Senior Counsel briefing on clause 6 of the Marriage Bill; PLS briefing on the perceived conflict of interest involving IAB members

Video The Portfolio Committee on Home Affairs received legal opinions on the constitutionality of the royal family consent proviso in clause 6(2)(a) of the Marriage Bill and possible conflicts of interest involving members of the Immigration Advisory Board (IAB). Senior Counsel advised that the proviso was unconstitutional insofar as it permitted a further marriage without each existing wife’s individual written consent. Although the clause generally required written consent, the proviso subjected consent in royal families to their customs and traditions. Its wording could therefore dispense with personal consent where those customs did not require it. The opinion found that this infringed equality and dignity under sections 9 and 10 of the Constitution, unfairly discriminating on grounds of gender and marital status and undermining wives’ autonomy and equal participation in marital decisions. Senior Counsel recommended preserving individual written consent while allowing customary practices to regulate only how it was given and recorded. Defining “royal family” would also help avoid uncertainty. Parliamentary Legal Services (PLS) considered whether IAB members who practised as immigration attorneys and represented clients in matters involving the Department of Home Affairs (DHA) faced actual, potential or perceived conflicts of interest. PLS explained that the IAB performed an advisory role and that immigration practice supplied expertise relevant to appointment. Neither professional practice nor general concerns about access to departmental information established a conflict without specific facts and evidence. PLS concluded that no actual, potential or perceived conflict existed on the available information. However, sections 41 to 44 of the Immigration Act did not regulate IAB conflicts, and the Committee could consider additional legislative safeguards. Disclosure, recusal and resignation could manage conflicts, while inadequate safeguards could expose ministerial decisions to judicial review. Conflicts threatening public trust or independence could constitute good cause for requesting resignation. Members welcomed the opinion and emphasised that allegations of conflicts required substantive evidence. The Committee noted the IAB opinion and would consider possible amendments concerning conflict management. It would await the DHA's response to the Marriage Bill opinion before further deliberation and deciding how to proceed .