ATC160303: Report of the Portfolio Committee on Social Development on the Children’s Amendment Bill [PMB 2 – 2015], dated 02 March 2016

Social Development

Report of the Portfolio Committee on Social Development on the Children’s Amendment Bill [PMB 2 – 2015], dated 02 March 2016
 

The Portfolio Committee on Social Development (“the Committee”), having considered the Children’s Amendment Bill [PMB 2 – 2015] (National Assembly –section 75), referred to it and classified by the Joint Tagging Mechanism (JTM) as a section 75 Bill, reports as follows:

 

1. The Children’s Amendment Bill [PMB 2 – 2015], a Private Member’s Bill, was tabled and referred to the Committee on 18 February 2015. The Committee met with the sponsor of the Bill, Mr M Waters, MP, on 12 August 2015, in order to receive a briefing on the Bill.
2. The Children’s Amendment Bill [PMB 2 – 2015] (hereinafter referred to as “the Private Member’s Bill”) seeks to amend section 120 of the Children’s Act, 2005 (Act No. 38 of 2005), so as to, inter alia, provide that an adult convicted of any offence against a child in terms of the Sexual Offences Act, 1957 (Act No. 23 of 1957) or the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (Act No. 32 of 2007), be deemed to be found unsuitable to work with children; and to provide that any person convicted of these sexual offences mentioned above or any common law offence of rape or indecent assault during the five years preceding the commencement of the Children’s Act, 2005, is deemed to be found unsuitable to work with children, unless such a person was a child at the time of the commission of the offence. In addition, the Private Members Bill also seeks to address the principles set out in the Constitutional Court’s judgment in the J v NDPP and another, 2014, CCT 114/13 matter by inserting a new subsection into section 120 of the Children’s Act, 2005, so that a child, upon conviction of any of the offences mentioned above, be given an opportunity to make representations as to why he or she should not be found unsuitable to work with children.
3. On 5 August 2015 the Committee received a briefing from the Department of Social Development on the two Children’s Amendment Bills introduced by the Minister of Social Development, namely the Children’s Amendment Bill [B13 – 2015] and the Children’s Second Amendment Bill [B14 – 2015]. Both these Bills were tabled and referred to the Committee on 20 May 2015.  During this briefing, the Committee was informed that the Children’s Amendment Bill [B13 – 2015] (hereinafter referred to as “the Executive Bill [B13 – 2015]”), amongst amending other sections of the Children’s Act, 2005, also seeks to amend section 120 of the Children’s Act, 2005. 
4.  On 28 October 2015, the Committee received responses from the Department of Social Development and the Department of Justice and Constitutional Development on the Private Member’s Bill. During this briefing, the Department of Social Development highlighted that the Executive Bill [B13 – 2015], introduced by the Minister of Social Development, does also seek to amend section 120 of the Children’s Act, 2005, in a similar manner as the Private Member’s Bill, save for some differences, for example, the Executive Bill [B13 – 2015] includes that a person convicted of the offence of possession of child pornography must be deemed to be unsuitable to work with children while the Private Member’s Bill does not include this offence. However, on the other hand, the Private Member’s Bill includes the offences committed under the Sexual Offences Act, 1957 (Act No. 23 of 1957) while no such reference is included in the Executive Bill [B13 – 2015].
5. With regard to the similarities, the Department of Social Development indicated that, firstly, the Executive Bill [B13 – 2015] also amends section 120 of the Children’s Act, 2005, by introducing a “deeming” provision – namely, that a person must be deemed unsuitable to work with children on conviction of certain listed offences.  Secondly, the Executive Bill [B13 – 2015], similarly to the Private Member’s Bill, also seeks to address the principles set out in the Constitutional Court’s judgment in the J v NDPP and another, 2014, CCT 114/13 matter and attempts to align the Children’s Act, 2005, with the procedure provided for in the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, by inserting a new subsection into section 120 of the Children’s Act, 2005, so that a child, upon conviction of any sexual offence, is given an opportunity to make representations as to why an order of unsuitability to work with children should not be made. 
6. However, the Department of Social Development pointed out that the Executive Bill [B13 – 2015], in addition to amending section 120 of the Children’s Act, 2005, seeks to also amend other sections of the Children’s Act, 2005, while the Private Member’s Bill only amends one section, namely section 120, of the Children’s Act, 2005. The Department of Social Development further indicated that the differences between the Private Member’s Bill and the Executive Bill [B13 – 2015] can be bridged and that it would be ideal to deal with one set of amendments regarding the Children’s Act, 2005.
7. The Department of Justice and Constitutional Development briefed the Committee and made proposals on how best to align section 120 of the Children’s Act, 2005, with the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, with regard to the procedure to be followed before a child offenders’ particulars are included in the National Child Protection Register. In this regard, the Committee was briefed on the recent amendments that were made to section 50(2) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007. These amendments were passed in June 2015 in order to bring the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 in line with the Constitutional Court’s judgment in J v NDPP and another, 2014, CCT 114/13. The Department of Justice and Constitutional Develoment also made proposals on how to amend the definition of “sexual offence” so that it includes the completed list of sexual offences that can be committed in terms of the Sexual Offences Act, 1957 and also in terms of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007. In addition, a proposal was also made to include in this definition a reference to possession of child pornography and the common law crime of rape and indecent assault.
8. Mr Waters, the sponsor of the Private Member’s Bill, after hearing these briefings, indicated that he would be pleased if his proposals contained in the Private Member’s Bill were incorporated into the Executive Bill [B13 – 2015].
9. Having deliberated on the briefings and the responses received, the Committee adopted a motion that the proposed legislation is not desirable for the following reasons:
   1. Firstly, the Executive Bill [B13 – 2015], currently before the Committee, also seeks to amend section 120 of the Children’s Act, 2005, in a similar manner as proposed in the Private Member’s Bill;
   2. Secondly, the Department of Social Development indicated that the differences between the Private Member’s Bill and the Executive Bill

[B13 – 2015], are not fundamental and can be bridged and incorporated into the Executive Bill [B13 – 2015];

1. Thirdly, given that the Executive Bill [B13 – 2015], deals with amending other sections of the Children’s Act, 2005, in addition to amending section 120, it would be more logical to proceed with the Executive Bill [B13 – 2015] and incorporate, where appropriate, the proposals of the Private Members Bill into the Executive Bill [B13 – 2015].

1. The Committee is therefore of the opinion that it should not proceed with the proposed legislation, namely the Children’s Amendment Bill [PMB 2 – 2015].

 

Report to be considered.