Children’s Bill and Older Person’s Bill: briefing on changes

Meeting report

SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
12 November 2003
CHILDREN’S BILL AND OLDER PERSON’S BILL: BRIEFING ON CHANGES

Chairperson: Mr E Salojee (ANC)

Documents handed out:
Older Persons Bill [B68-03]
Briefing on Older Person’s Bill
Children’s Bill (As introduced in the National Assembly as a section 75 Bill) [B70-03]

Children’s Bill - certified copy (4 August version) with tracking of changes to split the Bill

Split Bill which deals with Section 76 issues (e-mail [email protected])
Briefing on Children’s Bill

SUMMARY
The Committee was briefed on the changes to the Older Persons Bill. The discrepancy in the age at which men and women are considered to have become Older Persons has been retained on the basis that the timing was not right to change the status quo. State law advisors noted that the discrimination might be challenged as unconstitutional.

The reason for splitting the Children's Bill was explained. The Committee discussed what version of the Bill had been used for the purposes of splitting it and if the recommendations of the SA Law Reform Commission had been retained.

It was noted that much concern had been expressed that the public should be given proper time to make inputs. It was agreed that the Committee deliberations would continue when Parliament went into recess.

MINUTES
The Chair explained that there had been some confusion about the Bills being considered, especially the Children’s Bill. The following documentation was required:
· Certified copy (i.e. the copy that has been certified, which is the 4 August version), and which tracks the changes in the split Bills)
· The split Bill which deals with Section 75 issues, which has been published
· The split Bill which deals with Section 76 issues
Due to time pressure, members had not received the correct documentation before the meeting.

Ms G Borman (DA) and other members expressed dissatisfaction at receiving documents only on arrival at this meeting.

Mr A Theron, Chief Director of Welfare Service, Department of Social Development (DoSD), suggested that the briefing begin by dealing with the Older Persons Bill.

Older Persons Bill
Mr Pierre Du Preez, Department legal drafter, briefed the Committee on the process of developing the policy which framed the Bill, its objects, content and major changes to the initial draft Bill.

It was agreed that Mr Du Preez would go through the clause headings, highlighting the areas in which changes had been made. One of these, in Clause 1, related to the discrepancy in the age at which men and women are considered to have become Older Persons.  In response to questions about why the discrepancy had been proposed, it was argued that:
· the timing was not right to change the status quo;
· the discrimination was positive and that there were valid reasons such as child bearing and rearing that meant that women required more support;
· the definition of Older Person in the Bill retains the current status quo, and there are both social and economic reasons for doing so;
· the Treasury has expressed concerns about the fiscal implications of 60 years being set as the entry point for both men and women;
· there are implications for access to the old age grant;

A state law advisor said that the discrimination might be challenged as unconstitutional. The Committee agreed to return to this issue once all parties had been consulted.

Clause 2 mentioned programmes for development of older persons by the DoSD alone or in consultation with other departments

Ms J Chalmers (ANC) said that the programmes seemed to be more of “wish list” than actual. She wondered whether it could be implemented, considering costs, and Ms TJ Tshivashe (ANC) whether rural people had been considered. Mr Theron said that the Cabinet and different departments, such as housing, transport etc had approved all recommendations of the Ministerial Committee and the legislation was intended to enable and facilitate the development of programmes in response to community needs, which would address also the needs of rural people.

Chapter 2 dealt with facilities and services and their registration, subsidies, compliance with national norms and standards and monitoring. Many of the powers vested with the Minister could be delegated to provincial departments. Ms Tshivase expressed concern about the capacity of social workers to monitor registered facilities in Clause 10. Mr Theron acknowledged that there were not enough social workers and said that the DoSD was implementing strategies to attract and retain them. In addition, the DoSD would enter into partnerships with non-governmental organizations.

Clause 18 in Chapter 3 dealt with Older Persons in need of care and protection. A major change was that provision for an ombudsperson for older persons was abandoned. In response to a question from Mr ML Da Camara (DA), Mr Theron said the Public Protector would fulfill this function. The establishment of a register of abuse would be an additional safeguard. Mr Da Camara said that public protectors were unable to cope with their caseloads and that “a pecking order” of complaints was usually established in their offices. He felt that older persons would be very low on this hierarchy. Mr du Preez said that there were dedicated ombuds for many sectors and that the public protectors’ caseloads should not be too high. Mr Saloojee asked how many complaints of abuse had been received. Mr Theron said that there were not many because older people were not using the public protector. Ms Chalmers said that older people were challenged even to recognize that they were being abused, and that a dedicated ombudsperson was essential. Mr Theron said that the decision had been based on costs, and that a dedicated task team, within the Minister’s advisory board could perhaps carry out this function.

The meeting adjourned for a short while for the Chair to make a decision regarding the agenda. On return, he said that the Committee was not being given sufficient information on what its tasks were and that information had been confusing and contradictory. He would get clarity after the meeting. There had been a suggestion that, because of time constraints, the Older Persons’ Bill could be first referred to the National Council Of Provinces while the National Assembly focused on the Children’s Bill. Much concern was expressed that the public should be given proper time to make inputs. It was agreed that, although Parliament would adjourn, the work would go on.

Children’s Bill - explanation of the splitting of the Bill
Mr Theron apologized for the fact that two versions of the Bill were being handed out but the Office of the State Law Advisors had declared the certified copy of the Bill to be a mixed bill (containing both national and provincial competences in one Bill) which needed to be parted and put into two separate Bills.

Ms Ayesha Johaar (State Law Advisor) explained that the Children’s Bill had had 23 chapters in August 2003. The Office of the State Law Advisor had said that some of the powers fell in the national sphere of government but some, like places of safety and shelters fell under the jurisdiction of the provincial welfare departments. The Rules of Parliament and the Constitution did not provide for mixed bills, therefore State Law Advisors had advised that the bill should be split into two, dealing with the Constitution's Section 75 [national competences] and Section 76 {provincial competences] matters separately.

Mr Theron said that this would result in a Bill (containing Section 75 matters) followed by an Amendment Bill (containing Section 76 matters) but one Act.

Mr Da Camara wanted to know what had been deleted since he had last been familiar with the Bill. There was some discussion around this request.  The Chair and others held that this would meant that the work went backwards and Mr Theron said that the omissions were irrelevant to the task of formally engaging with the current Bill.

Mr Da Camara accepted the difference between formal and informal engagement but said that the current version was so different from the version put forward by the SA Law Reform Commission (SALRC) that it was important to be aware of the differences. If the SALRC recommendations made after a meeting in Gordon’s Bay, were omitted, it seemed to make irrelevant the work of the Committee undertaken with other parties.

Mr Du Preez said that there were two ways of splitting a Bill:
· two different substantive Bills, one dealing with section 75 issues and one dealing with section 76 issues, could have been developed, resulting in two Acts or
· a section 75 Bill could be dealt with in the current session, and an amendment to it brought once the new Parliament and Portfolio Committees convene, which would amend the section 75 Bill passed in the current session and allow a mixed Act to be the final product. [Mixed Bills are not possible, but mixed Acts are].

These two options were put to the DoSD, which saw one composite and holistic Children’s Act as the end-product

There was then some discussion amongst Committee members on omissions and whether the fact that the Bill had been split meant that nothing was actually being taken out of the Bill, on whether it has simply been split, and whether the so-called “Gordons Bay 2” version of the Bill was the one used for the split.

It was clarified that:
· The "Gordon’s Bay 2" version of the Bill was changed in response to suggestions made at the workshop, which were incorporated into final draft of the SALRC Report. The SALRC had advised that there should be an overall policy framework, which would be provided for, but not included in the Bill. Issues relating to schooling and health were omitted because they were catered for in other legislation. 
· The DoSD then finalised the Bill and sent it to Cabinet, who referred it back for consultation with other departments implicated.
· This led to a number of further changes being made. 
· The subsequent version was presented to Parliament, and then more changes were made and approved by Cabinet. 
· The inputs of NGOs and civil society must be considered, but only once the Bill has come from Parliament
· The section 75 Bill would be passed and the process would be completed by Parliament in the current session. Thereafter, the amendments would be considered when Parliament reconvened. · Public hearings would be on the certified version of the composite Bill. The amendments, which would come later, would allow the framework to be re-examined, and fleshed out.
· The split would not mean that the two components of the former composite Bill would be looked at separately – it was clarified that the Committee would have to look at the entire document holistically. The split was only necessary because of time constraints and the rules of Parliament.
· The discussion and debate were likely to focus on the excisions from the composite Bill.

Mr Theron agreed to collate existing public comment and make it available to the Committee. Discussion then focused on whether a four-week notice period for December hearings would be possible, given that committee members would need time to prepare for the upcoming elections and had other commitments which might preclude their attendance at the hearings. A three-week notice period might be possible, and the length of the hearings would be determined by the number of requests to make oral submissions that were received.

Hearings for the Older Persons’ Bill could be held in December 2003 and the hearings for the Children’s Bill in January 2004, although Prof L Mbadi (UDM) said that this would increase expenses.

The concerns for the need to allow adequate public participation, and other concerns were noted by the Chair, who undertook to be sensitive to them, but pointed out that he would need to confer with other Committees and relevant people before coming to a final decision.

Finally, it was agreed that the DoSD will commence the process of going through the detail of the Children’s Bill with the Portfolio Committee members on Friday 14 November. The Chair would ascertain and advise on the focus, but his suggestion would be that the total Bill should be considered.

The meeting adjourned.