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

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.