Films and Publications Amendment Bill: adoption

HOME AFFAIRS PORTFOLIO COMMITTEE
31 May 2007
FILMS AND PUBLICATIONS AMENDMENT BILL: ADOPTION

Documents handed out:
Films and Publications Amendment Bill [B27B-2006]

Relevant documents
Working draft of Films and Publications Amendment Bill Part1 & Part2
Films and Publications Amendment Bill [B27-2006]
Films and Publications Act of 1996
Films and Publications Amendment Bill Minister’s Speech & Second Reading Debate

Audio Recording of the Meeting

SUMMARY
The Committee adopted the Films and Publications Amendment Bill [B27B – 2006] with a last minute amendment that was proposed by the ACDP. The amendment ensured that there was absolute certainty about the exemption from pre-publication classification qualifying newspapers enjoyed. The DA objected to the Bill saying that it was unconstitutional in that it required pre-publication classification, and attempted to amend the Constitution through a too broad definition of hate speech. The ACDP had reservations about the broadness of the hate speech definition, but emphasised that they did not object to the Bill. The Chairperson appreciated the work the Committee and all other stakeholders had put into the Bill and hoped that there would be continued interaction between the media and the Committee. He added that the Committee was still not satisfied that the legislation did enough to address the matters of concern. More amendments might follow at a later stage.

MINUTES
Opening remarks
The Chairperson announced that the Bill would be finalized at that day’s meeting, and adopted.. It had been a huge task and the Committee had done much work to arrive at that point.

The Chairperson brought Members attention to a number of corrections that had to be made to Clause 29 of the Bill, which would be inserted after Section 24 of the principal Act. The State Law Advisor (SLA) had made certain omissions and that had now been corrected. That clause would now read: “except with respect to broadcasters that are subject to regulation by the Independent Communications Authority of South Africa, not been classified by the board”

Mr S Swart (ACDP) sought permission to raise an additional matter. He felt that the words “and newspapers” contemplated in Section 16(1) and (2) be inserted. This would not change the principle but made clearer that they were also excluded.

The Chairperson was concerned that the Member was raising a critical point after the Committee had agreed on the previous day that it was satisfied that all its concerns had been addressed. He gave other Members opportunity to respond.

Mr F Beukman (ANC) recalled that two days earlier the Committee had agreed that the State Law Advisor’s opinion would be sought on the constitutionality of the Bill. He felt that if the Bill before the Committee now was constitutional, then the ANC was satisfied with it. He felt that newspapers were clearly defined and he did not know whether repeating the same term would have a serious effect.

The Chairperson agreed that Section 16 was sufficient.

Mr M Swart (DA) agreed with Mr Swart (ACDP). The heading of the clause referred to publications, and he felt that inserting the proposal would not change anything but would make the provision clearer.

The Chairperson was curious as to why the proposal should be inserted if it would make no difference to the legislation.

Ms S Kalyan (DA) thought that the proposal would make a material difference in that the exemption in Section 16(1) referred to the classification of publications. Mr Swart (ACDP) was referring to a section that contained prohibitions, offences and penalties. These were two completely different components of the Bill and therefore she supported Mr Swart’s (ACDP) proposal.

The Chairperson wished that Mr Swart (ACDP) had raised the matter earlier. He however accepted the Member’s apology because the ACDP had been such an important contributor to the process and the Committee.

The Chairperson conferred with the Parliamentary and Department of Home Affairs (Department of Home Affairs) legal advisors.

Ms Refilwe Mathabathe, Parliamentary Legal Advisor, thought it important to make a distinction between broadcasters and publishers. In terms of the Constitution broadcasters were not subject to regulation by the Films and Publication Board (FPB). Publishers on the other hand were subject to such regulation. Requiring them to submit to pre-publication classification would however amount to censorship.

Ms Kalyan wondered on what grounds an unclassified publication could be penalised.

Ms Mathabathe explained that a major component of the public hearings had been whether newspapers should be exempt from the provisions of the Act as well as penal provisions. It was agreed that they would not be exempt from the penal provisions. The fact that they did not have to submit for pre-classification did not mean that they could be irresponsible in their publication and distribution.

Mr Beukman reiterated that the ANC’s principal concern was that the legislation be constitutional. He felt that since agreement had already been reached on the matter in the previous day’s meeting. It was up to the Chairperson to decide whether he would at that stage of the procedures entertain further deliberations.

Mr Swart (ACDP) stated that his understanding had been that they were re inserting an exemption in Section 16(1) and (2) that would exempt them totally from penal provisions related to classification. Ms Mathabathe was now however saying that not withstanding the exemption newspapers could still be charged for not classifying their goods. Surely that was not the intention. The wording he was suggesting would merely clarify that exemption.

The Committee agreed that Mr Swart’s (ACDP) proposal would be inserted. The amended section would read as follows: “Any person who knowingly broadcasts, distributes, exhibits in public, offers for sale or hire or advertises for exhibition, sale or hire any film, game or a publication referred to in Section 16(1) of this Act which has - (a) except with respect to broadcasters that are subject to regulation by the Independent Communications Authority of South Africa, and a newspapers contemplated in Section 16(1), not been classified by the board…”

The Chairperson quipped that he was impressed with the courage Members were showing that day. He added that that was how the Committee had actually dealt with the whole Bill. Much of the original Bill the Committee received had been changed. The interaction with the legislation had been robust.

The Chairperson thanked Mr Swart (ACDP) for his proposal and said that now that the emergency amendments had been done, the Committee would proceed with the adoption.

Mr Swart (ACDP) thanked the Chairperson for his indulgence.

The Chairperson said that the Committee had taken into account all the concerns that had been raised during the public hearings. He said that he had made sure that the procedure the Committee would follow was the right one. He did not want the DA to claim, as they did with the Civil Union legislation, that the process had been flawed.

Motion of Desirability
The Chairperson read the Motion of Desirability, to which Members agreed.

Adoption of FPB
The Chairperson read through the redrafted Bill for the Committee’s adoption of each clause.

The DA objected to Section 16(2),(3) and (4) contained in Clause 19 of the Bill. They felt that these provisions required thepre-publication classification, and that the hate speech clause was far broader than what the Constitution provided for. The DA was of the opinion that the provisions aimed to amend the Constitution and that that attempt was unconstitutional.

Mr Swart (ACDP) noted the ACDP’s reservations, which related to the broadness of the hate speech clause. He emphasised that the party did not object to the clause.

The Committee adopted the redrafted Films and Publications Amendment Bill.

Closing remarks
Ms Kalyan agreed that the Bill adopted that day was very different form the original one the Committee had received almost a year earlier. The intention to curb child pornography was an honourable one, but the DA did not agree with pre-publication censorship.

The Chairperson said that he would not enter into a political debate around whether the Bill required for pre-publication classification. The DA’s objection had been noted.

Mr Beukman felt that the redrafted Bill proved that Parliament was not a rubberstamp. The Committee had worked very hard and took the inputs from the stakeholders and the public very seriously. He added that the Committee took all political parties’ input very seriously provided they raised them at the appropriate forums.

The ANC was dedicated to ensuring that children’s rights were protected. It was the government’s duty to ensure that ills such as child pornography were eradicated. Government and the ruling party had to take responsibility. When one was in the opposition one could “disagree or agree with everything”. At the end of the day 45 million people wanted to see that the ANC government was protecting children’s rights and therefore the Film and Publication Board had to be strengthened.

Mr Swart (ACDP) said that the ACDP was on record as opposing all forms of pornography particularly child pornography. They were grateful that the exemption for the newspapers and broadcasters. He thanked the Chairperson for his indulgence, particularly when the ACDP was given the opportunity to engage the Committee and the drafters on their concerns. The Chairperson’s engagement and preparedness to accept the recommendations which went a far way to address the print media.

The Chairperson thanked the Committee for the energy they displayed while dealing with the Bill. He reminded everyone that they had visited each and every province during their public hearing process. They had seen how people were affected by the issues the Bill tried to address. People had called on the Committee to do something to protect the children.

He felt that the things people were exposed to on television and in the print media these days not of South African origin but was foreign and very new. It challenged the livelihoods of the future generations of the country.

He thanked the Members of the Committee for their input. The DA had walked out at some stage but had returned to the table with proposals. The ACDP, who he called loyal, had engaged robustly and he appreciated it. He thanked the ANC for the “manner in which they engaged with smaller parties”. He thought they deserved a round of applause for that.

The Chairperson also thanked the legal advisors from the DHA, Parliament and the office of the State Law Advisor. The Parliamentary legal services, was a “wonderful new tool” that would help committees to understand issues placed before them. The Committee appreciated it and realized that it had not always been easy as the contest between the parliamentary and department legal advisors had shown. He also expressed his appreciation for the work the committee section, as well as other Home Affairs officials had played. He had never seen such dedicated and coordinated working together between a Committee, Parliamentary legal advisors, researchers and the Department as displayed during the process they were now concluding. The journalists were thanked for their positive reporting on the work the Committee did.

He assured all present that it was not the Government’s intention to censor. The Committee had engaged with the media who themselves were surprised by some of things their colleagues printed and broadcasted. Having newspapers appearing before the Committee to apologise for what they published was a cause of concern. He hoped that they now understood that they had to strengthen their self-regulation. Some had already informed him that they were in the process of doing that. ICASA had also committed themselves to addressing the issues the Committee was trying to combat against.

He felt that the South African Parliament had proven itself to be one of the most robust in the world. The final bill was a testimony to the Committee’s engagement with stakeholders and all the different issues at stake. He felt that Parliament’s engagement with the media should not end there. The Committee was not yet satisfied that they had addressed the problem as they wanted to. The amendments would be ongoing. Watershed times should be addressed: broadcasters could not show inappropriate programmes from as early as nine o’ clock in the evening, as was the case now. He felt that the Children’s Bill would also contribute to improving the situation.

He reminded all that the legislation before them that day was the outcome of the resolutions made two years ago. The Committee would now monitor the implementation of the Bill.

The meeting was adjourned.