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RESTRUCTURING THE INTELLIGENCE DISPENSATION:GENERAL INTELLIGENCE LAWS AMENDMENT BILL 2011
Ad hoc Committee
24 February 2012
Establishment administration and regulation of intelligence structures
Constitution :chapter 11Provides for national legislation
The White Paper on Intelligence of1994 Intelligence Services Act 65 of 2002Establishment ,admin, and control of NIA, SASS, SANAI, and ISC
National Intelligence Strategic act 39 of 1994Functions of members of national intelligence structures and
NICOC
Electronic Communications and Transactions Act 25 of 2002Ensure security and promote development and access
Intelligence Services Oversight Act 40 of 1994JSCI and IGI
2 PHASE PROCESS OF TRANSFORMATION OF CIVIIAN INTELLIGENCE STRUCTURES
PHASE 1: 2009 consolidation or integration SSA - Arrests proliferation of structure (3 dept and COMSEC (Pty) LTD.)- Addresses failure of ‘Shared Services Concept’- Establishes 1 department SSA and 1 accounting officer- Focus resources from support services to core business and to
streamlined training and technology platforms PHASE 2: Comprehensive policy review
- Review of the white paper by 2013- New policy through the State Security Bill by 2014
Objectives of the General Intelligence Laws Amendment Bill - to establish SSA
Generally to operationalise phase 1 Disestablishes NIA, SASS SANAI departments and COMSEC Establishes 1 department called State Security Agency and 1
accounting officer and performs functions of the above entities. Ensures continued existence of ISC, CI and DI Ensures continued existence of NICOC but removes the function
of coordination of intelligence as an activity and continues research and analysis function, strategic coordination and productions of strategic products .
Consequential amendments to Intelligence Oversight Act etc.- IT IS A TECHNICAL AMENDMENT BILL TO ESTABLISH SSA- MORE COMPREHENSIVE POLICY WILL COME -SSA BILL -
2014
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SUMMARY OF LAWS
INTELLIGENCE DISPENSATION:INTELLIGENCE LEGISLATIVE FRAMEWORK
The Constitution of the Republic of South Africa, 1996 provides expressly for the establishment of any intelligence services, as part of the security services in Chapter 11.
The legislative framework that establishes the Intelligence architecture is in the main comprised of: • Intelligence Services Act, No. 65 of 2002
- Establishment of the Agency, Service and the Academy
- Appointment , promotion, discharge, demotion and transfer of members
- Establishment of the Ministerial Advisory Committee on training
- Powers and duties of the DG and the Minister
- Matters of labour relations
• National Strategic Intelligence Act, No. 39 of 1994
- Defined the functions of the Agency and the Services- Prescribed the function of security screening- Established NICOC and defined the functions of the
Coordinator- Defined the functions of the Minister- Define functions of other depts in relation to National security
• Intelligence Oversight Act, No. 40 of 1994
- Established the JSCI and the OIG and prescribed their functions
- Prescribes the access to Intelligence by the JSCI and the OIG- Prescribes offences and penalties.
• Electronic Communications Security Act, No. 68 of 2002
- Provides for the establishment of COMSEC and its functions- Deals with its incorporation in terms of the Companies Act- Deals with the handling of financial matters
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INTELLIGENCE DISPENSATION
INTELLIGENCE ARCHITECTURE (Prior 2009)
COURTS
JUDGES OFHIGH
COURTS
JUDICAL OVERSIGHT
JUD
ICA
L
AP
PR
OV
AL
FO
R
OP
ER
AT
ION
S (127’s)
CABINET
PRESIDENT
CABINETCOMMITTE
ES
NATIONALSECURITYCOUNCIL
MINISTER
EXECUTIVE OVERSIGHT
DG CLUSTER
NSC DG CLUSTER
ACT 39/94
AC
T
40/94
PARLIAMENTARY OVERSIGHT
PUBLIC PROTECTOR
HUMAN RIGHTS COMMISSIO
N
PUBLIC
JOINT STANDING COMMITT
EEON INTELLIGENCE
INSPECTOR GENERAL
AUDITOR GENERAL
NICOC
ACT 65/2002
SANAI
NCC
ISC COMS
EC
NIA
SASS
OIC
Act 68/2002 Act 70/2002
ACT 39/94
NICOC
ACT 65/2002
SANAI
NCC
ISC COMS
EC
NIA
SASS
OIC
Act 68/2002 Act 70/2002
INTELLIGENCE ARCHITECTURE (Proposed)
COURTS
JUDGES OFHIGH
COURTS
JUDICAL OVERSIGHT
JUD
ICA
L
AP
PR
OV
AL
FO
R
OP
ER
AT
ION
S (127’s)
CABINET
PRESIDENT
CABINETCOMMITTE
ES
NATIONALSECURITYCOUNCIL
MINISTER
EXECUTIVE OVERSIGHT
DG CLUSTER
NSC DG CLUSTER
NC Academy
AC
T
40/94
PARLIAMENTARY OVERSIGHT
PUBLIC PROTECTOR
HUMAN RIGHTS COMMISSIO
N
PUBLIC
JOINT STANDING COMMITT
EEON INTELLIGENCE
INSPECTOR GENERAL
AUDITOR-GENERAL
ACT 65/2002
Domestic
Foreign
SSA
General Intelligence Laws Amendment Bill
NICOC
ACT 39/94
ISC
NC Academy
ACT 65/2002
Domestic
Foreign
SSA
General Intelligence Laws Amendment Bill
NICOC
ACT 39/94
ISC
PROCESS TO REVIEW LEGISLATIVE FRAMEWORKN
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stab
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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
1994 2002 2009 2011 2012 2014
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PROPOSED LEGISLATIVE AMMENDMENTS
PROPOSED LEGISLATIVE AMENDMENTS
The Bill does not introduce policy changes, but seeks to:
• Repeal the Electronic Communications Security (Pty) Ltd
• Amend the following laws where reference to the amalgamated structures are substituted with references to the Agency, and where they enjoyed exemptions, these exemptions are transferred to the Agency:
• Security Services Special Account Act, 1969;• Labour Relations Act, 1995; • Basic Conditions of Employment Act, 1997; • Private Security Industry Regulation Act, 2001; • Regulation of Interception of Communication-related Information Act, 2002; • Public Service Act, 1994; • Financial Intelligence Centre Act, 2001; • Witness Protection Act, 1998, • Institution of Legal Proceedings Against Certain Organs of State Act, 2002; • Government Employees Pension Law, 1996; • Medical Schemes Act, 1998; • the soon to be repealed Protection of Information Act, 1982
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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• 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.
INTELLIGENCE SERVICES ACT AMENDMENTS
Functions of DG currently refer to ‘the Director-General or the CEO. This changes to refer only ‘the Director-General’ as all relevant functions will be attached to a single post.
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.
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 previously.
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• Collection and analysis of foreign signals intelligence• Supply of intelligence to the Minister• 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
Click to edit Master text stylesNATIONAL STRATEGIC
INTELLIGENCE ACT AMENDMENTS
NATIONAL STRATEGIC INTELLIGENCE ACT AMENDMENTS
Changes envisaged are ensuring that contents of Act continue to delineate mandates, roles and functions of the National Intelligence Structures.
Names of structures are structures are amended without implications for the Agency.
Bill focuses NICOC to the production of strategic intelligence products without the brief of coordinating tactical intelligence and intelligence led operations• To date, law and practice have been divergent in this area• Bill seeks to align the two and ensure that there exists a sound basis
for the rule of law• NICOC is located in the Office of the Minister of State Security.
Implications concerning the functions of the Agency:
• Currently the Agency has to supply “intelligence” to NICOC relating to national strategic intelligence as well as “intelligence” in regard to threats emanating from domestic and foreign intelligence. The Agency is also supplying “intelligence” in terms of its counter-intelligence mandate to the SAPS and the Department of Home Affairs.
• The Bill proposes that:
• “Intelligence” will not be supplied anymore in the above-mentioned instances but “intelligence products” will have to be submitted.
• Therefore, no raw information or source reports will have to be submitted and the Agency will also be under no legal obligation to submit raw information or source reports in above-mentioned instances.
Implications concerning the functions of the Agency:
• Currently the Agency has to supply “intelligence” to NICOC relating to national strategic intelligence as well as “intelligence” in regard to threats emanating from domestic and foreign intelligence. The Agency is also supplying “intelligence” in terms of its counter-intelligence mandate to the SAPS and the Department of Home Affairs.
• The Bill proposes that:
• “Intelligence” will not be supplied anymore in the above-mentioned instances but “intelligence products” will have to be submitted.
• Therefore, no raw information or source reports will have to be submitted and the Agency will also be under no legal obligation to submit raw information or source reports in above-mentioned instances.
The Bill repeals three functions that were previously COMSEC functions - in terms of the Electronic Communications Pty Ltd Act, 2002 – and assigns these new functions for the Agency to discharge in the prescribed manner, and in regard to communications and cryptography:
• To protect and secure critical electronic communications against unauthorized access or technical, electronic or any other related threats;
• To provide verification services for electronic communications security systems, products and services used by organs of state; and
• To provide and coordinate research and development with regard to electronic communications security systems, products and services and any other related services.
The Bill repeals three functions that were previously COMSEC functions - in terms of the Electronic Communications Pty Ltd Act, 2002 – and assigns these new functions for the Agency to discharge in the prescribed manner, and in regard to communications and cryptography:
• To protect and secure critical electronic communications against unauthorized access or technical, electronic or any other related threats;• To provide verification services for electronic communications security systems, products and services used by organs of state; and• To provide and coordinate research and development with regard to electronic communications security systems, products and services and any other related services.
The Bill also provides for the following statutory functions that are not currently contained in the Act:
• To collect and analyse foreign signals intelligence in a manner prescribed in the regulations issued in terms of the Intelligence Services Act, 2002 in accordance with the intelligence priorities of the Republic;
• To liaise with intelligence or security services or other authorities, of other countries or inter-governmental forums of intelligence or security services;
• to monitor or interfere with the electromagnetic, acoustic and other emissions and any equipment producing such emissions and to obtain and provide information derived from or related to such emissions or equipment and from encrypted material, for the purposes of protecting and promoting the national security of the Republic subject to the Regulation of Interception of Communications and Provision of Communication-related Information Act, No 70 of 2002.
The Bill also provides for the following statutory functions that are not currently contained in the Act:
• To collect and analyse foreign signals intelligence in a manner prescribed in the regulations issued in terms of the Intelligence Services Act, 2002 in accordance with the intelligence priorities of the Republic;
• To liaise with intelligence or security services or other authorities, of other countries or inter-governmental forums of intelligence or security services;
• to monitor or interfere with the electromagnetic, acoustic and other emissions and any equipment producing such emissions and to obtain and provide information derived from or related to such emissions or equipment and from encrypted material, for the purposes of protecting and promoting the national security of the Republic subject to the Regulation of Interception of Communications and Provision of Communication-related Information Act, No 70 of 2002.
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.
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.
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.
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.
Regarding NICOC it is necessary to take notice of the following implications:
• The post of Coordinator for Intelligence will be abolished and the Minister shall appoint the head of NICOC, who shall, subject to the directions and supervision of the Minister, manage and administer the functions of NICOC;
• Minister shall designate one of the members of NICOC as the chairperson thereof;
• Agency shall have representation on NICOC via the DG, head of the domestic division and head of the foreign division;
Regarding NICOC it is necessary to take notice of the following implications:
• The post of Coordinator for Intelligence will be abolished and the Minister shall appoint the head of NICOC, who shall, subject to the directions and supervision of the Minister, manage and administer the functions of NICOC;
• Minister shall designate one of the members of NICOC as the chairperson thereof;
• Agency shall have representation on NICOC via the DG, head of the domestic division and head of the foreign division;
• NICOC will cease to be responsible for the prioritization of intelligence activities but only for the coordination of intelligence products within the National Intelligence Structures;
• It will also become the function of NICOC to provide the Minister with national strategic intelligence and intelligence products relating to threats to the national security;
• NICOC will, in the prescribed manner, only be tasked to supply intelligence by the President, Cabinet, a Cabinet security cluster and the Minister and any such tasking not being from the Minister shall be directed to the Minister.
• NICOC will cease to be responsible for the prioritization of intelligence activities but only for the coordination of intelligence products within the National Intelligence Structures;
• It will also become the function of NICOC to provide the Minister with national strategic intelligence and intelligence products relating to threats to the national security;
• NICOC will, in the prescribed manner, only be tasked to supply intelligence by the President, Cabinet, a Cabinet security cluster and the Minister and any such tasking not being from the Minister shall be directed to the Minister.
New regulations to be issued by the Minister, after consultation with the JSCI, on the:• Conduct of counter-intelligence operations, counter measures and
intrusive operations;• Supply of intelligence products to the Minister;• Manner and form in which departmental intelligence shall be supplied
to State departments;• Manner and form in which NICOC may be tasked to gather and
produce intelligence products;• Provision of staff required for the administration of the Act; and • Any matter necessary for the effective execution and administration of
counter-intelligence functions and the coordination and interpretation of intelligence products.
New regulations to be issued by the Minister, after consultation with the JSCI, on the:• Conduct of counter-intelligence operations, counter measures and intrusive operations;• Supply of intelligence products to the Minister;• Manner and form in which departmental intelligence shall be supplied to State departments;• Manner and form in which NICOC may be tasked to gather and produce intelligence products;• Provision of staff required for the administration of the Act; and • Any matter necessary for the effective execution and administration of counter-intelligence functions and the coordination and interpretation of intelligence products.
Click to edit Master text stylesINTELLIGENCE 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 ‘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.
CONCLUSION
ACT 39/94
NICOC
ACT 65/2002
SANAI
NCC
ISC COMS
EC
NIA
SASS
OIC
Act 68/2002 Act 70/2002
NC Academy
ACT 65/2002
Domestic
Foreign
SSA
General Intelligence Laws Amendment Bill
NICOC
ACT 39/94
ISC
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THANK YOU
