Minister of State Security 15 May 2013

NATIONAL COUNCIL OF PROVINCES: AD-HOC COMMITTEE :GENERAL INTELLIGENCE LAWS AMENDMENT BILL B6B-2011 Minister of State Security 15 May 2013

SCOPE OF THE PRESENTATION • Introduction • Objects of the Bill • Intelligence Dispensation • Review the Intelligence Dispensation • Threats confronting the country and nation • Approach towards reviewing the Intelligence Dispensation • Proposed Legislative Amendments • Conclusion

INTRODUCTION The objective of the review process is the following: • To provide a comprehensive legislative framework for a new intelligence dispensation leading to the 2014 review of the Intelligence Architecture • To give legislative effect to the Presidential Proclamation R59 of 2009 whose intention is to create a single seamless department • Thus presenting GILAB which intends to make technical amendments to existing legislation • Matters of policy change will be effected through wider consultation to eventually introduce the SSA bill

REVIEW OF THE SECURITY ENVIRONMENT • A National Interest Doctrine has been produced and presented to Cabinet • We are in the concluding phase of the production of the National Security Strategy • The National Cyber Security Framework has been approved by Cabinet • Defence Review • The White Paper on Safety and Security is being reviewed • There will be a Review of the White Paper on Intelligence culminating in a comprehensive legislation for the Civilian Intelligence of the country

GILAB: OBJECTS OF THE BILL • GILAB is a technical Bill • It gives effect to the Presidential Proclamation R59 OF 2009 • It provides for a single DG who is the accounting officer and centralises command and control in the office of the DG • Consolidates the previous structures, NIA, SASS & SANAI, while maintaining the separate functional mandates of the Domestic and Foreign Branches • Transfers the training mandate to the Agency to integrate with core business. • Centralises corporate services thus doing away with duplication and refocus its mandate to include recruitment as a CI function • Arrest proliferation of Intelligence structures

GILAB: OBJECTS OF THE BILL • To centralises executive management services that will standardise norms throughout the Agency.

NEED TO REVIEW THE INTELLIGENCE ARCHITECTURE • A comprehensive review was undertaken of inter-ministerial team comprising Ministers of State Security, Police and Defence and Military Veterans which highlighted three main concerns: • Proliferation of statutory structures within the civilian intelligence community has led to an absence of sufficient coordination, overlapping mandates, unnecessary turf-battles, insufficient focus and wasteful duplication; • Each structure had its own respective Corporate Services component with the net result that significant funding was directed to corporate support at the expense of operations and technical support. • Despite legislative requirement for coordination at strategic and operational levels, there was an absence of information-sharing and co-operation amongst the civilian intelligence structures which posed a security risk. • The structures were drifting apart leading to increased vulnerability.

JUDICAL OVERSIGHT PARLIAMENTARY OVERSIGHT JOINT STANDING COURTS COMMITTEE ON INTELLIGENCE ACT 40/94 JUDGES OF HIGH COURTS INSPECTOR GENERAL AUDITOR GENERAL PUBLIC PROTECTOR JUDICAL APPROVAL FOR OPERATIONS (127’s) HUMAN RIGHTS COMMISSION PUBLIC INTELLIGENCE ARCHITECTURE (Prior 2009) EXECUTIVE OVERSIGHT PRESIDENT CABINET CABINET COMMITTEES DG CLUSTER MINISTER ACT 39/94 ACT 65/2002 NICOC ISC SANAI NIA SASS COMSEC OIC NCC Act 68/2002 Act 70/2002

JUDICAL OVERSIGHT PARLIAMENTARY OVERSIGHT JOINT STANDING COURTS COMMITTEE ON INTELLIGENCE ACT 40/94 JUDGES OF HIGH COURTS INSPECTOR GENERAL AUDITOR-GENERAL PUBLIC PROTECTOR JUDICAL APPROVAL FOR OPERATIONS (127’s) HUMAN RIGHTS COMMISSION PUBLIC INTELLIGENCE ARCHITECTURE (Proposed) EXECUTIVE OVERSIGHT PRESIDENT CABINET CABINET CABINET COMMITTEES DG CLUSTER MINISTER ACT 39/94 ICCS ACT 65/2002 NICOC SSA NCC Academy Domestic Foreign General Intelligence Laws Amendment Bill

THREATS CONFRONTING THE COUNTRY AND THE NATION Threats point to a changed operational environment, which requires: • Intelligence structures to remain relevant, agile and responsive; • Establishment of the Border Management Agency and Dual Use Technology • A National Security Strategy and White Paper on Intelligence which would lead to security laws that would comprehensively address these issues.

THREATS CONFRONTING THE COUNTRY AND THE NATION Threats to STABILITY, CONSTITUTIONAL ORDER and STATE INSTITUTIONS Threats to WELL-BEING, DEVELOPMENT & UPLIFTMENT of our PEOPLE Threats to SUSTAINABLE GROWTH & ECONOMY

APPROACH TO REVIEW LEGISLATION Pressing need to ensure that the service delivery mandate of the intelligence service is not compromised by the existence of a lacuna in the legislation • Current laws do not adequately provide for the restructured Civilian Intelligence Institution, State Security Agency • Given the nature and scope of the work of intelligence, the country cannot afford to continue to operate under a weakened legislative framework Ongoing work on the development of the National Security Strategy, review of the Intelligence White Paper and definition of national interest of the Republic will result in a clear legislative programme.

PROCESS TO REVIEW LEGISLATIVE FRAMEWORK Intended policy amendments : Introduction of White Paper Introduction of National Security Strategy Introduction of National Interests Doctrine Introduction of New Legislation: National State Security Bill National Strategic Intelligence Act, No. 39 of 1994 Intelligence Services Act, No. 65 of 2002 Proclamation R59 of 2009 Establishment of the SSA Introduction of the General Intelligence Laws Amendment Bill Electronic Communications Security Act, no 68 of 2002 Functions of SSA components codified and promulgated Intelligence Oversight Act, No. 40 of 1994 1994 2002 2009 2011 2012 2014

PROPOSED LEGISLATIVE AMENDMENTS • The Bill does not introduce policy changes, but seeks to: • Repeal the Electronic Communications Security (Pty) Ltd (COMSEC) • Import the functions of COMSEC to the State Security Agency • Exempt the Agency from any licencing requirements contemplated in the Broadcasting Act, 1999 (Act No.4 of 1999) and the Electronic Communications Act, 2005 (Act No. 36 of 2005) – this provision is imported from the COMSEC Act. • Amend the following laws where reference to the amalgamated structures are substituted with references to the State Security Agency the Agency:

NATIONAL STRATEGIC INTELLIGENCE ACT AMENDMENTS

NATIONAL STRATEGIC INTELLIGENCE ACT AMENDMENTS • Changes envisaged are ensuring that provisions of the Act continue to delineate mandates, roles and functions of the National Intelligence Structures. • Names of structures are amended without implications for the Agency.

NATIONAL STRATEGIC INTELLIGENCE ACT AMENDMENTS • The Bill has the following implications regarding the external vetting mandate of the Agency : • Bill provides that the DG may in writing delegate the authority previously vested in him to issue, degrade, withdraw or refuse to grant a security clearance after evaluating the information gathered during the vetting investigation to other members, • Departments of State may at the request of the Agency establish vetting field work units that may, on request of the Agency assist the Agency to gather information relating to, criminal records, financial records, personal information and any other information which is relevant to determine the security clearance of a person.

NATIONAL STRATEGIC INTELLIGENCE ACT AMENDMENTS • Concerning access to information by the Agency and the cooperation between the National Intelligence Structures, the Bill provides for the following: • Notwithstanding any law to the contrary, no department of State or statutory body shall withhold information in its possession or under its control from the Agency when such information is reasonably required for any investigation in terms of its mandate regarding domestic-, foreign- and counter-intelligence; • Shall be the duty of any of the members of the National Intelligence Structures to immediately transfer any intelligence in its possession that is required by another member of the National Intelligence Structures for the fulfilment of its statutory functions.

NATIONAL STRATEGIC INTELLIGENCE ACT AMENDMENTS • In addition to the Co-ordinator, DG of SSA and head of the intelligence division of SAPS, the Bill provides that the NICOC will also comprise of the following • the head of the domestic division of the Agency, • the head of the foreign division of the Agency, and • the chief of the intelligence division of the National Defence Force

INTELLIGENCE SERVICES OVERSIGHT ACT AMENDMENTS

INTELLIGENCE SERVICES OVERSIGHT ACT AMENDMENTS • No substantive amendments to this Act; • All envisaged changes seek to substitute the amalgamated structures that comprise the Agency (In the main, ‘Intelligence Services Entities’ are substituted by ‘the Office’; ‘intelligence services’ by ‘State Security Agency’); • Deals with the deletion of names such as SASS and COMSEC and the amendment of names as to change Agency to the State Security Agency; • Does not contain any further amendments concerning the provisions of the Act and does not have any new implications for the Agency.

INTELLIGENCE SERVICES ACTAMENDMENTS

INTELLIGENCE SERVICES ACTAMENDMENTS • Amalgamation of NIA, SASS, SANAI and COMSEC functions • By deleting references to the above structures, the Bill thus gives the State Security Agency continued existence • Deletes names such as SASS and COMSEC and replace such with State Security Agency • Changes Agency to State Security Agency • With regard to composition, Minister is empowered to: • create posts at the equivalent of Deputy Director-General • establish branches, chief directorates, directorates with corresponding functions and post structures. • In terms of delegated authority, the DG establishes divisions, components with corresponding functions and post structures. • Training Fund for SANAI becomes a Training Fund for the Agency and this will be administered by the DG.

INTELLIGENCE SERVICES ACTAMENDMENTS • Functions of DG currently refer to ‘the Director-General or the CEO. This changes to refer only to ‘the Director-General’ as all relevant functions will be attached to a single post requiring a single accounting officer. • An additional reporting channel is provided for the DG: • At the end of each financial year, a report is to be submitted to the Minister on cooperation with authorities of another country; • Except for classified information, the report must be publicly accessible; • Minister is to table the report in Parliament. • Ministerial approval24 for the erection and maintenance of buildings will be delegated to the DG in the Bill. ‹#›

INTELLIGENCE SERVICES ACTAMENDMENTS • Retirement age is lowered to 55 in line with the Public Services Act. • A member will be deemed to be discharged if absent without permission of DG for a period of 10 consecutive working days rather than exceeding 14 consecutive days as provided for in the current Act. • Intelligence Services Council on Conditions of Service change of name to the “Intelligence Council on Conditions of Service” • Council consists of not more than three persons or members appointed on contract by the Minister • One must be the Chairperson • In future no member will form part of the Council anymore as it will consists of not more than three persons appointed on contract • All medals awarded by the SSA must be registered with the Bureau of Heraldry in terms of the Heraldry Act, 1962

INTELLIGENCE SERVICES ACTAMENDMENTS • New Regulations will have to be issued for: • Establishment, structure and functions of a civilian intelligence veterans association • Election, representation and functions of the staff forum • Supply of departmental intelligence to government departments • Persons authorized to task the Agency to gather and produce intelligence

INTELLIGENCE SERVICES ACTAMENDMENTS • All assets, liabilities, rights and duties including funds, resources and administrative records of NIA, SASS, Academy and COMSEC must be transferred to SSA within six months after commencement of the Amendment Act. • The assets vest in the SSA from the date of transferral and will be regarded as having been acquired or incurred by the SSA. • COMSEC will cease to exist as a juristic person on the date determined by the Minister: • For purposes of Companies Act, 2008, it will be regarded as wound up • Companies and Intellectual Property Commission must, upon receipt of a notification by DG deregister the COMSEC as a company in terms of the Companies Act from the date indicated. • No notice or filing fee or other charge will be payable in respect of the deregistration of COMSEC

INTELLIGENCE SERVICES ACTAMENDMENTS • A registrar of deeds must, upon the production to him or her of a certificate by the Minister that immovable property described in the certificate vests in the SSA, in terms of paragraph 9 above, makes such entries and endorsements as he or she may deem necessary in or on any relevant register, title deed or other document in his or her office, so as to give effect to above. A duty, office fee or other charge will not be payable in respect of any entry or endorsement. • If an inquiry into alleged misconduct has been instituted by any of the current components, but not yet concluded at the commencement of the Amendment Act, such proceedings must be continued and concluded in accordance with the law in terms of which the inquiry was instituted.

INTELLIGENCE SERVICES ACTAMENDMENTS • Disciplinary proceedings may be instituted and concluded in terms of the Intelligence Services Act • Against alleged improper conduct of any person who at any time prior to the commencement of the Amendment Act, was in the service of any of the current components • Provided that the act or omission concerned is substantially the same as an act constituting misconduct in terms of the Intelligence Services Act. • Any employee of COMSEC, appointed in terms of section 14(1) of the COMSEC Act, must be transferred to the SSA • Terms and conditions may not be less favourable than the remuneration and terms and conditions applicable to that person immediately before his or her transfer and he or she remains entitled to all rights, benefits, including pension benefits, and privileges to which he or she was entitled immediately before such transfer

INTEGRATION OF SANAI

AMENDMENTS AFFECTING SANAI • Transfers the training mandate to the State Security Agency to integrate with core business • Clause 17 provides for the establishment of a Training Fund for the Agency. • Such Training Fund must be administered by the DG • The accreditation and recognition of the Agency’s qualifications must be done in accordance with the provisions of the National Qualifications Framework Act, 2008 (Act No. 67 of 2008)

CONCLUSION

CONCLUSION • Amending the current pieces of intelligence legislation through the General Intelligence Laws Amendment Bill is the most effective approach to: • Establish the sound legal footing for the intelligence dispensation that is geared for the dynamic and evolving challenges of the 21st Century; • Restructuring the intelligence architecture under the State Security Agency while providing the necessary legal basis to ensure stability and clarity on service delivery mandate. • Provide legislative certainty for the administration and oversight of the civilian intelligence structures • Provide for the tabling of a single financial statement for the State Security Agency and the amalgamated structures • Restructuring of intelligence architecture is one of the priorities in the period leading to 2014 in order to: • ensure that the country has an intelligence service that is in line with the provisions of the Constitution. • address the challenges of duplication, providing focus on core business and maximizing productivity whilst maintaining well-motivated, agile and focused personnel.

THANK YOU

Minister of State Security 15 May 2013