr Ngcobo acknowledged receipt of the documents and said that copies will be sent to all interested parties.  He thanked the presenters for their input and the stakeholders for their cooperation.

The meeting was adjourned.