BORDER MANAGEMENT AUTHORITY (BMA) BILL -OVERVIEW- 20 September 2016 CONFIDENTIAL

PURPOSE Clarify a few contextual matters that will inform the Department’s response to the public comments on the Border Management Authority (BMA) Bill, 2016 CONFIDENTIAL

OUTLINE Proposed institutional form of the BMA International Benchmarking Consultative Process on the BMA Bill Envisaged Process to Assign and Transfer Functions to the BMA CONFIDENTIAL

PROPOSED INSTITUTIONAL FORM OF THE BMA CONFIDENTIAL

DOMESTIC LEGISLATION PROVIDES FOR FIVE (5) INSTITUTIONAL FORMS FOR AN ORGAN OF STATE BMA Business Case (prepared by GTAC, 2015 ) assessed all 5 options and recommended the National Public Entity option Considerations: BMA must be located under single Executive Authority Government Component & Public Entity both suitable Aware of concerns over proliferation of Public Entities Government Components more suitable for a single function scenario Public Entity is more suitable for narrow function, i.e. implementation mandate CONFIDENTIAL

RATIONALE FOR THE NATIONAL PUBLIC ENTITY OPTION The National Public Entity (as a Schedule 3A entity in terms of the PFMA) is the preferred option for the following reasons: BMA is an organ of state in terms of the PFMA. It offers a potential solution to governance and accountability arrangements. A single executive authority is provided for and oversight is performed by Parliament. A board including membership from the primary organs of state may be established and act as the accounting authority or alternatively the accounting authority would rest with the head of the BMA with a Ministerial Oversight Consultative Committee as stipulated in the enabling legislation. The public entity could have a designated security and law enforcement status. Some of the staff that will migrate into the BMA would move from an existing public entity rather than from a public entity to a government department. Not preferable to be established as national department as this encompasses a policy mandate that the BMA is not proposed to have. The BMA will have a narrower implementation mandate. The content of this slide conforms to what was indicated as ASSUMPTIONS in previous BMA presentations. However, we do not regard all the statements made as ASSUMPTIONS as per the definition of an assumption. CONFIDENTIAL

INTERNATIONAL BENCHMARKING CONFIDENTIAL

SOME CO-OPERATION / INTEGRATION INTERNATIONAL OBSERVATIONS ON BORDER MANAGEMENT: DESK TOP ANALYSIS FINDINGS Generally few border management entities are responsible for the management of the country’s borderline. Australia, Canada, New Zealand, the United Kingdom and the United States of America have adopted a single-agency approach with respect to port of entry / frontline functions,. Where countries have opted for a single-agency approach at port of entry they have generally adopted a front office / back office construct. Netherlands, Finland and South Korea have adopted a dual-agency model with respect to port of entry functions whereby customs or its equivalent concentrates on the movement of goods and immigration or its equivalent concentrates on the movement of people. India, Norway, Peoples Republic of China, Russia, Mexico and Sweden have opted for a multi-agency approach to ports of entry functions. COMPLETELY SEPARATED SOME CO-OPERATION / INTEGRATION SINGLE AGENCY Worldwide, there is no single model for co-ordinating or integrating border management agencies There is a continuum of border management agencies / typologies CONFIDENTIAL

STUDY TOURS IN 2014 Delegation: Officials from 10 Departments / entities participated. Governments Visited: Canada, Mexico, Netherlands, Finland, Russia, China Organisations Visited: ICAO, FRONTEX, WCO, IOM, EU REGION 1 REGION 2 REGION 3 Key border management lessons were noted and included in the current proposals for the BMA in South Africa.

CONSULTATIVE PROCESS ON THE BMA BILL CONFIDENTIAL

PROCESS OF CONSULTATION Public Comments on BMA Bill, 2015: The BMA Bill, 2015 was published for public comment in August/ September 2015. Approximately 289 issues and comments received from 34 organisations and persons were considered. Cabinet and Departmental Consultations: Cabinet approved the introduction of the draft BMA Bill to Parliament on the 23rd of September 2015 (based on intergovernmental consultations, gazetting of the draft BMA Bill for public comment & socio-economic impact assessment). PSCBC: Three (3) engagements took place at the Public Service Council Bargaining Chamber (PSCBC). NEDLAC: Seven (7) engagements took place at the NEDLAC. Bilateral meetings were convened separately with Labour (4 meetings) and Business (4 meetings). OCLSA Certification: Consultations and inputs from the Office of the State Law Advisor (OCLSA) on the draft BMA Bill, 2016 lead to its certification on 18th of May 2016. The content of this slide conforms to what was indicated as ASSUMPTIONS in previous BMA presentations. However, we do not regard all the statements made as ASSUMPTIONS as per the definition of an assumption. CONFIDENTIAL

AREAS OF DISAGREEMENT IN THE NEDLAC PROCESS According to the NEDLAC protocol the parties cannot raise issues with Parliament outside of the areas of the disagreement below. Only three (3) substantive areas of disagreement could not be resolved at NEDLAC: Establishment of the Authority: Labour disagrees that the BMA will be a Schedule 3A national public entity in terms of the Public Finance Management Act, 1999 (Act No. 1 of 1999) since it views this as privatisation of government functions. Business is of the view that the risks are too high in establishing a new Agency. Government is of the view that all the main substantive concerns raised by Labour are addressed in the revised Bill. Security Vetting Process: Labour and Business have a longstanding disagreement with Government on the security vetting process across Government institutions. Their view is that it is ineffective and inefficient. Government is of the view that a security vetting process is an absolute necessity for all future BMA officials and employees. Routine Searches: The view of Business was that officials should only be permitted to search goods and persons where there are reasonable grounds to believe that a warrant is likely to be granted, if applied for, and that the delay in applying for such a warrant would defeat the object. Government is of the view that routine searches at ports of entry, and within the border law enforcement area, cannot be subjected to these limitations. The content of this slide conforms to what was indicated as ASSUMPTIONS in previous BMA presentations. However, we do not regard all the statements made as ASSUMPTIONS as per the definition of an assumption. CONFIDENTIAL

KEY ISUSES RAISED BY COSATU GOVERNMENT’S RESPONSE: COSATU COMMENTS The COSATU submission recognizes the areas where consensus was found between itself and government on the BMA Bill. However, the submission highlights the outstanding concern, namely that the BMA should be located within the public service and not as Schedule 3A National Public Entity outside of the public service. COSATU is of the view that if it located outside the public service the state will be fragmented and weakened. COSATU is further of the view that the BMA should be a national government department. GOVERNMENT’S RESPONSE: All the specific substantive concerns of COSATU have been addressed in the BMA Bill, 2016: Examples include, The blanket right to strike (which was in the NEDLAC version of the BMA Bill, 2015) has been removed and the Section 71 process of the Labour Relations Act will be followed to request that the functions of the BMA be classified as an essential public service. The Bill now requires all collective bargaining processes of the BMA to take place within the Public Service Coordinating Bargaining Council (PSCBC). This addresses the concern of COSATU that the BMA would fragment collective bargaining processes in the public service. Border law enforcement is an exclusive function of the BMA Border Guard. The conditions of employment and service of transferred employees to the BMA will not be negative affected. The content of this slide conforms to what was indicated as ASSUMPTIONS in previous BMA presentations. However, we do not regard all the statements made as ASSUMPTIONS as per the definition of an assumption. CONFIDENTIAL

KEY ISUSES RAISED BY BUSA GOVERNMENT’S RESPONSE: BUSA COMMENTS In terms of the NEDLAC report, adopted by all parties, BUSA only had one substantive area of disagreement, namely the clause on “Routine Searches”. BUSA also indicates that the risks associated with establishing a new organ of state are too high as it would negatively affect, inter alia legitimate trade. BUSA however raises matters on alternative / dispute resolution in its Parliamentary submission. GOVERNMENT’S RESPONSE: The key problem with the BUSA submission on the BMA Bill, 2016 to Parliament, dated September 2016, is that it reopens issues addressed in the NEDLAC process. This is contrary to NEDLAC protocols which states that only issues of disagreement may be raised in Parliament. In response to BUSA government has argued that the risks identified can be managed effectively by , inter alia: Phasing-in the establishment of the BMA; A Presidential Proclamation process, in terms of Section 97 of the Constitution of the Republic of the Republic of South Africa, will be used to transfer functions from relevant Departments and entities to the BMA (via the Minister of Home Affairs); Only SARS customs frontline functions will be transferred to the BMA; and Developing and implementing a comprehensive BMA risk management and risk mitigation strategy. The content of this slide conforms to what was indicated as ASSUMPTIONS in previous BMA presentations. However, we do not regard all the statements made as ASSUMPTIONS as per the definition of an assumption. CONFIDENTIAL

SOCIO-ECONOMIC IMPACT ASSESSMENT CONFIDENTIAL

SOCIO-ECONOMIC IMPACT ASSESSMENT SYSTEM (SEIAS) REPORT BACKGROUND The 2014 Presidency SEIAS Guideline recognizes that new policy initiatives can have unintended consequences in the following ways: Through inefficient implementation mechanisms; Stakeholders face an excessive cost from complying with the regulation; By over or underestimating the benefits associated with the new rule’s aims; and/or By underestimating the risks involved – in other words, by overestimating the likelihood of success in achieving the anticipated benefits. DHA commissioned an independent SEIA for the BMA that was submitted to Cabinet. CONFIDENTIAL

KEY OPTIONS FROM THE SEIAS AND CABINET’S DECISIOIN Status Quo Option 2 BMA Bill Option 3 Alternative BMA Model Voluntary Co-Ordination Mandated Collaboration Full Integration Level of Integration In June 2013 Cabinet considered this model and decided against this approach since it perpetuates the status quo which was not working The December 2014 Cabinet decision favoured this option under the BMA vision that endorsed the need for a single agency. The June 2013 Cabinet decision also ruled out this option when it decided that functions should be ceded to the BMA CONFIDENTIAL

ENVISAGED PROCESS TO ASSIGN AND TRANSFER FUNCTIONS TO THE BMA CONFIDENTIAL

ENVISAGED PROCESS TO TRANSFER AND ASSIGN FUNCTIONS TO THE BMA OCLSA has strongly advised the most approach manner to transfer functions to the BMA is via Presidential Proclamation as provided for in Section 97 of the Constitution: “The President by proclamation may transfer to a member of the Cabinet – The administration of any legislation entrusted to another member; or Any power or function entrusted by legislation to another member”. A process is underway by DHA and OCLSA to finalise the identification of legislation and relevant provisions within those legislation to be included in the above Proclamation. It is envisaged that this Section 97 Presidential Proclamation will be gazetted after the BMA Bill, 2016 has been enacted by Parliament and after the President has assented to the BMA Act and brought it into force. Once the Proclamation has been drafted the DHA will assess the need to amend to any affected legislation. The standard legislative process within the Executive and legislative arms of government will be followed. The content of this slide conforms to what was indicated as ASSUMPTIONS in previous BMA presentations. However, we do not regard all the statements made as ASSUMPTIONS as per the definition of an assumption. CONFIDENTIAL

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