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AD HOC COMMITTEE ON THE POWERS AND PRIVILEGES OF PARLIAMENT (NA) AND (NCOP)
28 September 2001
POWERS AND IMMUNITIES OF PARLIAMENT BILL: WORKSHOP
Chairperson: Mr Moosa (ANC, NCOP)
Draft Powers and Immunities of Parliament Bill, 2001
Summary of Third Draft of Powers and Immunities of Parliament Bill
The deliberations focused on Chapter 5 of the Draft Bill and in particular clauses 10, 11, 12, 13, 14, 15 and 16. There was lengthy discussion on the appropriate circumstances under which police may act in Parliament. Whether an instruction from a Presiding Officer is required before the police can act and whether the police are authorised to act with immediate effect without awaiting an instruction only when there is an apparent threat to life or limb. The Committee also discussed at length whether a Member, staff member or non-governmental organisation (such as the Parliamentary Monitoring Group) could testify as to the proceedings in Parliament with or without the permission of the House. Due to the time constraints and the failure to reach consensus on these clauses, the Committees agreed to meet again on 2 October 2001.
Mr Moosa (ANC) asked about progress made by the Subcommittee in drafting proposals.
Advocate Meyer, a legal consultant for the Subcommittee, indicated that due to the ongoing workshops being conducted on the Bill, no clear instructions were being received from the Subcommittee. Until such time it would be impossible to draft a proposal.
The Chair then advised that his experience on the Justice Committee could be assistance herein. He suggested to Adv Meyer that each time a suggestion is made or an amendment is discussed and there appears to be support, therefore, an option should drafted. By the time deliberations take place one or two options would be available to the Subcommittee allowing them to extract what the legislature feels is necessary.
As regards the Bill, the Chair added that the issue, which required some clarity, was that of crosscutting immunity, namely, whether or not one legislature would have immunity in one Province, but not in another. This he believed was more a constitutional issue as opposed to a practical issue, but nevertheless had to be dealt with. To overcome this, he suggested that a single regime for all provinces be drafted and that the Subcommittee apply its mind. He requested that Adv Meyer and the other legal consultants commence drafting on this aspect of the Bill at their earliest convenience.
Adv Meyer, however, expressed the opinion that he was not in favour of drafting at present, but recommended that policy options be drafted first. Upon acceptance of the policy decision, only then would legislation be drafted.
Ms P. De Lille (PAC) supported this view and suggested that the assistance of Professor Marais be sought in dealing with this aspect.
The Chair agreed and advised that Adv Meyer and his legal consultants try their hand at a non-paper draft. In so doing, he suggested that they consider commissioning help from the State Law Advisors, as well as the Department of Justice. The Chair requested that this matter be attended to urgently.
Adv Meyer requested that Professor Marais and Professor Haysom be appointed as consultants to fulfil this task. The Chair agreed.
Mr C. Elgin (DP) was of the opinion that the Bill presented no relative importance since the powers and privileges of Parliament had been listed in the Constitution, unless it contained additional powers and privileges not expressed in the Constitution. He further stated that in reading the Bill, he was unable to decipher which powers and privileges referred to constitutional and which referred to additional powers and privileges. To best illustrate his point he referred to Chapter 2 Clause 4(3)(a) and (b) and Chapter 2 Clause 16 of the Constitution.
The Chair responded that it was the responsibility of the Subcommittee to find a balance between fundamental and constitutional law. It would be the Subcommittees duty to make sure that the legislation could be easily understood to be governing legislation and where it is subject to the Constitution, it should expressly state so.
The Chair added that at the end of the workshop he would require a single regime document to be drafted.
Mr Elgin said he was in favour of producing a single document coherent with the Constitution. The Chair cautioned that there must be a balance not derogating from the point of finality in drafting this legislation.
Referring once again to the difference between the provisions contained in this Bill and the Constitution, the Chair advised that a "bland clause" be drafted so that the ordinary lay-man in reading this legislation would have no difficulty understanding it. Mr M. Chikane (ANC) agreed with this view.
Adv Meyer expressed the view that Chapter 3 should not deal with interests of members, but with members of Parliament and therefore Chapter 3 should be combined with Chapter 5.
The Chair recommended that the Subcommittee look at broadening the definition of "Speaker" to include a Committee Chairperson to give effect to Chapter 5 Clause 10(1).
Mr P. Hendrikse (ANC) was of the opinion that the Committee Chairperson should have the right to remove a committee member from Parliament, not contained in this proviso. Adv Meyer stated that such powers should be limited. Instead, he was of the opinion that the Committee Chairperson should have the power to see that there is order in the Parliament.
On further scrutiny of Chapter 5 Clause 10(1), the Chair suggested that the word "join" be deleted and replaced with the word "participates" and that the same terminology be utilised in Clause 11(a). Members agreed with this view.
The Chair then enquired if further issues had been raised in previous discussions, which still had to be dealt with. Adv Meyer said that all issues had been dealt with.
Moving on to Clause 11, Adv Meyer stated that the words "a person, other than a member…" should include persons participating in any disturbance as mentioned in Clause 10(1). The Chair agreed and foresaw no further problems with this Clause.
At this juncture, Mr Elgin (DP) enquired as to the legal understanding of the phrase "…bring Parliament in contempt…" as contained in Clause 11(b). Adv Meyer referred him to Chapter 4 Clause 8(d), which he believed fully explained the terminology used in Chapter 5 Clause 11(b).
However, in Professor Murray’s draft opinion on this section of the Bill, it is expressly stated that the word "contempt" requires further explanation and would be best replaced by the term "disrupt", but that the final decision was ultimately that of the Courts. In the meantime, the ordinary common law definition of the term "contempt" should prevail.
To further expand on the definition of the word "contempt", Adv Meyer referred to a recent judgement in which a staff member of the Court criticised the Courts for granting an accused bail. The question that arose was whether this amounted to "contempt" according to the definition. According to Adv Meyer, obtaining finality on this point would depend on the evidence produced before the Courts.
Mr M Chikane (ANC) supported the view that the word "contempt" be replaced with the word "disrupt" as suggested by Professor Murray. Mr Hahndiek, Secretary to the National Assembly, also agreed with this view. Adv Meyer too supported Professor Murray’s view and believed that the word "disrupt" would be in the interests of an ordinary member of the public.
Ms De Lille (PAC) expressed concern however, regarding the term "offence" as contained in Clause 11 of the Bill and Section 35 of the Constitution. By including such terminology, she believed that no second provision existed for Parliament. Adv Meyer advised that there is a due process in the Court of law before a person may be convicted.
At this point, Adv Meyer referred the Subcommittee back to Chapter 5 Clause 10(1) and in particular the phrase "…without warrant on the verbal order of the Speaker or the Chairperson…" which he believed should be amended to include a Committee Chairperson. The Chair, however, disputed this and at which point Adv Meyer suggested that the words "without warrant" be deleted and replaced by the words "order of the Chairperson".
Ms Hangana (ANC) (with reference to this particular section) referred to an incident in Parliament by members of the Freedom Front who disrupted the proceedings of Parliament. In applying the words "verbal order" would a situation as demonstrated by the Freedom Front members have to prevail until such time as the Presiding Officer gives a verbal order?
The Chair asked Ms Hangana to clarify whether she was referring to members of the public or members of the House. Mr Hahndiek responded that in situations where the general public causes a disruption to the proceedings of Parliament, the police have immediate rights to remove people. Mr P. Hendrikse (ANC) commented that he was unsure whether the police had automatic powers to remove persons from the House without a verbal instruction. Mr Hahndiek replied that an instruction is required from the Presiding Officer first prior to this mandate being fulfilled. If, however, there were an apparent threat to life or limb, only then would the police be authorised to act with immediate effect without awaiting an instruction.
The Chair disagreed and asked where such a notion was derived from. Mr Elgin maintained that in his view it was the prerogative of the Presiding Officer to maintain order in the House. Mr M. Masutha (ANC) agreed with this sentiment and stated that a police officer would not know if an offence was being committed unless the actions of the Presiding Officer wilfully displayed this. He maintained that a situation could arise where a peaceful demonstration could be dispersed by the police.
The Chair then questioned whether there was merit in writing into these clauses that the police were required to await an instruction from the Presiding Officer first before taking any action, unless there appeared to be an immediate danger to life, limb or property. This, he believed, could also give rise to the situation where police failed to act until such time as receiving an instruction from the Presiding Officer.
The Chair then stated that to eliminate further confusion on this point, the proviso be amended to state that where there is an immediate danger or threat to life, limb or the safety of a person, the police have automatic powers to take action without an instruction. However, if not, then the police should await an instruction from the Presiding Officer first before taking action. Adv Meyer agreed with this view and suggested that it be incorporated into Clause 12(1)(a) of the Bill.
Ms Rajbally (MF) stated that Clause 12(1)(b) was too restricted and there was no clear way for a person to institute powers. The Chair asked whether Ms Rajbally was referring to members of the House or the police. She whether the powers of members of the House would apply immediately on an incident. Alternatively, would members also require the permission of the Presiding Officer before taking action? The Chair stated that the second issue raised dealt more with a policy issue. The office of the Speaker is neutral and responsible for overseeing the well being of Parliament. Furthermore, it would be the Presiding Officer’s responsibility to take the initiative. This was different from the issue of safety. Mr Hahndiek commented by stating that this point is fully explained in Clause A(1) of the Definitions of the Bill. The definition is not restricted to members only.
At this juncture, Mr Masutha stated that the Subcommittee needed to separate the procedures of common law from other areas of law. In dealing with this section the Subcommittee was referring to the powers of arrest and not other areas of law. Clause 11 creates new powers in respect to very narrow areas of law and does not extend to the whole of criminal law, whereas Clause 12 requires more clarification because it indirectly amends the Criminal Procedure Act. Instead, what should be said is that where the physical security of a person is in danger, this Clause would be applicable. But, before doing so, the Criminal Procedure Act needs to be referred to.
Adv Meyer stated that Clause 12 as it stood formed part of the common law privileges of the Criminal Procedure Act. And hence, one could not look at whether or not Clause 12 was too broad because it prohibits a person from serving a summons, subpoena or other processes issued by the Courts. The idea surrounding this Clause was that the House is not disrupted.
Mr Hendrikse thought that this should be restricted to members only. Adv Meyer commented by stating that the importance of this Clause was to ensure that duties of Parliament were executed and that in doing so, staff members were required to fulfil this function. The Subcommittee should refer to Chapter 6 Clause 16 in this regard. Adv Meyer further advised that the term "staff" be excluded. The Chair then enquired as to the reason for such exclusion. He stated that whole set of procedures surrounding Parliament needed to be retained and therefore the term "staff" should remain.
Mr Elgin referred the Subcommittee back to Clause 11(1) said he believed the Speaker of Parliament was the custodian of the precincts. With this view in mind, it is apparent that the Speaker is in control of the precinct and therefore authority and permission would have to be obtained from the Speaker first.
The Chair advised that the essence of this Clause was to determine how and when the police had authority to act in Parliament. They should take action on safety considerations being at risk. Thus, there existed a need to incorporate this into legislation. The idea, he stated, was not to tamper with the powers of Parliament, but with the powers of the police.
On the Chair requesting the Subcommittee’s opinions hereon, Mr P. Hendrikse thought the Clause should remain as is. Was it a requirement to inform the police that they could act only in the event of a threat to life or limb. The Chair expressed concern regarding the latter remarks made by Mr Hendrikse (ANC).
In qualifying this Clause the Chair referred to a situation where an ordinary member of the public pulled out a gun in Parliament. Should the police first wait for an instruction from the Speaker before acting?
Mr Hahndiek stated that there was a Security Policy between a Presiding Officer and the police. The Chair then requested that a copy of the Security Policy be obtained and forwarded to Subcommittee members and that the issue be revisited at a later stage, to which Members agreed.
The Chair then requested that the Subcommittee proceed to Chapter 6 of the Bill relating to Members of Staff. Adv Meyer presented a brief overview of the Chapter and remarked that this particular legislation does not purport to take away or tamper with powers.
Ms Rajbally required clarification on a situation where, if the Speaker of Parliament is duly notified that a Member of Parliament has committed an offence, should the nature and seriousness of the offence be considered prior to his or her removal from Parliament? Adv Meyer in responding referred Ms Rajbally (MF) to Section 47 of the Constitution, which he believed clarified this section.
Mr Elgin (DP) raised the issue of an appeal. If a conviction is appealed, is the House to await the decision of the Appeal Court first before removing a Member or not? Mr Hendrikse replied by stating that Parliament has a duty to wait for the Appeal procedure to expire first before removing a member. The Chair believed that this was an important issue that needed to be incorporated into the Bill.
Mr Masutha (ANC) commented that in drafting this Clause, words similar to those used in paragraph (e) of the Constitution needs to be adopted. Mr Hendrikse stated that the purpose of this Chapter was merely for Parliament to be informed upon a member committing an offence. Adv Meyer agreed. He stated that this Chapter was drafted to alert Parliament in the event of a member committing an offence. He recommended that the Clause remain as is. The Chair agreed except to add that the Clause should be broadened to state which Court should inform or write a letter to Parliament.
The Chair then requested that the Subcommittee proceed to Clause 15 of Chapter 6 due to time constraints. In referring to Clause 15(2) he expressed concern regarding the usage of the words "such a certificate may be issued only if the member is required in Parliament on important parliamentary business". He asked for the Subcommittees views hereon.
Mr Hendrikse disputed these words as well. The mere fact that Parliament was in session was sufficient to justify the granting of a certificate. Adv Meyer remarked that the aim of this Clause was to enable Parliament to fulfil its duties and not to protect the members. Mr Hahndiek remarked that before a certificate is issued, regard should be given by the Speaker as to number of members of a Party and whether one member’s absence from the Party would impact on the Party as a whole. Mr Masutha believed that the Clause should remain as is, as it confers an administrative function on the Speaker.
Ms Rajbally was concerned over a situation where the Speaker of Parliament had been served with a subpoena. Who then would fulfil the duties of Parliament? The Chair responded by stating that the Speaker too would be protected by sending a certificate to court and this, in effect, was the reason for such a Clause. However, these words should be redrafted.
The Chair expressed concern regarding the word "civil proceedings" as contained in Clause 15(1) and requested it to be removed.
Adv Meyer, despite the Chair requesting that this section be redrafted, expressed the opinion that the Speaker should be given discretion to grant a certificate or not. The Rules of Parliament must state what is sufficient cause for granting a certificate. Mr Hahndiek commented by stating that the onus existed on the member to request the issuing of a certificate. The Chair then appealed to the Subcommittee to make a decision on whether the Clause should remain or be deleted.
Mr M. Masutha (ANC) disagreed with the sentiment that the Speaker should have discretion in the issuing of a certificate. He remarked that it would be difficult to assess what is parliamentary business and what is not. And, in fact, this should be determined by the Speaker. An element of objectivity should remain on the part of the Speaker. The Chair agreed with this view and requested Adv Meyer to draft a clause expressly incorporating what Mr M. Masutha stated. Mr Elgin (DP) disputed this view. He was of the opinion that a Speaker had no status to determine the importance of the business of the Courts and that this was not the Speakers field of expertise.
After extensive exhaustion of this topic, the Chair stated that the aim of this Clause was to allow the Speaker to assess the nature of the case and not the importance of the Courts. Based on this view the Speaker would be entitled to use discretion upon assessing the facts of the case. The Chair summarised these discussions, stating that four options existed for the consideration of the Subcommittee:
Option 1 –that the Clause is to remain as is.
Option 2 –that the Speaker be afforded the discretion to issue a certificate and in issuing the latter the Speaker must be informed of the nature of the court case.
Option 3 –that the Clause remains as is with an element of importance.
Option 4 –if a member is required to attend any Court proceedings, that he (the member) appraises the Speaker as to the nature of the Court case.
Mr Masutha (ANC) responded that the jurisdiction of court does not exclude discretion. Based on this view, the same should be done with the Speakers right to discretion. The Chair was in full agreement. Mr Elgin, however, disputed this.
Adv Meyer, in justifying the nature and aim of this Clause referred the Subcommittee to S165(3) of the Constitution and cautioned that the Subcommittee not interfere with the functions of the Courts. The Chair agreed and stated two further options, namely:
Option 1 –that the relevance of the Court be weighed up against Parliament; and alternatively
Option 2 –that it be sanctimonious that when a person is required to appear in Court, that he does so.
The Chair then requested that the Subcommittee make a decision on whether or not the Clause is to be excluded from the Bill.
Mr Masutha posed the question before the Subcommittee that should the certificate fail to be issued, does the right exist to appeal this discretion? The Chair, in his reply, referred to the J. De Lange approach.
Mr C. Morkel (NNP) stated firstly that where a certificate is granted and a member is exempted from court proceedings and the court proceedings is at a stage where it requires the granting of judgement, may a court proceed by granting judgement in absentia? Secondly, would this legislation permit the Courts to postpone proceedings to another time and date? The Chair urged Adv Meyer to take note of this point and revert to the Subcommittee hereon at a later stage.
The Chair expressed the opinion that option number four best applied to the Bill. He recommended that option number five also be considered, which entailed deleting the Clause completely. The Chair then adjourned the morning session for lunch and briefly summarised as follows:
- That the Subcommittee had two approached to consider, namely (i) to have a broad general clause would be useful, but at the same time only the Speaker would be authorised to grant the certificate upon being appraised of the facts; and alternatively (ii) that the Clause be deleted completely.
The Chair advised that the express views indicated by certain members over lunch showed that it was important for a Bill of this nature to contain such a Clause and that the option of the Clause being deleted completely cannot be considered. In summary, the Chair maintained that three principles governed this Clause, namely: (i) that the rationale of Parliament was to protect Parliament; (ii) that the drafting of such a Clause would protect against an extraordinary scenario; and (iii) that the involvement of the Presiding Officer would be limited.
The Chair, in concluding this aspect of the Bill, requested that Adv Meyer and his Legal Advisors proceed to commence legislation hereon and revert to the Subcommittee at a later stage.
The Chair then proceeded to deal with Clause 16 of the Bill.
Mr Hendrikse asked if a member of Parliament could take the initiative of giving evidence without the consent of the House. Mr Hahndiek replied by stating that the words "elsewhere" contained in this provision adequately answered this question. The Chair expressed the opinion that the Clause should be left as is. Mr Hahndiek commented that the use of the words "obtained the leave of the House" meant that the permission of the House was required.
The Chair then asked the Subcommittee to consider whether a member of a committee can be subpoenaed to discuss or re-iterate the discussions of the committee so as to ascertain the legislation?
Mr C. Morkel (NNP) referred to Clause 16(1), requesting clarity on whether the words "no member" in this provision referred to media reporters and whether it infringed on their freedom of expression. Additionally, could non-governmental organisations be called to give evidence?
Mr Palmer, State Law Advisor, replied that the capacity of a person needed to be determined, as well as the purpose of such a person drafting the minutes of such discussions. The Chair disagreed with this view. Ms Rajbally stated that the term "no member" was vague and required further qualification.
Mr Palmer noted that the words "persons employed by Parliament" need to be included in this Clause.
The Chair referred to the Parliamentary Monitoring Group, responsible for drafting minutes of Parliamentary proceedings and thereafter making such information available to the general public on the world-wide web. Could such a body be called to testify or provide evidence as to the discussions of the Committee?
Mr Palmer replied that this should be left to the discretion of the House to decide.
Mr Morkel asked whether a non-governmental organisation like the Parliamentary Monitoring Group becomes a legal persona if it enters into a contract with Parliament. The Chair responded that this would not occur unless PMG were employed by Parliament. Should PMG or any other non-governmental organisations be called to take minutes and thereafter be called to give evidence thereon, it would not involve the decision of the House.
Mr Hendrikse referred to the past practice of Parliament that the permission of the House had to be requested prior to any notes or minutes being taken in Parliament. The Chair stated that two principles applied in dealing with this Clause. Namely: (1) whenever any Tribunal or Court required evidence or documents of proceedings of Parliament, this may not be granted until such time as the permission of the Speaker had been obtained; and (ii) any official of Parliament would be prohibited from giving evidence until permission had been obtained from the Speaker. However, with regard to an ordinary member of the public, no such permission needed to be sought.
The Chair then asked Mr Hahndiek which of the above two views he supported. Mr Hahndiek replied that only members of Parliament should be allowed to give evidence.
Mr M. Masutha (ANC) pointed out that a number of clauses related to this issue and in particular Clauses 26 and 27. However, the purpose of Clause 16 was to ensure that Parliament would have control over who should or should not be entitled to give evidence. The Chair remarked that the Subcommittee’s function should be focused around building a Parliament with full immunity and not to allow every member of the public to have such immunity. Mr Lever (DP) commented to this statement by saying that Clause 16 is not intended to refer to the ordinary member of the public. The Chair summarised the two options to be considered, namely:
Option 1 –that only Parliament members, officials and staff be permitted to give evidence surrounding the proceedings of Parliament; and alternatively
Option 2 –that any Member be allowed to give evidence, Parliamentary or Public, provided the permission of the House is obtained.
Mr Hahndiek referred to Section 45 of the Constitution, saying it was appropriate for a staff member of Parliament called to testify on evidence of the proceedings of Parliament, to obtain permission from the House first.
The Chair remarked that the broader aspect surrounding the two options suggested earlier was being derogated from.
Ms Hangana (ANC) requested that the matter be postponed pending further deliberation by the Subcommittee.
A Member asked the Subcommittee to consider a situation where, for example, a member of PMG had been required to take minutes of discussions and during such discussions a member of the Committee had exercised his freedom of speech. Could such a person employed by PMG be called to give evidence? Mr C Morkel (NNP) extended this scenario by asking what the position would be if there was a dispute in the minutes of Parliament and those of any organisation such as PMG, as regards authenticity.
Mr Palmer answered the above two Subcommittee members, stating that every Committee member is afforded the freedom of speech during the discussions of Parliament. However, any statements made by members outside the House would be the member’s own prerogative.
A Member suggested that the words "no member, staff member and persons employed by Parliament to take minutes" be excluded and be redrafted as follows: "A court may only have evidence with regard to authenticity…" Ms Rajbally (MF) suggested that the Subcommittee depart from this aspect of the Clause pending further discussion.
Ms Hangana (ANC) asked if evidence was required in a Court of law, would Parliament be required to forward the official or unofficial records of Parliament to such Court? Mr Morkel remarked that the aim was not to juxtapose the official or unofficial records of Parliament, but instead to refer to the authenticity of these documents. Mr Hahndiek, extending Mr Morkel’s scenario, asked what the situation would be if a Bill had been passed in Parliament without the required quorum being present.
The Chair responded that this Clause related to the processes of Parliament, and not for example, a member of the public sitting on the gallery of Parliament who would not be authorised to testify.
Mr M. Masutha (ANC) stated that the issue before the Subcommittee did not relate to freedom of speech, instead the limitation of evidence as referred to Clause 28. He added that the concept of evidence needed to be limited to Court proceedings and Tribunals only. As regards the admissibility of evidence he stated that this did not depend on who was, in fact, giving evidence, but whether or not permission to give such evidence had been granted. In conclusion, he stated that the purpose of this Clause was to protect the integrity of Parliament.
Mr Lever (DP) commented that public policy, as expressed by Professor Murray, disallowed an ordinary member of the public to give evidence on a Committee of Parliament in the case of criminal proceedings. He stated that the issue did not relate to the sovereignty of Parliament, but to democracy. In other words an ordinary member of the public should be allowed to attend Parliament without the fear of being prosecuted at a later stage. The Chair agreed and supported this view, but thought that the Subcommittee’s issue was totally different.
The Chair posed the following question to the Subcommittee for deliberation: "If we are protecting Parliament and its members as well as Parliament’s integrity, are we referring to people officially designated as such to testify or are we referring to everyone?" In answering this question, the Chair suggested that two parts to the Clause be incorporated as follows: i) that no member should be entitled to give evidence except when called upon to do so; and (ii) that the permission of the Speaker be obtained first.
Mr M. Masutha (ANC) applied the principle of companies and close corporations. He stated that in the case of companies a person employed by such a company would be duly authorised to testify on behalf of a company. In effect, the same principle should apply to this Clause. Ms Hangana commented on the former speaker’s opinion, asking if the Subcommittee was justified in comparing Parliament to that of a company.
Adv Meyer requested that the Subcommittee look closely at the intention of this section, as well as the purpose. He remarked that it was unconstitutional to prohibit members and officials from giving evidence in Parliament.
The Chair then asked the Subcommittee how legislation could be drafted to preclude the ordinary member of public from giving evidence.
The Chair concluded that the session was indeed fruitful. The Subcommittee was reaching the heart of the problems surrounding the Bill and that he would be reluctant to pass a law without understanding which policy decision had been taken.
The meeting was adjourned until the 2 October 2001 at 10h00.
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