OPENING REMARKS BY THE HON NN MAPISA-NQAKULA, MINISTER OF HOME AFFAIRS, ON THE OCASSION OF THE PRESENTATION OF THE CIVIL UNION BILL, 2006, THE IMMIGRATION AMENDMENT BILL, 2006 AND THE FILM AND PUBLICATION AMENDMENT BILL, 2006 TO THE PARLIAMENTARY PORTFOLIO COMMITEEE FOR HOME AFFAIRS, NATIONAL ASSEMBLY, 07 SEPTEMBER 2006

Chairperson, Hon HP Chauke

Honourable Members

Senior managers of the Department Members of the Media present

Stakeholders and Civil society representatives Friends

We have a rare opportunity today to present three Bills to the Portfolio Committee as recently passed by the Cabinet.

In presenting these Bills before the committee today, we are allowing a further process of consultation and scrutiny of these proposed pieces of legislation, and as can be expected we have high hopes that such consultation and engagement will serve to enhance the work already done by us in crafting these Bills.

I am therefore inviting Honourable members and members of the public to use this opportunity to share with us some of their views and opinions on fundamental issues that are addressed in the pieces of legislation.

I am quite aware that any kind of laws that are passed here in Parliament, tend to have an impact on the lives of people, more so if the legislation impacts on the private and personal aspects of people's lives such as some of the Bills we are introducing today.

It is for this reason that we have opted for a situation where adequate consultation can be allowed and that the final product of the law we shall pass, addresses the key challenges facing us in respect to the issues raised in these Bills.

The three proposed pieces of legislation are the Civil Unions Bill of 2006, the Immigration Amendment Bill of 2006 as well as the Film and Publication Amendment Bill of 2006. I will go through the key objectives and provisions of each Bill before my colleagues can make a more detailed presentation.

Civil Union Bill, 2006

The Department of Home Affairs, which registers marriages and appoints marriage officers, has always understood that the current laws that we have regulating marriage, will need to be relooked at if we are to satisfy the fundamental provisions of our constitution regarding rights of individuals. These rights would include the need to observe and respect different customary and religious provisions as well as the right of people to choose and associate freely.

In this regard it was understood that both the common law and the legislation that we administer may not stand the test or conform to the norms of our Constitution. Although with the advent of democracy we have seen some progress in certain areas, such as in the recognition of customary marriages,

there is more work to be done regarding the recognition of and regulation of marriage-like relationships between both same and opposite sex partners. The Department of Home Affairs therefore requested that the South African Law Reform Commission embarked on the Domestic Partnership Project in 1996, to consider the legal implications and parameters for us to give effect to some of these clear provisions of the constitution regarding marriage. . The SALRC consulted widely and conducted in-depth research before completing its report.

In the meantime, the common law definition of marriage was challenged in court, and on 1 December 2005, in the Fourie-case, the Constitutional Court handed down a judgment declaring that the definition of marriage under the common law and the marriage formula as set out in section 30(1) of the Marriage Act of 1961 (Act No 25 of 1961), were inconsistent with the Constitution and invalid to the extent that they failed to provide the means whereby same sex couples could enjoy the status and the benefits coupled with the responsibilities that marriage accorded to heterosexual couples. The Court ordered Parliament to correct these defects in the law, by 1 December 2006, failing which section 30(1) of the Marriage Act of 1961, will forthwith be read as including the words "or spouse" after the words "or husband".

The Court held that:

"in this respect it is necessary to bear in mind that there are different ways in which the legislature could legitimately deal with the gap that exists in the law" and stated as well that "given the great public significance of the matter, the deep sensitivities involved and the importance of establishing a firmlyanchored foundation for the achievement of equality in this area, it is appropriate that the legislature be given an opportunity to map out what it considers to be the best way forward. It would not be appropriate for this Court to attempt at this stage to pronounce on the constitutionality of any particular legislative route that Parliament might choose to follow".

Therefore after careful consideration of the various possible legislative options, Cabinet has agreed that the Civil Union Bill, 2006, be presented to Parliament. As Honourable Members are aware, the issue of same-sex partnerships is one of the issues on which many South Africans have very strong feelings. Parliament now has the responsibility to debate this Bill after having serious engaged with the public whom you represent. No doubt you will have to consider many representations regarding this Bill, bearing in mind too that we have until 1 December 2006 to pass the legislation.

Without going into the details, the Bill will give rise to the change in definition of marriage as currently provided in our law to recognise other partnership between same sex spouses.

Immigration Amendment Bill, 2006

The second piece of proposed legislation is the Immigration Amendment Bill of 2006.

The Immigration Act, 2002 was amended in 2004, and the amendments, together with new Regulations, came into effect on 1 July 2005. Although there have been a few implementation problems, my Cabinet colleagues and I agree that the overall policy framework for immigration management is sound. However, after having consulted with business and industry I have come to the conclusion that the period of time for which intra-company transfer work permits may be issued in terms of the Immigration Act - currently two years - is too short for the needs of multinational companies.

I am proposing that this period should be increased to four years. Unfortunately this change could only effected through amendment to the leg islation.

The Department's line function - the National Immigration Branch - and Legal Services have also identified the need for a few technical amendments to clarify certain procedures and permits, and to deal with the realignment of certain provisions of the Immigration Act.

For instance, the Bill introduces certain definitions such as the definitions of "affiliate", "branch" and "subsidiary" and furthermore amends the definition of "depart or departure" to make it clear that departure means exiting the Republic to another country.

The issue of authorisation of holders of visitor's permits to work is clarified by an amendment to section 11 of the Act. We are also proposing an amendment to allow us to issue appropriate permits to the spouse and dependant children who accompany the holder of a retired person - this is a gap that was identified.

The Film and Publication Amendment Bill

The main objective of the Bill is to amend the Films and Publications Act, 1996 (Act No. 65 of 1996), so as to insert certain definitions, amend the composition and provide for the functions and powers of the Board, provide for the appointment and powers of compliance officers, provide for the composition, functions, powers and management of the classification office and repeal certain Schedules to the Act.

The proposed amendments to section 2 of the Act would ensure that all publications, films and interactive computer games distributed in the Republic, regardless of the medium or format of such distribution, would be subject to the same principles and guidelines to serve the core objective of protecting children from potentially disturbing harmful and age-inappropriate materials. The amendment will further bring broadcasters of films within the scope of the Act.

I am sure that the new amendments to the Film and Publication Act will also generate a lot of public interest as witnessed since we publish the Bill, and once more I must appreciate this level of engagement so that we can all find the best solutions to one of the biggest issues affecting our society to day, the issue of the protection of children from exposure to violent and sexual abuse.

One of the issues that have raised serious debate is the intended removal of blanket exemption for newspapers on classification of material published. A newspaper will be required to apply for an exemption if it wishes to publish section 16(2) materials or materials coming within the definition of child pornography.

I will like to reemphasise the following, that it is not the intention of this government to reintroduce censorship and I know that all South Africans are aware of our government's stance of this issue. As already discussed, we all need to find a way in which publications are held responsible for the possible exposure of children to harmful material or material that encourages the abuse of children through child pornog raphy.

This is matter that I need us to continue engaging with during the public hearings of the portfolio committee, and I am still inviting all affected stakeholders to engage us on this matter, with a view to finding a practical solution.

Having said that, let me restate the rationale for the provision of section 16 in the new Bill:

The reason for imposing restrictions on what materials may be freely published and distributed is the risk of harm that certain kinds of materials pose to children in the relevant age groups. Government has a constitutional duty to protect children from exposure to materials that pose a reasoned risk of harm.

The blanket exclusion of newspapers allowed for a situation where newspapers may publish materials that pose a reasonable risk of harm to children, while other publications may not be able to because they subjected to classification by the board.

I am asking that both the portfolio committee and the affected stakeholders should look into this matter in so far as our shared responsibility to protect children. This responsibility is not just government's responsibility but for all of us.

I must also reemphasise our commitment to continue engaging stakeholders in finding a common approach to this issue and to make sure that as far as possible we do not appear to be solving one problem by creating a new one. This commitment on our part is very real.

I will now hand over to the Chief Director: Legal Services in the Department of Home Affairs to take you through the various Bills in more detail.

I thank you.

Confidential