Diplomatic Immunities and Privileges Amendment Bill Briefing to Parliament: Select Committee on Economic and Foreign Affairs 27 August 2008

DIPLOMATIC IMMUNITIES AND PRIVILEGES AMENDMENT BILL Amending the Diplomatic Immunities and Privileges Act, 2001 (Act No 37 of 2001) Technical amendments to: –Section 2(2)(b): definition of member of a diplomat’s family; –Section 9(2): publication of the diplomatic list; and –Section 9(3): confirmation of immunities and privileges

NEED FOR AMENDMENTS Harmonise legislation and practice; Align SA practice with international best practice –Members of the family: defining a diplomat’s family members by their level of dependency and not their particular travel document; –Diplomatic list: having it available electronically instead of published once a year so that it is easily accessible and valid –Confirmation of diplomatic status: providing official confirmation of a person’s diplomatic status whenever the need arises not only in a courtroom setting

Definition of Members of the Family Current: 2(2)(b) “member of the family “ means – (i) the spouse; (ii) any unmarried child under the age of 21 years; (iii) any unmarried child between the ages of 21 and 23 years who is undertaking full time studies at an educational institution; and (iv) any other unmarried child or other family member officially recognised as a dependant member of the family by the government of the sending State, the United Nations, a specialised agency or organisation and who is issued with a diplomatic or official passport”

Definition of Members of the Family Proposed Amendment For the purposes of the Act “member of the family” means (a)the spouse; (b)any dependant child under the age of 18 years; (c)any other dependant family member, officially recognised as such by the sending State or the head office of the United Nations, a specialized agency or an international organisation; (d)the life partner, officially recognised as such by the sending State or the head office of the United Nations, a specialized agency or an international organisation;

Members of the family The difference: –Consistent with international practice –Age of minority decreased from 21 to 18 – Align with Children’s Act; –Dependency is the key criteria: financial & cohabitation; –NOTE: Sending State will confirm dependency – no DFA investigation; –Life partners formally recognised

THE NEED FOR THE AMENDMENT The requirement that all dependants need a diplomatic or official passport is not working in practice; Align the age of minority with the Children’s Act; Need an measure of flexibility – recognise different family arrangements

THE NEED FOR THE AMENDMENTS continued Make dependency the key criteria Dependency = cohabitation and financial dependency – to be confirmed by the sending State Recognise that life partners can be a member of the family

THE DIPLOMATIC LIST Current “The Minister [of Foreign Affairs] must cause a complete list of all persons on the register to be published at least once a year in the Gazette.” Proposed to National Assembly 9(2) The Minister must cause a complete list of all persons on the register to be made publicly available

THE DIPLOMATIC LIST The National Assembly amendment 9(2) The Minister must cause a complete list of all persons on the register to be published on the Website of the Department of Foreign Affairs, and must cause the list to be updated as frequently as may be necessary, and made publicly available.

THE DIPLOMATIC LIST: THE DIFFERENCE The list will no longer be published annually in the Government Gazette It will now be updated in real time and made publicly available on the Internet

THE DIPLOMATIC LIST : REASONS FOR THE AMENDMENTS –A valid real-time list; –User friendly – service orientated; –Savings of R on publication in the Government Gazette; –Technology will be available: Protocol IT Project

THE DFA CONFIRMATION CERTIFICATE Current: If in any proceedings in a court of law any question arises as to whether or not any person enjoys any immunity or privilege under this Act or the Conventions, a certificate under the hand or issued under the authority of the Director-General stating any fact relating to that question is prima facie evidence of that fact” Proposed If any question arises as to whether or not any person enjoys any immunity or privilege under this Act or the Conventions, a certificate under the hand or issued under the authority of the Director-General stating any fact relating to that question is prima facie evidence of that fact”

THE DFA CONFIRMATION CERTIFICATE: THE DIFFERENCE Previously a certificate could only be issued if a dispute arose in a court. Now, a certificate can be issued if there is any question as to whether or not the person enjoys immunity.

THE DFA CONFIRMATION CERTIFICATE: REASONS FOR THE AMENDMENT -Official confirmation of diplomatic status; -Assistance to the public – service orientated – don’t have to wait before the dispute goes to court to get confirmation of diplomatic status. -In the absence of Government Gazette publication it provides a formal means of confirming diplomatic status.

Expected Outcomes A predictable but flexible mechanism for registering dependants of members of the family of diplomats; Aligning South African practice with international practice for registration of members of the family; A reliable and up-to date diplomatic list that can be accessed by the public; A mechanism for official confirmation of a persons diplomatic status; Streamlined work procedures for the Branch Protocol