Government failing to involve public in law-drafting process

Martin van Staden / Midjourney
Martin van Staden / Midjourney

This article was first published by Business Day on 15 February 2024

Draft parliamentary bills are frequently not published for public comment, though they can and should be. The possibility of publication of a draft law in the Government Gazette for comment exists when a legislative bill is to be introduced in a house of parliament. But it is just that, a mere possibility.

Before a legislative bill is introduced, a draft of the bill will have been framed by the government department concerned. Or, less commonly, by a committee of the relevant house of parliament.

Occasionally, the government department may have posted the draft law on the departmental website with an invitation for public comment. But this is not obligatory.

Must parliament publish draft bills for public comment? The national constitution states that each house of parliament may make its own rules concerning its business, with due regard to transparency and public involvement. (The constitution declares that it has been adopted to lay the foundations for an open society.)

Both houses of parliament in SA have made such rules. But they do not insist that the full text of bills to be introduced in the house concerned be published in full for public comment.

Thus, the rules of the National Assembly provide merely that before a bill is introduced in the assembly prior notice of its introduction must be given in the Government Gazette, and either the text of the draft bill or an “explanatory summary” of the bill must be published.

If the text of the draft bill is published, the notice of the introduction of the bill must contain an invitation to interested persons and institutions to submit written representations on the draft bill to the speaker within a specified period. A memorandum setting out the objects of the bill must also be published.

So, the National Assembly has discretion over whether to publish the text of the draft bill in the Government Gazette. And, if in the exercise of that discretion the text of the draft bill is not published, there is no parliamentary duty to invite interested persons to submit written representations.

So much for parliament. What about government departments? Where public comments on proposed texts of an official nature are invited, the invitations for such public comments are frequently posted in obscure places.

It is currently government practice that any public notices inviting comments on draft legislation and other proposed official measures be posted only on the website of the government department or statutory body concerned, rather than in one central location such the Government Gazette, as was previously the custom. 

Knowing ahead where to look

A person must therefore now know in advance what he or she is looking for, and where to find it. Yet the public is generally unaware that a particular draft law has been placed on a specific government website, or that a public invitation to comment on it appears with it.

Should it by chance come to anyone’s attention that an invitation for public comment on a particular draft law has indeed been placed on a government website, that person will as often as not encounter difficulty when attempting to access the website to peruse that draft law.

Departments and statutory bodies’ individual websites commonly contain unique idiosyncrasies. Many are plagued with inaccessibility of one sort or another and are unfriendly to the general user. 

Take, for instance, the website of the statutory Ombud Council. In November the Ombud Council invited comments on draft proposed governing rules for a new Finance Ombud Scheme, which is to be an amalgamation of the four existing separate finance ombud schemes (for banking services, long-term insurance, short-term insurance and credit).

The new amalgamated Finance Ombud Scheme applied to the Ombud Council for formal recognition of the new scheme as an industry ombud scheme, as contemplated in the Financial Sector Regulation Act.

The act stipulates that before the Ombud Council can formally recognise a new scheme, the scheme must submit to the council a draft of its governing rules, and the council must publish the draft rules with a notice inviting public comment.

On November 13 the Ombud Council posted the new Finance Ombud Scheme’s draft rules on its website and invited comment. The Financial Sector Regulation Act appears to permit the posting of draft documents on the council’s website.

But finding those draft Finance Ombud Scheme rules, and the invitation to comment on them, on the Ombud Council’s website was not straightforward. A person would somehow have had to anticipate that draft governing rules for a new Finance Ombud Scheme would become available, and where and when to find them.

If, on the other hand, the Ombud Council had published those proposed governing rules of the new Finance Ombud Scheme in the Government Gazette for comment, finding them would have been straightforward. The Government Gazette is published weekly and can reasonably be called a newspaper, albeit a fairly specialised one. It is an accessible central point of reference.


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The views expressed in the article are the author’s and are not necessarily shared by the members of the Foundation. This article may be republished without prior consent but with acknowledgement to the author.




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