12 September 2006
PROPOSAL TO NCOP SELECT COMMITTEE: SOCIAL SERVICES ON TAKING THE CHILDREN'S AMENDMENT BILL FORWARD FROM NCOP TO PROVINCIAL LEGISLATURES
1. BACKGROUND
The Children's Act, Act No 38 of 2005 is the culmination of a long process of consultation and deliberations in Parliament. In 1997, the then Minister of Social Development requested the South African Law Reform Commission (SALRC) to review the Child Care Act of 1983 and to make recommendations. The SALRC finalised its report and proposed a draft Children's Bill which was approved by Cabinet late in 2003 and introduced in Parliament. The Bill then became the subject of an extensive process of deliberations and public hearings.
In the meantime the Department of Social Development (DSD) took the consultation process further by establishing a National Steering Committee with representation by the national Departments of Justice and Constitutional Development, Education, Health, Labour, South African Police Services, Home Affairs, Office on the Rights of a Child in the Presidency and National Treasury to engage with Parliamentary Committees on its responsibilities in relation to this Bill.
The process started nine years ago and the comprehensive Bill has not been finalised yet. The plight of children, especially orphaned and vulnerable children affected by HIV/AIDS remains a national priority on Government's Agenda. It is for this reason that DSD implores the NCOP's highest consideration and is seeking cooperation and support in taking the process forward in the most effective manner to enhance participation on all levels, from the NCOP to provincial legislatures.
2. SCOPE AND OBJECTIVE OF BILL
The Children's Amendment Bill, B19-2006, can be described as a complex and integrated Bill with the main objective of "amending" the Children's Act, Act No 38 of 2005 by inserting the section 76 provisions that deal with welfare services as delivered by the provinces. This Amendment Bill therefore envisages to-
During the Orphaned and Vulnerable Children (OVC) Conference earlier in July 2006, hosted in Midrand, the Chairpersons of the Standing Committees on Social Development from 8 provincial legislatures indicated the need to interface with the Department on a more integrated level to understand the purpose and intent of the Children's Amendment Bill.
3. PROCESS
The Minister of Social Development has decided to introduce the Section 76 Children's Amendment Bill in the NCOP as the first House whilst being fully aware of the extensive nature and inherent intricacies of processing national legislation in the NCOP. Further hereto, the powers and autonomy of the provincial parliaments and its presiding officers are respected.
It is therefore essential that the NCOP Select Committee adopts its own strategy in taking this process forward.
4. PROPOSAL
The following is presented as a mere proposal for consideration by the NCOP Select Committee: Social Services, to seek consensus of the Chairperson of the NCOP and should not be seen as interference in the powers of Provincial Legislatures. This is merely a preparatory process to increase the level of engagement by allowing provinces to host effective public hearings and to present its mandates to the NCOP.
It is deemed a heavy task to expect Members of Parliament as permanent delegates in the NCOP representing provinces, to independently brief their respective Provincial Legislatures on the content, nature and scope of the Children's Amendment Bill. DSD only managed to have the Children's Act, Act 38 of 2005 passed by Parliament with the support of a national steering mechanism wherein relevant government departments were represented and were allowed to become active participants responding to questions on issues of policy and implementation in the development of legislation.
The purpose of this proposal is therefore to:
1) seek collaboration and buy-in from the NCOP to acknowledge the impact and cross cutting issues contained within the Children's Amendment Bill and to consider a proposal wherein the Executive seeks to enhance the level of intersectoral collaboration between the NCOP and Provincial Legislatures.
2) propose that the NCOP, in consultation with the Provincial Legislatures, identify a minimum of two working days with consideration to the NCOP committee and provincial legislatures committee cycles to introduce an orientation discussion on the Children's Amendment Bill and its linkage to the Children's Act,2005.
3) Present a comprehensive costing report on the Children's Bill. [Provincial treasuries may also be interested to take note of this].
DSD is willing to offer the following:
1 ) To host the envisaged workshop aimed at the members of the NCOP Select Committee on Social Services and the nine Standing Committees on Social Development in the provinces. [NCOP reserves the right to identify and delegate researchers to attend].
2) Supported by the National Steering Committee, to brief the relevant Members of the Provincial Legislatures on the content and objectives of the Children's Amendment Bill.
3) This workshop will be supplemented with a comprehensive session on the costing of the Children's Bill (S 75 & S 76) as required by the Public Finance Management Act, 1999.
It is proposed that this workshop precedes the process wherein Provincial Legislatures call for public participation.
This workshop will also add value in terms of Parliament's oversight and executive responsibilities by identifying areas for monitoring and evaluation on provincial and local government levels.
The Chief Directorate: Children in the Department of Social Development have indicated that it will provide funding for the expenditure related to the hosting of the workshop in Pretoria. The location of Gauteng as a preferred venue is taken with due consideration to the closure of the National Parliament's Programme and the proximity and location to include all other provinces.
Expenses by DSD shall include all presentation material and conference venue and delegate fees. Expenses related to accommodation and travel of Members of the
Provincial Legislatures have not been budgeted for and remains the responsibility of the respective province.
Experience has taught Government that legislation can be challenged by civil society when it is of the view that the level of public consultation is deemed to have been insufficient. The purpose of this proposal is specifically aimed at increasing the level of participation equally in all provinces and to advance cooperation in legislation to a higher level of cooperative governance.
5. COSTING OF COMPREHENSIVE CHILDREN'S BILL
The functional scope of rendering services to children is a cross cutting issue with responsibilities vested in the social cluster of government including the Departments of Justice and Safety and Security. During 2004 DSD appointed Cornerstone Research through a tender process to do a comprehensive costing of the Children's Bill. The National Steering Committee on the Children's Bill received a full presentation on the final costing of the Children's Bill on 18 July 2006. In terms of the Public Finance Management Act, 1999 the Legislature, including the provincial legislatures, are compelled to take cognisance of the financial implications when considering any legislation referred to it.
The development of national and provincial implementation plans is part of an integrated process with the National Steering Committee and workshops commence on 16 August 2006.
The Department is expected to make a formal presentation to Parliament on the costing of the Children's Bill. The National Assembly's Portfolio Committee on Social Development has expressed its interest in the costing of the Children's Bill and should be considered for invitation to this process.
6. TRANSLATION _2ND LANGUAGE REQUIREMENT
The Children's Amendment Bill has been outsourced to Bangula Language Centre early in September 2006 for translation in IsiZulu. The translation is expected at the end of September 2006 and can be made available as a draft to coincide with public hearings in the provinces during October 2006.
7. NCOP LEGISLATIVE CYCLE: MAPPING
The NCOP normally allows for a cycle of six weeks for a section 76 Bill. There is however, no guarantee that the NCOP will complete its work on the Children's Amendment Bill in such a short period. DSD acknowledges the complex nature of this bill. [For purposes of the table below, "week" refers to a process and not necessary a 5 day week].
|
NCOP |
ACTIVITY |
|
Week 1 |
Introduction and referral of Bill DSD to brief Select Committee on its proposal |
|
NCOP/ DSD proposal |
Joint 2-3 day workshop with all provincial standing committees on the objectives of the bill, including costing. Recommended prior to public hearings. Recommended that NA PC SocDev also attend for information only. |
|
Week 2 |
Provincial Committees to meet in provinces Permanent delegates to brief provinces (supported by DSD National Steering Committee Representatives from Provinces) |
|
Week 3 |
Provinces to submit soft mandates to the NCOP |
|
Week 4 |
NCOP Select Committee to consider soft mandates Deliberations and negotiations on Bill |
|
Week 5 |
Bill circulated to provinces for final mandates Provinces reporting back to NCOP Select Committee Select Committee adopts its report on the Bill |
|
Week 6 |
NCOP schedule plenary*and debate
|
It is proposed that the joint workshop precedes the process wherein Provincial Legislatures call for public participation. This is part of the preparatory process to increase the level of engagement by allowing provinces to host effective public hearings and to present its mandates to the NCOP.
8. RECOMMENDATION
In the interest of cooperative governance and finding a feasible means of processing this legislation, it is recommended that the Executive need to engage with the NCOP on a formal level to take the Children's Amendment Bill forward into the Provincial Legislatures.
Should this proposal not be accepted by the NCOP, it implies that DSD needs to engage with Provincial Legislatures on a one to one basis until the process has been completed. The capacity within provincial departments of Social Development is too limited to delegate this function. The legislation remains a functional area of concurrent national and provincial legislative competence.