Civil Union Bill, Films & Publications and Immigration Amendment Bills: briefing by Minister of Home Affairs

Meeting report

HOME AFFAIRS PORTFOLIO COMMITTEE
6 September 2006
CIVIL UNION BILL, FILM AND PUBLICATIONS AMENDMENT BILL AND IMMIGRATION AMENDMENT BILL: BRIEFING BY MINISTER

Chairperson: Mr H Chauke (ANC)

Documents handed out:
Minister of Home Affairs briefing
Home Affairs presentation on Civil Union Bill
Home Affairs presentation on Immigration Amendment Bill
Home Affairs presentation on Films and Publications Act
Constitutional Court case judgment: Minister of Home Affairs and Another v Fourie and Another; Lesbian and Gay Equality Project and Others v Minister
Summary of judgment

SUMMARY
The Committee met with the Minister of Home Affairs and the Deputy-Minister of Justice to receive a briefing on three new pieces of legislation to be tabled. Detail was provided on the Civil Union Bill, the Film and Publications Amendment Bill and the Immigration Amendment Bill. The envisaged legislation would have a significant impact on society. The government had been sensitive to avoid creating further social divisions. Legislation pertaining to marriage had to be adjusted to conform to the Constitution and the Bill of Rights. Cabinet had approved the Civil Union Bill to be tabled. Technical amendments had to be introduced to the Immigration Act. Newspapers would no longer have a blanket exemption on the classification of material published. The State Law Advisors voiced objections to certain aspects of the Civil Union Bill at the meeting. A report had been submitted to Parliament outlining their concerns. Such a report would not halt the tabling process. This report had not been conveyed to the Minister.

Members questions included whether an amendment to the Constitution had been considered to protect the traditional definition of marriage, whether sufficient time would be available to allow sufficient public input, why an amendment to the Marriage Act had not been contemplated, whether the Bill complied with the Constitutional Court ruling, whether the Civil Union Bill had been certified by the State Law Advisors and the programme of public hearings to be held.

The Chairperson believed that the State Law Advisors should be involved in the deliberation process. A new programme would be presented shortly for the public hearings.

MINUTES
The Chairperson noted that the Bills had elicited much public interest and 2000 submission letters had been received thus far. Various key stakeholders had made important comments and raised pertinent issues. Accusations had surfaced in the media that the government was reverting to apartheid-era censorship in terms of the Film and Publications Amendment Bill. Cabinet had approved the pieces of legislation that would now be tabled before the Committee. The Department of Home Affairs was responsible for the administration of the Civil Union Bill. The Constitutional Court provision imposing a timeframe on the legislative process had to be adhered to. The Bill had to be passed by 1 December 2006. A programme for public hearings had been drawn up.

Minister of Home Affairs briefing
The Hon Ms Nosiviwe Mapisa-Nqakula (Minister of Home Affairs) read out a written statement outlining the tabling of the three Bills. The legislation would have a significant impact on society. The government would ensure that adequate consultation would take place. Detail was provided on the Civil Union Bill, the Immigration Amendment Bill and the Film and Publication Amendment Bill. The current laws regarding marriage had to be re-evaluated and the necessary adjustments introduced. Legislation regarding marriage had to conform to the Constitutional framework. The common law definition of marriage had been challenged in the Constitutional Court. The Court ordered that Parliament correct the defects by 1 December 2006. Cabinet had approved the Civil Union Bill to be presented before Parliament. Certain adjustments had to be made to the legislation governing immigration. Intra-company transfer work permits had to be extended to accommodate economic realities. A few technical amendments would also be introduced. The Film and Publication Amendment Bill would insert certain definitions, stipulate the functions and powers of the Board, powers and management of the classification office and repeal certain schedules in the Act. Children would be protected from potentially disturbing, harmful and age-inappropriate materials. The blanket exemption for newspapers on the classification of material published would be removed.

Discussion
Mr S Swart (ACDP) asked whether an amendment to the Constitution was considered to protect the traditional definition of marriage. He asked whether sufficient time for public hearings and submissions would be allowed by the Constitutional Court deadline and whether an extension was an option.

Mr M Waters (DA) asked why the definition of marriage in the Marriage Act was not redefined or amended. The Bill did not make provision for same-sex marriage and therefore could be construed as perpetuating discriminatory practices.

Mr W Skhosana (ANC) sought clarity on the reasons for a Bill as opposed to amendments to the Marriage Act.

Ms S Kalyan (DA) asked whether the Bill met with the Constitutional Court ruling.

The Minister responded that the Constitutional Court did not request an amendment to the Marriage Act and a Constitutional amendment would not be considered. The Civil Union Bill sought to allow same-sex couples to have equal rights as guaranteed in the Constitution. An amendment to the Marriage Act would have caused divisions in society. The Bill would seek to support the framework of rights as contained in the Constitution.

Mr Johnny De Lange (Deputy-Minister of Justice) referred to the national project to promote national reconciliation and nation-building. The government had to be mindful of these challenges when contemplating new forms of legislation. Certain moral issues such as the death penalty and abortion had the potential to undermine attempts to overcome social divisions. The situation had to be managed in a sensitive manner. All legislation had to comply with the Constitutional framework. The Equality and the Freedom of Religion clauses of the Constitution were of particular importance. No hierarchy of rights existed in the Constitution. Issues of status were underdeveloped in family law. Ultimately one holistic piece of legislation on marriage would be pursued that incorporated all religions and related issues but in the interim the Civil Union Bill would attempt to make the necessary alterations. He referred to the Robinson case and noted that Parliament would seek to provide a regime to govern domestic partnerships and protect the interests of women. The common law defined marriage as that between a man and a woman. The Constitutional court ruled this definition to be unconstitutional. Therefore the Bill would have to amend the definition of marriage.

The Bill would provide a choice to gay couples in terms of marriage or civil partnership. The drafters had contemplated the definition of a marriage formula. Two concerns had been considered. One option was to create one system for all religious and other types of marriage. However, this was perceived to be undesirable. The second concern was to avoid creating new forms of discrimination or marginalisation. The Marriage Act referred to both state and religious marriages in one formula. The state could not force all religious communities to allow gay or same-sex marriages. Therefore, a separate piece of legislation was necessary to provide for same-sex marriages. All religious groups had conveyed strong objections to the notion of same-sex marriages. The addition of the word "spouse" to the marriage formula in the Marriage Act would have created problems. The government wanted to avoid the situation where same-sex couples could demand to be married by a particular religion based on amended legislation. The Bill would make reference to civil partnerships between people of the same sex. The state, however, had to comply with requests for same-sex marriages.

The definition of marriage officers would be clearly stated in the Bill. All legal consequences of marriage would be included in same-sex partnerships. Gay couples would have a choice between a marriage or a civil partnership. The state would be compelled to provide marriage officers for same-sex marriages although state officials could refuse to participate on grounds of conscience. Religions that chose to participate in same-sex marriages could be added to the list of participants over time. No obligation would be placed on religious groups to conduct same-sex marriages. A genuine attempt would be made to garner wide-ranging public input. The government had complied with the Constitutional Court order in the formulation of the legislation. Sufficient time had been allocated to conduct public hearings. South Africa’s civil union would be unique in the global context in that a choice would be provided for either a civil partnership or a marriage.

The Minister stated that the Committee had to ensure that adequate public comment was facilitated. The State Law Advisors had not certified the Civil Union Bill but had produced a new version. She declared that the law advisors had to pronounce on the constitutionality of the existing Bill as a new draft bill would not be acceptable. The Cabinet had approved the draft to be tabled and a new draft could not be produced after Cabinet had approved the pre-existing Bill.

Ms Ayesha Johaar (State Law Advisor) stated that her office had received the Civil Union Bill on the 14 August 2006. The advisors would have preferred more time to consider the content of the Bill. The Civil Union Bill would not be declared unconstitutional despite the strong reservations. The Bill did not fully implement the ruling of the Constitutional Court. The Cabinet route was not the best option to follow in the circumstances.

The Chairperson asked whether the Bill had been certified by the State Law Advisors and if not, whether this would adversely impact on its constitutionality.

Ms Johaar stated that the State Law Advisors had issued a report highlighting issues and concerns to Parliament but this would not halt the tabling process.

The Minister asserted that she had not been approached by the State Law Advisors at any stage and had only received comment and advice from the Department of Justice, who had raised no concerns raised concerning the constitutionality of the Bill. The Cabinet had passed the Bill on the 23 August 2006. No letter had been received from the State Law Advisors outlining any problems. The government had to comply with the Constitutional Court ruling. The prescribed timeframe had to be borne in mind. A Cabinet committee had discussed the Bill twice before final Cabinet approval had been attained. The State Law Advisor’s sudden revelations raised uncertainty as to whether the Bill should be withdrawn or not. She asserted that Parliament had to play a role in the process and produce appropriate legislation to meet the Constitutional Court requirements.

The Chairperson declared that interaction should have taken place between the Deputy-Minister of Justice and the Minister of Home Affairs on any reservations raised by the State Law Advisors. He proposed that the relevant parties meet as soon as possible to resolve the impasse.

The Minister reiterated that the deliberation process could proceed without certification by the State Law Advisors. The State Law Advisors should have raised concerns prior to the approval by Cabinet instead of producing a new draft Bill.

Ms Kalyan asked whether the Bill met the deadline for the tabling of Bills of 1 September 2006.

Mr F Beukman (ANC) noted that no written evidence existed in the Bill to support the position of the State Law Advisors as presented at the meeting and therefore the Bill should be tabled.

Ms Johaar stated that she could not pronounce on the constitutionality of the Bill to be tabled. The State Law Advisors were of the opinion that the Bill as presently drafted would create legal challenges for government. For example, the Bill made no reference to minors, marriage officers had the right to refuse to participate and domestic partnerships were portrayed as a separate institution. The advisors had produced a separate draft Bill to overcome perceived shortcomings.

The Chairperson declared that the State Law Advisors must be involved in the deliberation process and could raise their concerns as the process unfolded. A Committee programme would be drawn up that outlined the public hearings for the tabled Bills. The first public hearing would take place on 14 September in Soweto. The last hearing would be held in Cape Town on 9 October 2006. Hearings would be held in Parliament on 12-13 October 2006. [The Committee programme of public hearings has subsequently been withdrawn until the issue of the status of the Civil Union Bill has been resolved. A new programme would be prepared in due course]

The meeting was adjourned.