6 November 2015: Desiree Swartz – Parliamentary Legal Adviser Presentation to the PC on Police Legislative processing of a Private Member’s Bill 6 November 2015: Desiree Swartz – Parliamentary Legal Adviser

Introduction The legislative processing of a private member’s bill is regulated by the Interim measures for the introduction and consideration of private members’ bills Tabled in the ATC of 20 November 2012 Authority to introduce Member may introduce any bill, except money Bills and section 214 Bills (bills that deal with the equitable shares and allocation of revenue) A bill dealing with substantially the same subject matter may not be introduced more than once in the same annual session

Pre – introduction stage The Bill must comply with all the formal requirements set out in Rules 237 and 241, while a bill seeking to amend the Constitution must also comply with Rule 258 The member must publish the explanatory summary of the bill or the bill as it is to be introduced in the Government Gazette, The publication may contain an invitation for public comment to be submitted to the Secretary to Parliament. The Secretary to Parliament is liable for costs incurred in the publication of bills.

Introduction stage The member must submit to the Speaker the following: A copy of the bill or, if the bill as it is to be introduced was published in the Gazette, a copy of the Gazette; A copy of the explanatory summary if the bill was not published, and A supporting memorandum which must explain the objects of the bill, give an account of the expected financial implications for the State and state the proposed classification of the bill The introduction of the bill will be published in the Announcements, Tablings and Committee Reports. The bill is thereafter deemed to have been read a first time. The bill together with all relevant documentation is thereafter referred to the relevant committee for consideration and report.

Committee consideration of private member bills The Interim measures provides that the committee must— provide reasonable notice to the member in charge of the bill before it considers the legislation; and after due deliberation, consider a motion of desirability on the subject matter of the bill. The Committee’s initial consideration of a private members bill is intended to be on the principle or subject of the bill. The motion of desirability is decided on this basis. The Committee may, however, only consider a motion of desirability after due deliberation. The term due deliberation is not defined in the Interim measures, however there are a number of practices derived from previous considerations of private member’s Bills.

Committee consideration of private member bills - Cont First, it would be expected that the Committee allow the member responsible for the Bill an opportunity to explain and motivate for the legislation. This could, for example, include details of stakeholders consulted in the preparation of the Bill; a summary of the public response to the published Bill; and an explanation of the anticipated costs of the bill to the State. Best practice would also require the the Committee to facilitate an engagement with the relevant department or agency on the need for, and practicability, of the Bill. It might be that the government intends introducing similar legislation in the near future, or the policy direction may be very different from the policy of government.

Committee consideration of private member bills - Cont The Committee may also decide to have public hearings for those who have made submissions on the Bill when it was initially published in the Government Gazette. It may at the same time invite any other interested parties to make a submission. Further guidance on what to take into account when considering the desirability of the Bill can be taken from the Rule 235A of the 7th Edition of the Rules of the National Assembly. It is conceded that the Constitutional Court in the case of Oriani-Ambrosini, MP v Sisulu, MP Speaker of the National Assembly declared this rule constitutionally invalid and severed in its entirety, however the Court did state the following at para 79:  “This Rule [Rule 235A} is to be severed only because it is meaningless in the absence of Rule 235, to which it owes its existence. This must, however, not be understood as a pronouncement on the constitutional validity of its substance, for that issue does not arise.” [own emphasis] It is therefore submitted that the guidance provided in Rule 235A may be used by the Committee when it decides on the desirability of the Bill. 

Committee consideration of private member bills - Cont Rule 235A listed the following as factors that had to be taken into account in its consideration. Whether the Bill— goes against the spirit, purport and object of the Constitution; seeks to initiate legislation beyond the legislative competence of the Assembly; duplicates existing legislation or legislation awaiting consideration by the Assembly or Council; pre-empts similar legislation soon to be introduced by the national executive; will result in a money bill; or is frivolous or vexatious.” Once the committee has considered the factors set out above it would be in a position to assess the general feasibility of the Bill and the motion of desirability.

Committee consideration of private member bills - Cont If the motion of desirability is rejected the Committee must immediately table its report in the House. If the motion of desirability is adopted, the Committee can proceed to consider the details of the Bill in the normal way. This would likely include facilitating wider public participation whereby the Committee calls for more public comments. The Committee must thereafter report on the Bill to the House The Bill is thereafter placed on the Order Paper for its second reading. Thank you