NATIONAL CONVENTIONAL ARMS CONTROL AMENDMENT BILL

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NATIONAL CONVENTIONAL ARMS CONTROL AMENDMENT BILL

• Briefing to the Portfolio Committee on Defence
• 12 August 2008

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GENERAL BACKGROUND

• NCACC is a Govt Function that seeks to achieve
  responsible, accountable and regular trade.
• This function gives effect to the new value
  system of the current South African society.
• This function is part of a wider govt system of
  the South African arms control system (SAPS
  Firearms Registry and DTIs Non Proliferation
  Council).
• This function exists because there is a defence
  industry base in South Africa.

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CONSENSUS THAT GUIDES ARMS CONTROL

• International consensus on the sensitivity of
  defence industry products and services.
• International consensus on requirement for
  effective Arms Control.
• Domestic consensus on Responsible Trade,
  Regularity and Accountability.
• South Africa to be a Responsible Player in global
  market.
• Promotion of Certainty, Predictability,
  Responsibility, Accountability, Regularity and
  Objectivity.

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CONTEXT

• The Current Act been in operation since 2003.
• Lot of lessons learnt during its implementation
  which necessitated the review of the Act and
  Regulations.
• These, inter alia, include
• Practical admin challenges.
• Legal challenges.
• Realities of industry both domestically and
  internationally.
• Requirement to forge effective relationship with
  the industry.
• Issues of responsibility and maturity.

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THE REVIEW PROCESS

• Review Process commenced in 2006.
• An Interdepartmental Workgroup was set up for the
  Review.
• Amendments were approved by NCACC and certified
  by the State Law Advisor.
• On 14 May 2008 Cabinet approved the proposals
  contained in the Bill.
• The 2008 Defence Industry survey contributed to
  the process.
• The Bill has been introduced to Parliament in
  June 2008.

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PROPOSED AMENDMENTS

• Key Objectives
• Improve and facilitate the Regulatory role of the
  NCACC.
• Bring the Act in line with the reality of
  business.
• Scope of Application
• Correct the orientation of the Act. (Trade bias)
  
• Include domestic transfers.
• Include possession.
• Include reference to dual-use goods listed in the
  Wassenaar Arrangement.

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• Definitions
• Armed conflict.
• Controlled items to include conventional arms,
  dual-use goods an tech and services. A list to be
  published.
• Relate definition of Conventional Arms to
  Munitions List of the Wassenaar Arrangement
• Incorporate controls related to Dual Use Goods
  and Services.
• Domestic Transfer.
• Permit definition to be related to Section 14.
• Prohibition of Mercenary Activities Act.
• Scrutiny Committee definition related to Section
  7A.

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• Possession. Criminalise but exclude possession
  by legal govt security agencies.
• Objects of the NCACC (Sec 3)
• Extend the object to include
• Regulation of domestic transfer possession of
  controlled items.
• Implement the Prohibition of Mercenary Activities
  Act.
• Functions of the NCACC (Sec 4)
• Extend to include the functions of the NCACC ito
  the Prohibition of Mercenary Activities Act.
• Over and above the SAPS requirement to obtain
  NCACC approval when certain export threshold are
  reached, give the NCACC powers to prescribe
  thresholds for other possible future Acts on
  arms.

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• Cross Referencing (various Sections)
• Prohibition of Mercenary Activities Act
• Firearms Control Act.
• Non-Proliferation Act.
• Explosives Act.
• Electronic Communication Act.
• Scrutiny Committee (Sec 7A)
• Legislate for the SC, its composition and
  functions.
• Dealing with Dual-Use Good (Sec 13)
• Set less onerous control standards for dual use
  good and technologies (Sec 13).

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• End User Certificates (Sec 17)
• As a measure of control, oblige recipient
  countries to provide EUCs.
• Provide selective and considered exemptions on
  good cause shown.
• This will be done on a case by case, for foreign
  country onwards export without EUC encumbrances.
• To cater for the market realities where defence
  industry operations are arranged on value chain
  addition principle (Warehousing and Integration).

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• Disclosure and Non-disclosure of Information
  (Sec 23)
• Retain the NCACCs reporting obligations to the
  United Nations and Cabinet
• Propose for annual reporting to Parliament as
  opposed to quarterly and annual reporting.
• Retain the NCACCs discretion on level and kind
  of information to be released (In line with
  PAIA).
• Retain the obligation on NCACC to provide reasons
  on admin decisions taken. ( In line with PAJA).

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• Offences and Penalties (Sec 24)
• Cater for trading and possession violations.
• Administrative Penalties (Sec 24A)
• Provide for an administrative mechanism to deal
  with less serious offences.
• Empower the NCACC accordingly.
• Retain the court process option.
• The administrative penalties process to be comply
  with fair administrative action

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• Exemptions (Sec 25A)
• Exempt the SAPS and the SANDF from permit
  requirements in instances of emergency operations
  and deployments .
• Special consideration for urgent export
  authorisation (Chair NCACC 1 Member) with ex
  post facto ratification.

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• Industry Internal Compliance Program
  (ICP)-Regulations
• To cater for the promotion of best practice in
  the industry.
• Provide for a platform to issue guidelines in the
  Regulations.
• In terms of these regulations, companies to
  establish mandatory internal compliance programs.
• Link to this Program will be the grading of
  companies according to their performance.

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• Grading of Companies (Regulations)
• Provide a platform for a mechanism to grade
  companies ( A B C).
• Methodology to grade companies to be provided for
  in the Regulations.
• Methodology to, inter alia, include
• Compliance with permit conditions
• Company internal compliance programs

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• Program Approvals (Regulations)
• Introduce the program approval concept.
• Allow for multiple export/import permits .
• This is to be informed by how the company
  conducts itself and how it is graded.
• Mandatory Reconciliation requirements.
• No derogation from the Arms Control principles.

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• Regulations and Notices
• Empower the NCACC to Issue Notices
• Cater for periodic publication of lists of
  conventional arms, dual use goods and services.
• Empower the NCACC to make regulations on any area
  of the Act e.g.
• Types of permits
• Conditions applicable.
• Information to be released.
• Delegations
• The Implementation of the Amendments will be best
  achieved through Proper Regulations

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THANK YOU