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Address by Francois Beukman ANC MP on the Critical Infrastructure Protection Bill 2017

Speech by Francois Beukman ANC MP, Chairperson Of The Portfolio Committee On Police, Critical Infrastructure Protection Bill 2017, National Assembly, Tuesday 28 August 2018

House Chairperson,
Honourable Members,
Fellow South Africans

Thank you for the opportunity to introduce on behalf of the Portfolio Committee on Police the Committee Report on the Critical Infrastructure Protection Bill dated 14 August 2018 that was published in the Announcements, Tablings and Committee Reports on Wednesday, 15 August 2018.
The Critical Infrastructure Protection Bill 2017 will replace the National Key Points Act of 1980 and corresponding laws of the former TBVC states. The National Key Point Act was initially administered by the Minister of Defence, but later transferred to the Minister of Police.
The Key Points Act has become outdated and obsolete and was the product of a pre-democratic era and not relevant and applicable to a right based democratic dispensation.
The 1996 Constitution of the Republic of South Africa provides that all spheres of government and all organs of state must secure the well-being of the people of the Republic;
The Constitution provides for the right of access to information, subject to the limitations provided for in section 36 of the Constitution;
The Bill that is before the House today is also a response to international developments relating to Critical Infrastructure. The concept of critical infrastructure that is included in the Bill is wider that mere safeguarding which was the main objective of the National Key Point Act.
Examples of critical infrastructure is a nuclear power station, the Office of the President, the National Assembly ext.
It is accepted that the protection of critical infrastructure has become a much broader concept with a distinctly new focus on preventative security measure as well.
Jurisdictions have different approaches to the protection of critical infrastructure. In the People's Republic of China, the approach to critical infrastructure is viewed as an attempt to reconcile the internal security endeavours of the state with the necessity of economic modernisation about information technology.
India drew up a dedicated action plan that statutorily mandated the establishment of dedicated organisations and guidelines for the area of IT security. In the United States of America, the Department of Homeland Security is coordinating all the US governments critical infrastructure protection at governmental level. Canada had incorporated information and communication technology (ICT) protection in "its" Total Defence" overall concept and follows the All Hazards approach.
Many nations have adopted an all-hazards approach aimed at improving their ability to anticipate vulnerabilities to current and future threats.
In the South African context, the protection of critical infrastructure is essential for public safety, national security and the continuous provision of basic public services.
It is also essential that objective criteria about the identification and declaration of critical infrastructure be followed to avoid arbitrary decisions based on unsound criteria.

It is also necessary that the Bill is harmonised with other legislation such as the National Strategic Intelligence Act, Regulation of Gatherings Act, the Disaster Management Act, the Promotion of Access to Information Act, the Promotion of Administrative Justice Act and the Firearms Control Act.
It is important to note that the Bill does not apply to infrastructure under the control of the Department of Defense.

1. Committee Process
On 27 October 2017, the Committee, through public adverts called for public submissions on the Bill with a closing date of 17 November 2017. The Committee extended public comments and submissions to 24 November 2017.

2. Submissions received
The Committee received the following submissions at the end of the closing date:
* Gautrain for People on the Move
* Legal Services Department
* Amabhungane Centre for Investigative Journalism
* National Energy Regulator of South Africa
* The Banking Association South Africa
* Western Cape Government
* Green Environmental Organisation
* Social Justice Coalition
* J D Bothma
* Right 2 Know
* South Durban Community Environmental Alliance
* South African Catholic Bishops Conference
* African Policing Civilian Oversight Forum
* Eskom
* South African National Editors Forum

The Committee proceeded to have public hearings on 30 and 31 January 2018 where most of the organisations were invited to make oral presentations.

The Committee had deliberation on the Bill on the following dates:
* 6 February 2018
* 13 February 2018
* 20 February 2018
* 21 February 2018
* 14 March 2018
* 22 March 2018
* 23 March 2018

3. Further Submissions
The Committee subsequently allowed for further submissions and received further submissions from APCOF, Amabhungane Centre for Investigative Journalism, Eskom and the South African National Editors Forum. The Committee took oral presentations from APCOF and Amabhungane on the issues it raised.

4. Consideration of Amendments
The Committee considered amendments on the Critical Infrastructure Protection Bill on 25 April 2018 and 4, and 30 May 2018.

What is a nutshell the framework of the Bill?

The new Bill provides for:
* the identification and declaration of infrastructure as critical infrastructure;
* to provide for guidelines and factors to be considered to ensure transparent identification and declaration of critical infrastructure;
* to provide for measures to be put in place for the protection, safeguarding and resilience of critical infrastructure.
* to provide with the establishment of the Critical Infrastructure Council and its council;
* to provide for the administration of the Act under the control of the National Commissioner as well as the functions of the National Commissioner in relation to the Act
* to provide for the establishment of committees and their functions;
* to provide for the designation and functions of inspectors;
* to provide for the powers and duties of persons in control of critical infrastructure;
* to provide for reporting obligations and transitional arrangements.

5. Legal opinion
One of the issues that was raised during the deliberations phase was the matter of a public interest defence.
One of the submitters -AmaBhungane expressed the view that the clause 26 prohibitions will fall foul of the right to freedom of expression on section 16 of the Constitution unless they are made subject to a defence of publication in the public interest.
The Committee subsequently obtained an independent legal opinion from Adv. Wim Trengrove. SC. on the concern raised.

The Committee concurred with his advice that the inclusion of public interest clause is not necessary if sufficient provision is made.

House Chairperson, one of the innovations in the Bill to advance transparency and accountability is the establishment and composition of the Critical Infrastructure Council that must consist of thirteen members appointed by the Minister of Police. The Council will consist of a mix of eight State officials and five persons from the private sector and civil society.

The members of civil society must be appropriately qualified, knowledgeable and experienced in fields that include critical infrastructure protection, risk management, disaster management or basic public services.
The National Assembly will approve the short list of private sector candidates that will be referred to the Minister of Police for appointment.
The reporting duties of the Critical Infrastructure Council will also ensure transparency and public scrutiny:

The annual report must include the following:
* The activities of the Council during the preceding year;
* Particulars pertaining to the number of declarations as critical infrastructure;
* Particulars pertaining to any decision by the Council to depart from a publication of a notice
* Particulars pertaining to any limitations or revocation as critical infrastructure;
* The level and extent of public-private sector cooperation;
* And any other matter that may impact on the protection of critical infrastructure or the functioning of the Council.

We believe that the Critical Infrastructure Bill will provide for an adequate framework for the roles, responsibilities and accountability of parties about the protection of critical infrastructure to be defined and for the enhancement of public confidence and awareness in respect of the protection of critical infrastructure.

I thank you.

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