Presentation to Portfolio Committee on Safety and Security

1. Presentation to Portfolio Committee on Safety and Security Pierre van Wyk SA Law Reform Commission

2. OVERVIEW • PROCESS (from request to investigate until introduction Parliament) • Is there a need for legislation? • Definition on terrorist act • Specific offences • Bail • Power to stop & search • Investigative hearings • Declaration of terrorist organisations • Measures to combat financing of terrorism

3. Need for legislation • The Commission noted in its report p 569 that numerous respondents argued in response to its discussion paper that the existing legislation should be applied or amended instead of adopting a comprehensive statute. • The Commission pointed out that there are shortcomings in the existing legislation, and that definite measures need to be adopted in order to comply with the conventions dealing with terrorism. Offences need to be created addressing the hijacking of aircraft, interference with ships, terrorist bombings, hostage taking, the protection of internationally protected persons, interference with fixed platforms, nuclear matter, and the financing of terrorism. The conventions also require that extended criminal jurisdiction required by these conventions be provided for. • The Commission recommended that one piece of legislation, a so-called omnibus Act be adopted.

4. PROCESS • 1995 request by Minister of Safety and Security that Commission conduct a review rationalisation SA security legislation • First investigation interception communications finalised Aug 1999 • SAPS (requesting client) submitted draft document to Commission in Oct 1999 Further research commenced • Feb & April 2000 Project committee meetings on draft discussion paper • June 2000 approval working committee • Media conference, publication discussion paper for general info comment Aug 2000 • Distributed disc paper to more than 500 individuals, posted Website • Sept 2001 resulted in legislative measures adopted UK New Zealand Australia Canada Mauritius India Gambia Nigeria etc • Commission finalised report for submission Minister Aug 2002 • Aug 2002 media conferences Cape Town & Johannesburg • Cabinet Approval introduction draft legislation Nov 2002

5. Definitions • Terrorist act • The Commission proposed a definition which was originally based on the Algiers Convention but then amended to include aspects of Canadian and Australian legislation. It is suggested that this definition could form a basis for deliberating a suitable definition. • Commission report explains on page 590 that it was considered whether acts which are not to be regarded as terrorist acts should be set out in the definition as was done in article 3 of the Algiers Convention. It was stated that these acts would be exclusions from or a proviso to the definition of terrorist act and would include armed acts pursuant to a struggle for self-liberation or self-determination according to the principles of international law. It was pointed out that the Bill contained an interpretation clause whereby the definition has to be interpreted in accordance with the principle of international law, in order not to derogate from those principles, one of which is the OAU Convention on Terrorism. It was therefore considered that this provision was sufficient to exclude al acts “that have the blessing of international law”. • The OAU exclusion provision provides that the struggle waged by peoples in accordance with principles of international law for their liberation or self-determination, including armed struggle against colonialism, occupation, aggression and domination by foreign forces shall not be considered as terrorist acts. It also provides that political, philosophical, ideological, racial, ethnic, religious or other motives shall not be a justifiable defence against a terrorist act.

6. Specific Offences • The Commission recommended that those specific offences created by the conventions dealing with terrorism, should be included as separate offences in the Bill. Consideration should therefore be given to including specific convention offences into Bill such as • the hijacking of aircraft; • interference with ships; • terrorist bombings; • hostage taking; • the protection of internationally protected persons; • interference with fixed platforms; • nuclear matter or facilities; and • the financing of terrorism.

7. Bail • The Bill provides that all offences under the Bill should be subject to the procedure of Schedule 6 of the CPA and that the detained should demonstrate special circumstances to be released on bail. • The hearings indicate that it might be more appropriate to include only terrorist offences (a properly defined terrorist act) which really warrant the Schedule 6 of the CPA bail procedure into that Schedule.

8. Power to stop & search • Warrant is issued by a judge on application ex parte by a police officer of or above the rank of director if it appears necessary to the judge to prevent terrorist acts for the stopping and searching of vehicles and persons. The warrant applies for a period not exceeding 10 days. • This provision was included to overcome the limitation posed by the SA Police Service Act in terms of which a place can be cordoned-off for a period of 24 hours. • It was noted during the past week that this power granted under the Bill should be reconsidered. In terms of the CPA the action can be taken without a warrant having been issued. • The question was raised whether this provision limits the existing CPA powers.

9. Investigative hearings • Police officer may, for the purpose of investigating an offence, apply ex parte to a judge for an order for gathering of information. • Judge may make an order if there are reasonable grounds to believe that • an offence under the Bill has been committed; • material information concerning the offence, or information that may reveal the whereabouts of a person suspected by the police of having committed the offence, is likely to be obtained as a result of the order; • all other reasonably possible avenues for obtaining the information have been tried without success.

10. Investigative hearings: warrant for arrest • Judge may issue warrant for person named in order for gathering information if judge is satisfied on information in writing and under oath, that the person • Is evading service of the order; • Is about to abscond; or • Did not attend the examination, or did not remain in attendance, as required by the order.

11. Issues on investigative hearings • The question was raised whether persons detained are subjected to indefinite detention. It would seem that provision should be made for limiting this detention period before an appearance at the envisaged investigative hearing. • Concern was raised about right to silence. Sec 205 CPA and sec 28 NPA contain similar provisions whereby witnesses are not entitled to refuse to answer questions put to them.

12. Do other jurisdictions have investigative hearings? • Canada: investigative hearings • Australia: collection of intelligence

13. Canada • Explained in Canada that the key focus of their anti-terrorism strategy is to prevent terrorist incidents by providing necessary tools to police, prosecutors & courts. • Investigative hearing provisions allow police officer, for purposes of an investigation of a terrorism offence, to apply ex parte to a judge for an order to gather information relevant to that investigation. • Authorizes judge to order examination of a material witness who may possess information regarding a terrorist offence that has been or may be committed. • Witnesses are protected from their statements being used in any criminal proceedings against them. • Procedure has parallels in Canadian mutual legal assistance legislation.

14. Investigative hearings Canada • Attorney General is required under Criminal Code prepare & present to Parliament annual report on the operation of sections which provide for investigative hearings. • These annual reports must not contain any information the disclosure of which would compromise or hinder an ongoing investigation of an offence under an Act of Parliament. The reports must also not release information that would endanger the life or safety of any person, prejudice a legal proceeding or otherwise be contrary to the public interest. • Code contains a "sunset" clause whereby these powers shall cease to apply after December 31, 2006, unless the application of the relevant sections is extended. • From December 24, 2001, to December 24, 2002, both the Royal Canadian Mounted Police and the Department of Justice (Federal Prosecution Service) report that there were no applications initiated under these sections of the Criminal Code. As such, there are no data to report in relation to the reporting requirements concerning the investigative hearing provisions. It was explained that the fact that these provisions were not used by the RCMP or federal prosecutors in the first year of their existence illustrates that these measures are not being abused and that these agencies are proceeding cautiously in using these powers.

15. Investigative hearings Canada • The annual must contain data on • Number of consents to make an application that were sought, and number that were obtained; • Number of orders for the gathering of information that were made; • Number of arrests that were made with a warrant issued.

16. Australia • The Australian Security Intelligence Organisation Legislation (Amendment) Terrorism Bill 2002 was passed recently. • The Bill will give ASIO the power to detain and question people believed to have information about planned terrorist attacks.

17. Australia • The Director-General of ASIO must obtain the consent of the Attorney-General before seeking a warrant from an issuing authority. • Before consenting, the AG must be satisfied that there are reasonable grounds for believing that issuing the warrant will substantially assist the collection of intelligence that is important in relation to a terrorism offence and that relying on other methods of collecting that intelligence would be ineffective. • If the warrant being sought requires a person to be taken into custody immediately and detained, the AG must also be satisfied that the person may alert another person involved in a terrorism offence of the investigation, or the person may fail to appear before the prescribed authority, or the person may alter or destroy a record or thing that they may be requested to produce. • If the warrant concerns a person between the ages of 16 and 18, the AG must also be satisfied on reasonable grounds that the person will commit, is committing or has committed a terrorism offence. • An issuing authority may only issue a warrant if it has been requested in accordance with the proper procedure and it is satisfied that there are reasonable grounds for believing that the warrant will substantially assist in the collection of intelligence that is important to a terrorist offence.

18. Australia • Procedures under a warrant • A warrant issued under the Bill will require a person to appear before a 'prescribed authority' to provide information or produce documents or things. • A 'prescribed authority' will be either a person who has previously been a judge of the High Court, Federal Court, Family Court, Supreme or District Court of a State or Territory. If there are insufficient people in this category, the Attorney-General may appoint a serving judge of a State or Territory Supreme or District Court or the President or a Deputy President of the Administrative Appeals Tribunal. • The warrant may request that a person appear at a particular time or order the person to be taken into custody to be brought before the prescribed authority. • If the person is taken into custody immediately and detained, this will be the responsibility of the police, normally the Australian Federal Police.

19. Australia • A warrant can allow up to a total of 24 hours of questioning in 8-hour blocks over a maximum period of seven days. • The person will have access to a lawyer of choice, with safeguards to protect security-sensitive information and increased penalties for secrecy offences. • ASIO will be able to apply to the prescribed authority to prevent access to particular lawyers. The prescribed authority must be satisfied that permitting such access may result in a person involved in a terrorism offence being alerted to the investigation or may result in the destruction, damage or alteration of a record or thing that the person may be required to produce under the warrant. The subject of the warrant can then choose another lawyer. Questioning can commence in the absence of a lawyer but the person has a right to a lawyer at all times. • A secrecy provision places a ban on the legal adviser communicating any unauthorised information while the subject is detained under a warrant. The penalty for breaching this provision is up to five years imprisonment. • Penalties of up to five years imprisonment apply for those who fail to answer questions accurately or produce documents or other requested things.

20. Australia: ASIO • ASIO must provide for each warrant issued a written report to the AG on the extent to which the action taken under a warrant has assisted the organisation in carrying out its functions. • ASIO's unclassified annual report must include • a statement of the total number of requests made to the AG and to issuing authorities for warrants and the actual number of warrants issued during the year, • the number of warrants issued that require a person to appear before a prescribed authority, • the number that authorise a person to be detained and • statistics including the number of hours each person appeared before a prescribed authority for questioning under a warrant. • The Parliamentary Joint Committee on ASIO, the Australian Secret Intelligence Service and the Defence Signals Directorate will be asked to review the new provisions and provide a report on their operation. • The relevant provisions of the Bill will sunset in three years.

21. Declaring terrorist organisations • Bill suggests that the Minister may declare an organisation to be a terrorist organisation by notice in the Gazette if the organisation is an international terrorist organisation in terms of a decision of the Security Council of the United Nations. • The Minister may also declare an organisation to be a terrorist organisation by notice in the Gazette if there are reasonable grounds for believing that the organisation or any of its members on its behalf has • Claimed responsibility for a terrorist act • Committed a terrorist act • Endangered the security or territorial integrity of the Republic or another country

22. Declaring organisations continued • The Bill makes provision that the Minister must publish a notice in the Gazette stating that he or she intends to declare the organisation. • The organsiation may apply within 60 days to the High Court for an interdict. • The hearings indicated that alternatives should be considered: • one possibility raised was an ex parte application to the court to declare/list an organisation with a rule nisi to give opportunity to the organisation to respond to the application; • another possibility raised about organisations listed by the UN Security Council is to submit such listing to Parliament for its consideration.

23. Measures against financing of terrorism • The Commission considered that the procedure set out in the Prevention of Organised Crime Act of 1998 could be used with the necessary amendments to combat the financing of terrorism, as this Act makes provision for a comprehensive procedure for the preservation and ultimately forfeiture of so-called terrorist property. • It is clear that the provisions dealing with these aspects should be further refined. The hearings indicated that consideration should be given to effecting amendments to the POCA to deal with terrorist financing in POCA. • Point was also raised that provisions setting out the reporting duties on terrorist financing could be dealt with under FICA and not the Bill.