Withdrawal of Intelligence Services Amendment Bill; National Strategic Intelligence Amendment Bill; Protection of Information Bill

Meeting report

Deliberations
Ms Kerensa Millard, Head of Legal Services: Ministry of Intelligence, gave a general introduction on the changes made to the three Bills according to the Committee’s instructions at their last meeting. These included amendments to the Schedule as well as the recommended changes to the offences clause, the national interest section and the parts of the Bills pertaining to intrinsic value.

Ms Bongiwe Lufundo, Chief State Law Advisor: Office of the Chief State Law Advisor, reported in detail on the their drafting of the changes requested at the last meeting had been incorporated into the Intelligence Services Amendment Bill. They had made changes to the provision dealing with the establishment of the National Communications Centre (NCC) as a separate department and had provided an option for the NCC not to be a separate department. This entailed removing the amendment to the Public Service Act. They would also omit Part A from the Schedule as that had depended on the NCC being a government department. These were, in effect consequential amendments stemming from the opinion expressed at the last meeting that NCC should not be a government department. The changes that had been effected to all pertinent Acts now fell away. The NCC would not have a separate Director-General, as it was no longer a government department. Item 2 in the Memorandum would remain, as the NCC would still be a member of the Intelligence Services community.

In the Schedule to the Intelligence Services Amendment Bill, Ms Lufundo reported a change to the consequential amendment of the Labour Relations Act. There were no amendments made to the Basic Conditions of Employment Act. They had omitted the references to the Witness Protection Act, the Intelligence Centre Act and the Amendments of Legal Procedure Act. These were all made for the same reason - the NCC was not a department and these would have been the consequential amendments. Furthermore, the NCC could now not have a Director-General and any references to a Director-General also had to be omitted.
 
Ms Xoliswa Mdludlu, Principle State Law Advisor: Office of the Chief State Law Advisor, presented the amendments to the National Strategic Intelligence Amendment Bill. The amendments were contained in clause 2(e) and 2(i).

Mr D Bloem (ANC) asked what would happen to these redrafts.

Mr Landers replied that these were the requested amendments for the option of the NCC not being a government department. The Committee had been given the options they had requested. The drafts were meant to provide options on wording if the NCC should not be a government department.

Ms Millard responded that the Protection of Information Bill document was a consolidation of the amendments that had been considered at the last meeting.

Prof Jonathan Klaaren, Wits Law School: Drafting Team, stated that the redraft looked a bit different to the original version of the Protection of Information Bill. It was simpler in two respects. The first was that instead of using the substance of what was 'classified information' and the consequences of disclosure, they had opted for the term 'classified top secret'. This represented a major change. The second change was that the word 'unlawfully' had been added. This made it clearer that espionage was an offence.

The Chairperson responded that the he could see that the mens rea or intention had been added.

Prof Klaaren responded that there were a range of mens rea attached to the offences of espionage and hostile activity. The other offences were more difficult to classify similarly, and therefore the lower level offences were not represented.

The same structure applied to the redrafts of the espionage and hostile activity offences and the additions made the mens rea clearer. The consequence of a document being 'classified top secret' was that if the information is made available before the classification, it would not come within the terms of the offences clause. There was a small risk in interpretation there, in that it was dependent on the act of classification. This was a timing issue. It was easier to prove that a document had been classified, than having to prove that its content was classified or sensitive. The upshot was that the analysis would happen based on the classification of the information

The proposed public interest offence had its background in the explanatory notes. The document addressed the proposed wording and the concerns regarding the absence of a public interest act. The problem was that, for some of the offences, there could be no public interest. An example was espionage, where the definition was 'to prejudice another state' - public interest was therefore difficult to apply. There was much more scope for a public interest consideration on hostile activities, where the intention was to undermine the state. Disclosure considerations were also applicable as were those of knowing possession of information. The drafters’ proposal was that the definition of “public interest” needed to be adjusted. There was no proper definition of public interest in the Bill. They had the sense that the current definition was pulled from the explanatory notes. It was their assumption that the rest of the Bill would remain the same.

Ms Millard clarified that they had not changed the definition of public interest (from the explanatory notes) and had rather changed the definition of 'national interest'.

The Chairperson expressed satisfaction that the issues of the mens rea and the unlawfulness and the seriousness of the offences had been addressed.

Ms H Mgabadeli (ANC) asked if the drafters were saying that espionage was the same as hostile activity.

Prof Klaaren responded that the two offences were quite similar but the difference between them was whether the spying was for the advantage of another state (espionage) or with the intention to undermine the state (hostile activity).

Ms Millard reported that the documents on private intelligence addressed the concerns about information mongers or peddlars, private intelligence links to foreign intelligence structures. The drafters had expressed the opinion that they did not need to regulate private intelligence as they did state intelligence. Private intelligence had its own regulatory body and also had its own special issues as to weapons and other considerations.
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There was a problem with the definition of private intelligence. It had applications beyond state intelligence. The government was concerned with the unauthorised access to information in a covert manner to prejudice the state (hostile activity) or to benefit another state (espionage). These concerns were captured in clauses 44 and 45. Harbouring or concealing information was captured in clause 46. Providing foreign intelligence structures with covert information was also covered by clause 46. The requirement for intelligence operatives to register in clause 48 was a mechanism to deal with those they were able to catch but there was no way to get all private intelligence operators to register. On the Directorate of Special Operations issues, she added that this fell outside the scope of the legislation.

Mr Bloem disagreed with the views on private intelligence, particularly that it was not necessary to register. He reiterated that they must do something to register them so that they can be under the control of the state.

Mr Landers asked how one could make it illegal to provide false information to foreign intelligence structures. Was the onus not on that structure to deal with the offender and would the state be responsible for this?

The Chairperson responded that they would flag that issue.

Mr Bloem referred to the proposal that there should be registration in clause 48. The Joint Standing Committee on Intelligence (JSCI) review was looking at formally regulating the industry with specific legislation to deal with all aspects. There was a very general treatment in this legislation and it needed to be narrower.

Ms Millard responded that they had identified and defined activities that undermined security. Private intelligence activities had instances where these companies acted as fronts with the intention to harm the state and engaged in unlawful covert collection of information. Disclosure could also be a threat to the state.

Prof Shadrack Gutto, UNISA: Drafting Team, responded that the regulation of foreign intelligence would require research to deal with these issues. This research would have to look at other kinds of foreign intelligence as there were many kinds. It also had to take into account that only a few kinds posed an intelligence threat.

The Chairperson stated that the key issue was a registration of certain people being with certain types of information. This was more a controlling process. If such a person were found out, it would be an offence as the person would not be registered. They would also have to separate out institutions like universities who have this information purely for database purposes. The focus should be on how information is used and abused and how this would be addressed in the Protection of Information Bill.

Adv P Swart (DA) responded that the Bill concerned information in the hands of the state, of value and of a sensitive nature in order to prevent harm to the state. This was similar to firearm regulation where the possession of weapons was regulated. The Firearms Control Act legislation affected the private security industry but did not directly regulate them. The consequence was incidental. It was the same with the Protection of Information Bill and it was as far as they could go with this Bill. They would need another piece of legislation for private intelligence. He agreed with the drafters about not getting into defining information and that it did not fit into this legislation.

Mr Bloem wanted assurance that the private intelligence matter would be addressed, as it was an important and sensitive issue.

Ms Millard responded that policy was reflected in the Bill and that the policy was to deal with activities that undermined the security of the state. Based on the recommendations that private intelligence did not need the same legislation as private security - the question to be asked was: did the Constitution prohibit private intelligence gathering? It did not. The Constitution regulated the manner in which statutory intelligence parties were established. They would have to look at what the effect on private intelligence legislation would be. The problem was that there was no proper definition of intelligence. The legislation defined the mandates of the state bodies and specifically provided for covert collection of such information. Illegitimate intention was a key concern.

The Chairperson noted that the big issue arose when private intelligence companies were used by state agencies or foreign agencies to collect state intelligence. The point to start the discussion on should be: what information the private intelligence companies might or might not collect. There needed to be deeper consultation on this.

Ms Mgabadeli recognised that there was limited consultation on issue of private intelligence and asked to whom they were supplying information and whether this was not the most important issue.

Mr Bloem asked where this private intelligence section would fit in with the rest of the legislation.

The Chairperson responded that they were limited by policy and that one was unable to cover the whole matter in this Bill. It would come down to that type of offence that was of concern. The Committee needed to decide if this approach was appropriate.

Ms Millard referred to the Khampepe Commission that had dealt with the state structures and their mandates. If private intelligence companies dealt with the information that only the state structures were mandated to do, that would be unlawful. They had also debated the decentralization of security structures to provincial level. It was decided that it would be remain at national level and one of the recommendations of the Commission was the regulation of private intelligence. In short, the recommendations went much broader than legislation. Legislation could never be a substitute for state intelligence services to monitor counterintelligence and it might be useful to have a further briefing on the broader issues other than legislation.

The Chairperson queried the extent to which the new Minister had been brought on board.

Ms Millard responded that the Minister had been briefed and there was no move to review anything at this time.

Adv Swart referred to the problem that there was no proper definition of intelligence and suggested that the definition be: “the gathering of information in a covert manner”. All other types of overt information would be just that - information. The ‘covert’ was the issue. He concluded that they needed a proper discussion of what intelligence was and that most of problems with private intelligence were covered by the offences section of the Protection of Information Bill.

Mr Landers responded that the debate would need a lot more time and that it was impractical in terms of the time available in this term. He wondered if this issue should be flagged in order to obtain the inputs of other affected parties.

The Chairperson agreed that it was a matter that had to be exhausted. Taking into account their ability and time, the issue was flagged but not closed.

Mr Landers asked the drafters to look at the relevant sections of the Constitution that were applicable - such as freedom of expression, privacy and access to information. He remarked that they were treading on very thin ice and that a rush would lead to serious concerns.

Mr Bloem agreed and added that he did not understand from where the issue of the definition of intelligence came as it was his understanding that it was defined.

Mr I Vadi (ANC) remarked that the definition issue was going to create serious problems, as there was no qualification that the information should be covert.

Mr Landers asked if they should proceed any further with these Bills. He felt that the rushed process presented a problem. He expressed his opinion that he needed more time and wondered if they could address these issues in the time that was left.

The Chairperson responded that their concerns were of such a magnitude, that the Committee might not finish as they did not have sufficient time to deliberate.

Mr Swart suggested that for the purposes of discussion they should separate the three Bills. They had already discussed the possibility of further hearings and there was now the real possibility of not finishing, as they were seriously stretched for time. He suggested that they separate the Protection of Information Bill from the process so that they might be able to finish the other two.

The Chairperson asked to hear the members’ views on all three Bills and insisted that all members comment.

Mr Vadi responded that they were not ready to process the Protection of Information Bill. Further investigation was needed there and they were unable to do this due to time constraints. He had initially thought that they could finish the policy implications with the Department on the other two Bills. The key question was what kind of communication system they wanted. It was envisaged that the NCC would have been a full department and it begged the question of how best to order the communications system. Communications Security (Com Sec) was already partially privatised. Internationally, in Norway and Sweden, they had one integrated system of collecting information which covered all dimensions of intelligence. There was a bifurcated structure in South Africa. He wondered if that was in the national interest. This was a policy matter and he was not convinced that they had dealt with it fully. He concluded that he leaned towards not processing any of Bills at this time as well.

Mr S Abram (ANC) stated that he was supportive of the proposal. The legislation would be passed in an environment where there was insufficient time. The Committee needed to take all that into account, apply their minds and there was not enough time to do that. They were in the final throes of the parliamentary term and this was not in the interests of good legislation making. There were tremendous implications attached to the new structure and he did not think that the intelligence dispensation in South Africa was the right one.

Mr Bloem sought clarity on the fifteen points of concern he had submitted at the last meeting and queried what was happening to that document.

The Chairperson asked the Committee to focus on the question at hand, as to whether the process should be abandoned.

Mr Landers responded that those fifteen points would not disappear. The implication was that the Bills would be withdrawn and it would be up to the Minister to decide whether or not to table the Bills in the next term. The three Bills would also not disappear. He agreed with Mr Bloem on the Protection of Information Bill and his concerns about the NCC and added that these concerns were shared by the JSCI. He made a general comment that there were weaknesses in any government where a new minister is appointed and wanted to put their stamp on their work. Under Minister Sisulu, the JSCI had been informed that Com.Sec would have a corporate structure, making it a state enterprise in a corporate cloak. Minister Kasrils changed that and wanted Com.Sec under the NCC which required amending legislation. He had wanted to raise this with Minister Kasrils but circumstances prevented this. A comparative study of other countries would reveal that the NCC should not be a state department. He added that he wanted to be able to defend his work as an elected public representative.

Mr Bloem supported Mr Landers’ proposal

Ms D Smuts (DA) agreed and raised concern about whether it was the de facto situation that it was the Minister’s prerogative to target the NCC. The origins of this issue were problematic. Com Sec and the capacity of the National Intelligence Agency were issues over and above the NCC. The issues had not yet been dealt with. She asked if this had been properly addressed.

Mr Landers responded that this had not been addressed in the processing of the Bills. All state departments and entities were involved. He agreed that it would take a while.

The Chairperson asked the Committee for their views on the way forward.

Mr Landers responded that they should request the Minister to withdraw the Bills. This was certainly not the end of the Bills. The Bills could then be tabled in the new Parliament. The Ad Hoc Committee’s Report to the House should recommend that the three Bills be withdrawn.

The Chairperson replied that the correct procedure was that they should formulate a resolution to the House.

Mr Bloem agreed that they should table the resolution formally in the Committee.

At this point, a break was called for the Committee to draft the resolution that would go to the House.

After the Committee reconvened, the Chairperson thanked the drafters for their efforts. He stated that some of the issues which had been raised would give the Bills greater substance and greater applicability. Perhaps these adjustments would come into effect in the next Parliament. The work the drafters had done would also be captured and discussed in the JSCI and had laid the foundation for a very serious and necessary piece of legislation. In terms of the Protection of Information Bill, attention has been drawn to the fact that the NCC, with all its policy complications, needed some rethinking. It was “desperate” that they get it right. It was a constitutional as well as an international issue. This was a very valuable piece of equipment and a very valuable institution.

Mr Landers read the resolution of the Committee: After due consideration of the Protection of Information Bill [B28-2008], the National Strategic Intelligence Amendment Bill [B38-2008] and the Intelligence Services Amendment Bill [B37-2008], the Ad Hoc Committee is unable to process these Bills because of the inadequate time at its disposal, given the complex nature of these Bills and the serious problems raised during the public hearings stage. The Ad Hoc Committee therefore recommends that the Minister of Intelligence withdraws the three Bills, following the adoption by the Ad hoc Committee of the Ad hoc Committee’s reports to Parliament on these Bills.

Mr Swart agreed with the resolution. He suggested that Parliament could not instruct the Executive, rather they could strongly recommend that the Minister reintroduce the Bills at the commencement of the next Parliament.

Mr Abram felt that they should leave the resolution as proposed. He stated that one anticipated that the Minister would stand by what was proposed.

Mr Swart clarified that it was a question, not a suggestion.

Mr Bloem commented that he agreed with Mr Swart but they could not instruct the Minister to reintroduce the Bills. He agreed that the original proposal as read by Mr Landers should stand.

Mr Bloem moved for the adoption of the resolution and was seconded by Mr Swart.

Mr Swart asked that the report of the Committee make mention of the fact that legislation of this nature was a necessity.

Mr Landers suggested that they mandate the Chairperson to draft the report of the Committee. It was decided that the Committee should reconvene on 21 October to formally adopt the report.

The meeting was adjourned.