FILMS AND PUBLICATIONS Amendment Bill

What to address Regulatory impact assessment (RIA) implications to the legislative process: S 18 of the Traditional Leadership Framework Act and what pertains to customs, traditions or customary law iro this Bill Constitutional stakeholder concerns In brief how the Print Media judgment impacts on this Bill

Departmental responses The Department’s proposed amendments Are they constitutional and legally sound How has the stakeholder concerns been addressed by the Department if not is there a way forward? Conclusion ???> the proposed A list

LEGISLATIVE PROCESS INTRODUCTION of the Bill NA Rule 268 & 269 read with s73 of the Constitution & NA Rule 276 & 279 RULES: NA and Joint Rules where relevant MOTION OF DESIRABILITY/ Assembly's permission NA Rule 273(4) (committee or member Bill) Exec Bill motion of desirability= is on 1st reading NA Rule 285 and NA 286(4)(i)&(j) after due deliberation by the Committee BILL PROCESSING ONCE INTRODUCED: NA Rules chapter 13 Interlink between processing a legislative proposal (Bill) and exercising oversight as Parliament over the Executive (s 55(2) obligations)

RIA /socio-economic impact assessment Parliament/ legislature and direction Executive as government arm Legislative process Public at large and the law Finding your way in the regulated space PASSWORDS Passwords are an important aspect of computer security Some of the more common uses include: Novell accounts, web accounts, email accounts and screen saver protection. 5

Explaining RIA It is now called the socio-economic impact assessment which is to be conducted by the Presidency Department of Planning, Monitoring and Evaluation (used to be known as RIA) It is a concept approved by Cabinet in February 2015 to replace RIA Its main objective is to assists all departments formulate better policies, legislation and regulations whilst ensuring compliance and alignment with national priorities.

RIA explained It determines and speaks to anticipated and associated risks and unintended consequences on how to minimise them through this process. As per Cabinet decision it then required that all draft Bills and regulations be assessed following this process. Accordingly Cabinet approval cannot be obtained for the draft Bill without this certificate of a confirmed assessment.

Constitutional issues Section 75 ambit and extent of Bill Referral to the National House of Traditional Leaders s18 of TLFA and NA Rule 278 Constitutional restriction or limitation of s 16: right to freedom of expression Content and context of the Bill iro s16 of the Constitution and clause 16 of Bill 8

Clause 17-18 What does it say? What is the legal impact? What concerns the end users and those to whom law will apply?

Clause 23 & 24 & 25 The amendment of section 24 of the Films and Publication Act (principal Act) Impact of the amendment to s 24A to the justice system and public at large Does the amendment amount to a lawful and justified limitation to s 16 right to freedom of expression? The fines and imprisonment as stipulated does it correspond with the Adjustment of Fines Act? Do not share Parliamentary passwords with anyone, including administrative assistants or secretaries. All passwords are to be treated as sensitive, Confidential Parliamentary information Do not write passwords down and store them anywhere in your office. If an account or password is suspected to have been compromised, report the incident to ICT and change all passwords

Continued clause 25 &26 to 27 How do these changes impact on the justice system and the criminal justice system? The new insertions of proposed s 24 D, 24E, 24 F and 24 G? Anything to say on other provisions of the Bill?

PRINT MEDIA CC judgment on the restriction or limitation of s16: right to freedom of expression in media publications Section 16 must be read together with 24A Principal Act: WHY? What is not classified in line with s 16 of the Principal Act is either prohibited or becomes an offence susceptible to a penalty if as a publication it is distributed, exhibited or made a film, game or some form of publication  

Judgment cont… Print Media judgement confirmed that section 16(1) and 16(2)(a) of the Films and Publication Act is constitutional invalid because they are unconstitutional in that their effect is to unlawfully infringe on the right to freedom of expression and hamper democracy without a lawful limiting justification. See paragraph 41 – 78 of the judgment.

Judgment cont… Any administrative imposed prior publication classification in the scheme suggested by the Act (prior legislative restraint) is a problem because it is vague and has an overbreadth that cannot be contained but self classification with a proper criteria on the requirements and self imposed to ensure protection of all concerned is admissible. Hence constitutional invalidity arise from the vagueness and overbreadth of the classification process

Prior restraint justification There must be a balancing of scales between the right to express yourself and the state’s right to protect its citizens and regulate them where necessary. Hence leading to the appropriate lawful and necessary limitation: why these new provisions? There must never be a drastic interference with freedom of expression especially in a democratic country

Crucial finding The CC confirmed that s 16(2)(a) which relates to the publication restraint in respect of any form of sexual conduct that violates human dignity does unjustifiably limits the right to freedom of expression because of the required administrative prior classification scheme and therefore could not stand constitutional muster. Para 46. Para 51: Films and Publications Act s 16 creates a complex evaluation and classification system that needs be done prior publication

Finding conti… Thus in a way, s 16 of the Principal Act did regulate the right to freedom of expression which is not an obligation stemming from the Constitution. The court said therefore regulating such a right means there is a form of limitation imposed. The court said s 16 enables our human nature anyway as social beings that must communicate and form personal opinions and ideas and share them. Para 55 outlines purpose of Act

Purpose of Act in relation to children Does Chapter 3 of the sexual offences Act not meet the purpose in respect of protecting children from sexual abuse? ?? Main purposes of the principal Act were to (a) provide consumer protection to those who uses internet and online publications, (b)protect children from harmful exposure or age-inappropriate material and lastly (c) ban and prohibit child pornography.

Does the Bill alter any ? “Advocates” means to support or recommend publicly, plead for or speak in favour of something whilst “amounts to” means the actual conduct as listed will become propaganda and so the end result achieve what is prohibited Is the principle of legality breached and does the current content of the Bill not still unjustifiably limit the right to expression and equality? Chapter 3 of the Criminal Law Sexual Offences and related matters Amendment Act 32 of 2007 SECTION HEADING G

QUESTIONS