Diplomatic Immunities and Privileges Amendment Bill

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Diplomatic Immunities and Privileges Amendment
Bill

• Briefing to Parliament Select Committee on
  Economic and Foreign Affairs
• 27 August 2008

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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
  diplomats family
• Section 9(2) publication of the diplomatic list
  and
• Section 9(3) confirmation of immunities and
  privileges

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NEED FOR AMENDMENTS

• Harmonise legislation and practice
• Align SA practice with international best
  practice
• Members of the family defining a diplomats
  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 persons diplomatic
  status whenever the need arises not only in a
  courtroom setting

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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

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Definition of Members of the Family

• Proposed Amendment
• For the purposes of the Act member of the
  family means
• the spouse
• any dependant child under the age of 18 years
• 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
• 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

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Members of the family

• The difference
• Consistent with international practice
• Age of minority decreased from 21 to 18 Align
  with Childrens Act
• Dependency is the key criteria financial
  cohabitation
• NOTE Sending State will confirm dependency no
  DFA investigation
• Life partners formally recognised

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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 Childrens
  Act
• Need an measure of flexibility recognise
  different family arrangements

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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

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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

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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.

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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

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THE DIPLOMATIC LIST REASONS FOR THE AMENDMENTS

• A valid real-time list
• User friendly service orientated
• Savings of R100 000 on publication in the
  Government Gazette
• Technology will be available Protocol IT Project

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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

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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.

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THE DFA CONFIRMATION CERTIFICATE REASONS FOR THE
AMENDMENT

• Official confirmation of diplomatic status
• Assistance to the public service orientated
  dont 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.

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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