Film & Publication Amendment Bill: socio-economic impact assessment & amendments; MDDA & ICASA vacancies, with Minister

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Communications

16 May 2017
Chairperson: Ms H Maxegwana (ANC)
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Meeting Summary

Socio-Economic Impact Assessment System of 2015 [awaited]
 
In the presence of the Minister of Communications, the Department of Planning, Monitoring and Evaluation (DPME) briefed the Committee on the compliance of the Films and Publication Amendment Bill with Socio-Economic Impact Assessment System (SEIAS).

DPME noted that Parliament had instructed that a Socio-Economic Impact Assessment be performed on the  Films and Publication Amendment Bill which was concluded on 2 December 2016. DPME's presentation dealt with the Bill's overarching problems, groups to benefit or to bear the costs, consultations, impact assessment and minimising costs and managing risks. DPME noted that the Final Impact Assessment provided a more detailed assessment of the Bill. In addition, it identified mechanisms for monitoring, evaluation and modification as required and a system for managing appeals that could emerge around the implementation process. The Department of Communications (DoC) would need to establish a new Directorate for Online Content and Digital Media Literacy. The Bill would incur costs for the establishment of the Enforcement Committee to deal with administrative non-compliance. The implementation of the Bill was dependent on ensuring monitoring and evaluation.

DPME noted the groups to benefit from the Bill. It listed those who had submitted comments on the Bill. Both the Department of Communications and the Film and Publication Board had provided responses to the concerns raised and addressed these through proposed amendments.

DPME concluded that the Bill created an efficient regulatory framework and improved turnaround times for classification that would enable online commercial distributors to know what to expect when entering the South African market.

Members felt that DPME did not provide an analysis of the investigation of the Bill’s socio-economic impact. Its presentation merely supported the Bill but did not analyse its social and economic impact nor did it cost the Bill.  With the help of Parliamentary Legal Adviser, they agreed that some aspects of SEIAS were included in the presentation.

The Department of Communications then briefed the Committee on the proposed amendments to the Bill drafted since the public hearings. On 7 March 2017 DoC had presented the proposed amendments to the Bill. The DoC noted that concerns were raised about certain definitions and that the Committee raised a concern that there seemed to be no collaboration between the DoC, Parliamentary Legal Services and the State Law Advisor. These parties were instructed to meet and agree on a final document. They met on 11 May 2017 and agreed on a final document which was being presented to the Committee today. The DoC had substantially amended the Bill based on the public comment. Those provisions in the Bill alleged to be unconstitutional have been removed. There are also new amendments which were not included in the original amendment Bill when it was introduced in Parliament.

Members pointed out that the Committee could not deal with the new amendments which were not included in the original amendment Bill without complying with the Rule of Parliament - one had to seek permission from the National Assembly to introduce amendments unrelated to the Amendment Bill. Members asked if clause 18H was aligned with section 16(2) of the Constitution which does not permit advocacy of hatred and whether these aspects were not addressed by the Hate Speech Bill. Was the Draft Hate Speech Bill published? If yes, when was that?

The Committee discussed the filling of vacancies on the MDDA Board and the ICASA Council. The Chairperson noted that the filling of these vacancies are critical. The adverts for four vacancies were sent out in December 2016. The timing of that advertisement was problem because it was at the end of the year. However people did apply and by the end of January, there were 13 ICASA and 26 MDDA applicants. It was a good response. When he looked at the responses, there were few women and all applicants were black, by which he meant there was no white applicant and the black applicants encompassed Africans, Coloureds and Indians. He said that when the DG position was advertised, only one person had applied. For MDDA, the percentage of people who applied were 75% African, 21% Coloured, and 4% Indian, with 61% male.  For ICASA, 77% of the applicants were Africans, 17% Coloured and 6% Indian, with 70% male. The Chairperson asked Members consider this as the demographics were problematic as it was inconsistent with the law of the country. It would be wise for Members to take a decision. The decision should have been taken earlier that in a situation like this, positions should be re-advertised. However, the applicants were fine in terms of skills. There were two people who had submitted late.

Members decided that the positions be re-advertised to allow white people and more women to apply despite the delay and expense. However, it agreed with the Minister that the MDDA be allowed to continue its recruitment process by interviewing candidates for the position of MDDA CEO, which interviews could happen without a quorate board.

Meeting report

Film and Publication Amendment Bill - Socio Economic Impact Assessment compliance: DPME input
Ms Pulane Kole, Chief Director: SIAS,  said the Final Impact Assessment provided a more detailed assessment of the Films and Publications Amendment Bill. In addition, it identified mechanisms for monitoring, evaluation and modification as required and a system for managing appeals that could emerge around the implementation process.

Ms Kole noted that as per Parliament instructions of October 2016, DPME met on 10 October 2016 to finalise the SEIAS which was concluded on 2 December 2016.

Ms Kole noted that groups to benefit included children, adult consumers/parents, on-line distributors of films and games, law enforcement agencies, the public at large, children rights organisations, Department of Communications, commercial on-line content distributors, and the Film and Publication Board.

Public comments were submitted by the SA Communications Forum, Right 2 Know, NAB, ICASA, SABC, E.TV, Association of Christian Media, Interactive Entertainment South Africa, Jewish Board of deputies, Cause for Justice, Media Monitoring Africa, SOS Coalition, Centre for Constitutional Rights, Internet Service Providers’ Association and Emma Sadlier Social Medial Law. Both the Department of Communications and the FPF provided responses to the concerns of these organisations and addressed the potential disputes.

Ms Kole noted that the DoC would need to establish a new Directorate for Online Content and Digital Media Literacy. The FPB would incur costs for establishing the Enforcement Committee to deal with administrative non-compliance. The implementation of the Bill was dependent on ensuring monitoring and evaluation.

Ms Kole said that the Bill created an efficient regulatory framework and improved turnaround times for classification that will enable online commercial distributors to know what to expect when entering the South African market.

Discussion
The Chairperson commented that DPME and the Department of Communications were working together on the compliance of the Bill with the Socio-Economic Impact Assessment System (SEIAS) as per agreement. He asked Members whether they engage with DPME first or whether the Department of Communications presents and they engage with both presentations thereafter.

Ms P Van Damme (DA) said she preferred an engagement with DPME first. She was a bit confused as she thought that DPME could brief the Committee on its SEIAS findings on the Bill. However, it was apparent that the presentation was in support of the Bill instead of giving DPME’s critical analysis of the Bill in terms of the SEIAS report.

The Chairperson asked Ms Van Damme if she agreed that the Committee instructed DPME and the DoC to interrogate everything in the Bill and to brief the Committee on the outcome of such interrogation.

Ms Van Damme agreed. She wanted a DPME report specifically talking about SEIAS. It was not clear what DPME’s opinion was. It had previously made a presentation on why it supported the Bill. This presentation did not differ from the previous one.

Mr M Kalako (ANC) commented that the problem was that the DPME presentation was combined with the DoC report. The DoC would also present on those aspects the Committee had asked them to interrogate and report on. These issues were also raised by the Parliamentary Legal Advisor and the State Law Advisor. All these reports would make a variety of inputs. DPME had been requested to brief the Committee on Trade and Industry on the same aspects and had presented a totally distinct presentation. The confusion might be there. However, Members should agree with the DPME even though the report did not state clearly what the social and economic implications were.

Ms N Tolashe (ANC) agreed with Ms Van Damme and stated that social and economic implications could have been highlighted in a more systematic manner. When members interrogated the Bill, they identified gaps. Members were expecting the same analysis of the Bill from a social and economic perspective. DPME should provide details of the work it had done.

Ms Kole responded that DPME played two roles: One was to facilitate and assist the DoC to apply the SEIAS and second was to conduct an independent analysis. DPME presented on the finished product – including what the DoC could not do and identification of what could be the actual costs. DPME did not want to come only with the analysis report without further inputs from it which could create unnecessary delays. It was also a platform where DPME could provide some inputs for the DoC to be able to work on or respond to those identified issues. One of these touched on other legislation resulting in the establishment of inter-ministerial Committee. DPME was learning from for example, cyber-crime. There was an inter-departmental committee dealing with cyber-crime. In so doing, particular roles and responsibilities had to be allocated to a particular department in terms of legislation. This was the type of issues raised in the implementation of the Bill. Roles and responsibilities ought to be clearly divided and allocated.

The Chairperson noted that the problem might lie with the Committee’s instruction. DPME had responded to both questions: The question directed to it and the other directed to the DoC. Would you like DPME to respond only to the question directed to it which was impact assessment? He did not know what members wanted him to direct DPME to do. He thought that DPME should have focussed only on the impact assessment. Did members still want to hear DPME’s view on the socio-economic impact assessment? He reminded members that the State Law Advisor would brief the Committee on the same question.

Ms Van Damme said that the instruction was clear and Members had asked DPME to conduct an impact assessment from which Members were going to form an opinion about the Bill which was very controversial and which people had a problem with. DPME had not done that. What was needed from DPME was an impact assessment report. She felt that DPME had not yet done that and no anticipated costs were provided. This was core information that was needed. She therefore suggested that DPME needed to come back and brief the Committee on the impact assessment report.

Ms Tolashe disagreed. DPME should not be sent back because it would not be wise to do so. It should be given an opportunity to take Members back through the presentation to show them those aspects related to the impact assessment report.

The Chairperson asked if DPME had the SEIAS report with it and whether it could report on it.

Ms Kole responded that DPME differed from the approach of the Committee. Its approach was not to brief the Committee on the impact assessment without intervening where gaps were found. It was not about coming and just reflecting on the analysis. It felt obliged to intervene where gaps were found. The impact assessment report could however have been attached to presentation. The presentation covered the issues in the SEIAS.

Minister of Communications, Ayanda Dlodlo, felt that the presentation touched on all issues raised in the SEIAS report. The presentation was just written down differently and covered the comments of the people that were consulted in the process. Only one thing was missing and that was an attachment of the SEIAS report. What could not be doubted was the fact that the presentation emanated from the SEIAS report. It gave an indication of the problems identified, why the problems persisted and impact of those problems. The presentation indicated who was consulted. There might be gaps in some issues but the presentation covered issues raised by Members.

The Chairperson said DPME should again talk to the SEIAS issues so members know what these are.

Ms Kole said that even if DPME was to be sent back, the presentation on SEIAS would not differ in substance and content to the one presented to the Committee.

Ms Van Damme commented that she had not received the SEIAS report.

Mr Kalako responded that the report was distributed and this reflected in the minutes of the Committee. The report was circulated to Members in December 2016.

The Chairperson agreed. He said that Members should peruse the report and then be able to engage with DPME or other departments in their engagements. He asked how DPME presentation should be treated? Did Members agree that the presentation speaks about the SEIAS report?  

Mr Tolashe agreed that the SEIAS report was covered. She did not see any difference if DPME was requested to come back again to speak on the SEIAS report. The presentation should be given the value it deserved. They were providing information in accordance with the Committee’s instruction.

Ms Van Dyk said Members should discuss the nature of presentation and come up with a conclusion.

The Chairperson disagreed. He asked if they could give an opportunity to DPME to state its view on the disputed report.

Mr Kalako said that the Committee had been engaging with DPME and it was turned away on several occasions, and this had an impact on the Bill. Members should hear DPME out for the Committee to be able to engage with the Bill. DPME had briefed the Committee on the socio-economic implications and it was expecting to hear the same story when the State Legal Advisor briefed the Committee on the SEIAS report.

The Chairperson agreed. He said that Members should be advised by the Parliamentary Legal Advisor on whether the SEIAS report was covered by the DPME presentation.

Ms Phumelele Ngema, Parliamentary Legal Advisor, said that the SEIAS report was covered. She noted that there were a number of engagements between the departments.  From the perspective of what DPME had presented, the presentation had covered all concerns of the Committee. More details on responses to those concerns could be found in the full report. It was her honest submission, the Committee should go ahead and engage with the amendments to the Bill that the DOC wanted to present to it.  The full report should be submitted to Members.

The Chairperson agreed and invited the Department of Communications to brief the Committee.

Department of Communications (DoC) briefing on Film and Publication Amendment Bill [B37-2015]
Mr Tshegofatso Kgarabjang, DoC Director: Legal Services, provided updated feedback and responses to the Committee’s concerns, an extensive clause by clause amendment list, and advice from the State Law Advisor. He reminded the Committee that on 7 March 2017 the DoC presented a detailed clause by clause proposed amendments to the Bill. Concerns were raised about certain definitions and the Committee said that there seemed to be no collaboration between the DoC, Parliamentary Legal Services and the State Law Advisor. These parties were instructed to meet and agree on the final document. They met on 11 May 2017 to address the concerns and agreed to a final document which was being presented to the Committee today. The DoC had substantially amended the Bill after the public comments were received. The provisions in the Bill alleged to be unconstitutional had been removed. There are also new amendments to sections which were not included in the original amendment Bill when it was introduced in Parliament.

Discussion
Ms Van Dyk asked if clause 18H of the Bill was aligned with section 16(2) of the Constitution to criminalise all forms of hatred that were based on identifiable group characteristics. She asked if that was not addressed by the Hate Speech Bill. Was the Draft Hate Speech Bill published? If yes, when was that?

Mr Kgarabjang responded that section 16(2) speaks about "propaganda for war, incitement of imminent violence and advocacy of hatred that is based on race, ethnicity, gender, or religion and that constitutes incitement to cause harm". Clause 18H  was amended to be in line with section 16(2) of the Constitution. If there was an incident of hate speech reported to the police, the police officer was allowed in terms of the Bill to conduct an investigation and bring the wrongdoer to book. There should be recourse not only for the victims but also for the police in terms of enforcement to be able to investigate and arrest.

Ms Van Dyk commented that the police could deal with hate speech cases only when they were reported. Was the Draft Hate Speech Bill published and was the impact assessment study? Did the legislation state that the assessment report ought to be published?

Mr Kgarabjang said that the impact assessment report could be published if approved by Parliament. The Draft Hate Speech Bill was published but the subsequent amendment to the Draft Hate Speech Bill was not published. There was merely engagement with the Committee and with the legal advisor team.

Ms Van Dyk said that the response was confusing.

Ms Kole stated that when SEIAS was introduced in February 2015, there was an institutional arrangement about its implementation. Cabinet came up with an official date for implementation of SEIAS as of 1 October 2015. By that time, the Bill was already tabled in Parliament in August 2015.

Ms Van Damme stated that what was happening to the Bill should be seen as a caution for the tabling of other Bills. The Bill was tabled in Parliament after no public consultation, it was not well written, and no SEIAS was conducted. The Committee should not blame itself for the delay of the Bill because it had to ensure that the Bill was constitutional. The Committee was doing its work and the DoC should actually take the blame for tabling a problematic Bill which should not have been tabled. Judging from the DoC presentation, concerns that were brought to the attention of the Film and Publication Board were responded to and she would be happy to read the final form of the Bill. However, there were still a couple of concerns outstanding such as the introduction of new amendments to the Amendment Bill. If the current Bill was fundamentally different to that tabled, the process was to write to the National Assembly and inform it about such amendment to request either to go on with the Bill or to re-table a new Bill. The Rules of Parliament ought to be adhered to.

The Minister replied that she could see that Ms Van Damme was agitated regardless of the fact that it was the duty of the Department to bring the Bill to the Committee so it could be advised that certain aspects of it might not be clear. The DoC did not stall the process and the implementation date of SEIAS could not mean that DoC should be held accountable.
 
Mr Kalako said that the DoC had at least responded to their concerns. What was left was for the Committee to go through the Bill. It had reached clause 18 previously. As it had changed fundamentally, the Parliamentary Legal Advisor ought to advise the Committee on how to proceed with the Bill.

Ms Van Damme said the Bill was tabled in November 2015 and was dealt with in early 2016. It should have complied with SEIAS even if it had come into force for only one month.

Ms Ngema replied that there should be permission from the National Assembly to include amendments to sections of the Act which were not there when the Amendment Bill was tabled. According to the Rule, it was mandatory and compulsory to seek such permission. In the current Bill, about four new provisions were amended. Once the permission was sought the Committee could go ahead and deliberate on the Bill clause by clause.

The Chairperson noted that the DoC should seek such permission first There are also new amendments which were not included in the original amendment Bill when it was introduced in Parliament..

MDDA Board and the ICASA Council vacancies
The Chairperson noted that the filling vacancies in MDDA and ICASA were critical. The adverts for four vacancies were sent out in December 2016. The timing of that advertisement was problem because it was at the end of the year. However people did apply and by the end of January, there were 13 ICASA and 26 MDDA applicants. It was a good response. When he looked at the responses, there were few women and all applicants were black, by which he meant there was no white applicant and the black applicants encompassed Africans, Coloureds and Indians. He said that when the DG position was advertised, only one person had applied. For MDDA, the percentage of people who applied were 75% African, 21% Coloured, and 4% Indian, with 61% male.  For ICASA, 77% of the applicants were Africans, 17% Coloured and 6% Indian, with 70% male. The Chairperson asked Members consider this as the demographics were problematic as it was inconsistent with the law of the country. It would be wise for Members to take a decision. The decision should have been taken earlier that in a situation like this, positions should be re-advertised. However, the applicants were fine in terms of skills. There were two people who had submitted late.

Ms Van Damme asked for the final number of those who applied for the positions.

The Chairperson replied the applicants were 26 and 29 for MDDA and ICASA respectively.

Mr Kalako said that the positions should be re-advertised in order to accommodate the gender and race question, despite the pressure that was on DoC. The Minister should understand that the applicants ought to be diverse.

The Chairperson noted that the Committee’s official decision on whether to re-advertise was necessary not only because re-advertisement would delay the filling of vacancies but also there would be financial implications.

Ms Tolashe seconded Mr Kalako and commented that the Committee should recognise that there would be financial implications.

Ms Van Damme said that because the re-advertisement would take time, the Committee should consider filling the MDDA vacancies. The MDDA vacancies were very urgent. CVs could be considered for interviews.

The Chairperson said that the re-advertisement should be given another month.

Members agreed.

The Minister said that there were decisions that could be taken at management level. Therefore she would go back to the MDDA to check on what were those matters that had to be decided on by top management. She would then be able to know whether the decision taken by the Committee was helpful or not. Some decisions could be taken without Board endorsement, because they were, perhaps, operational decisions. The concern had been raised was about the interviews for the MDDA CEO position. The decision to advertise for the CEO position was taken when the Board had a quorum. Yet, the full board was not needed for conducting interviews. The process of interviewing the CEO would be started. And the decision would be taken depending on what came out of the interview process.

The meeting was adjourned.

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