ATC150520: Submission of a Legislative Proposal: Memorandum in terms of Rule 238 of the Rules of the National Assembly by the Portfolio Committee on Home Affairs, dated 19 May 2015

Home Affairs

SUBMISSION OF A LEGISLATIVE PROPOSAL: MEMORANDUM IN TERMS OF RULE 238 OF THE RULES OF THE NATIONAL ASSEMBLY BY THE PORTFOLIO COMMITTEE ON HOME AFFAIRS, DATED 19 MAY 2015

 

The Portfolio Committee on Home Affairs is hereby requesting the permission of the House in terms of Rule 230(1) for the introduction of the following legislation in the House, namely the Refugees Amendment Bill, 2015:

 

(a)     Purpose of the Bill

 

The purpose of the bill is to amend the Refugees Act, 1998 (Act No. 130 of 1998) so as to confer a discretion upon the Refugee Appeals Authority to allow the public and the media access to its proceedings in appropriate cases.

 

(b)     Background and Objects of Bill

 

1. On 27 September 2013, the Constitutional Court, in the Mail and Guardian Media Limited and Others v MJ Chipu and others CCT 136/12 [2013] matter (“the Chipu case”), declared section 21(5) of the Refugees Act, 1998, inconsistent with section 16(1)(a) and (b) of the Constitution to the extent that it precludes members of the public or the media from attending proceedings of the Refugee Appeal Board in all cases and fails to confer a discretion upon the Refugee Appeal Board to allow the public and media access to its proceedings in an appropriate case.  The declaration of invalidity was suspended for a period of two years from the date of the order to enable Parliament to correct the constitutional defect in section 21(5) of the Refugees Act, 1998.  Pending the correction of the defect, or the expiry of the two-year period, whichever occurs first, the Constitutional Court provided a temporary reading-in order into section 21(5) of the Refugees Act, 1998, conferring a discretion on the Refugee Appeal Board, on application and on conditions it deems fit, to allow any person to attend or report on its hearings.  The two-year period ends on 26 September 2015.

 

1. The Bill will address the Constitutional Court judgment in the Chipu case by amending section 21(5) of the Refugee Act, 1998, so as to confer a discretion on the Refugee Appeals Authority (the name of the Refugee Appeal Board after the Refugee Amendment Act, 2008 (Act No. 33 of 2008)), on application and on conditions it deems fit, to allow any person, including the media, to attend or report on its hearings.  The Bill will further provide that this discretion conferred on the Refugee Appeals Authority must be exercised with due regard to relevant factors, such as whether the asylum seeker consents to such third party’s attendance or access; or whether it is in the public interest to allow such attendance or reporting after taking into account all relevant factors. 

 

 

1. The Bill will also deal with necessary consequential amendments and transitional arrangement in order to effectively amend section 21(5) as set out above.

 

(c)     Financial Implications for the state

 

The proposed legislation will not lead to any expenditure for the state.

 

Report to be considered