PLC Paper No. CB(2)185
(These minutes have been seen
by the Administration and cleared
with the Chairman)
Ref : CB2/BC/55/95
Bills Committee on the
Equal Opportunities (Family Responsibility, Sexuality & Age) Bill,
Equal Opportunities (Race) Bill,
Sex and Disability Discrimination (Miscellaneous Provisions) Bill 1996 and
Family Status Discrimination Bill
Minutes of the 12nd meeting
held on Thursday, 5 June 1997 at 12:30 pm
in the Chamber of the Legislative Council Building
Members Present :
Dr Hon LEONG Che-hung, OBE, JP (Chairman)
Dr Hon John TSE Wing-ling (Deputy Chairman)
Hon Zachary WONG Wai-yin
Hon Christine LOH Kung-wai
Hon LEE Cheuk-yan
Hon CHAN Yuen-han
Hon LAU Chin-shek
Hon LEUNG Yiu-chung
Members Absent :
Hon LAU Wong-fat, OBE, JP
Hon Mrs Miriam LAU Kin-yee, OBE, JP
Hon Emily LAU Wai-hing
Hon CHEUNG Hon-chung
Hon Albert HO Chun-yan
Hon Bruce LIU Sing-lee
Hon NGAN Kam-chuen
Member Attending :
Hon Mrs Elizabeth WONG, CBE, ISO, JP
Public Officers Attending :
- Mr NG Hon-wah
- Deputy Secretary for Home Affairs (Acting)
- Miss Helen TANG
- Principal Assistant Secretary for Home Affairs
- Ms Cora HO
- Assistant Secretary for Home Affairs
- Miss May CHAN
- Assistant Secretary for Home Affairs
- Mrs N DISSANAYAKE
- Senior Assistant Law Draftsman
- Ms Esther LEUNG
- Principal Assistant Secretary for Education and Manpower
- Mrs Betty NEOH
- Principal Executive Officer, Civil Service Branch
- Mr Vincent FUNG
- Assistant Secretary for Financial Services
- Mr David YIP
- Assistant Secretary for Security
Attendance by Invitation :
- Mr Adam MAYES
- Personal Assistant to Hon Christine LOH
- Ms CHEUNG Yuet-fung
- Personal Assistant to Hon LAU Chin-shek
Clerk in Attendance :
- Mrs Anna LO
- Chief Assistant Secretary (2) 2
Staff in Attendance :
- Mr Stephen LAM
- Assistant Legal Adviser 4
- Mr Colin CHUI
- Senior Assistant Secretary (2) 2
I. Matters arising from the last meeting
Equal Opportunities (Family Responsibility, Sexuality & Age) Bill
With reference to his paper (Paper No. CB(2)2591/96-97(01)) tabled at the meeting, Mr LAU Chin-shek briefed members on his response to the Administrations questions raised at the last meeting.
Mr LAU drew members attention to the whole set of his proposed CSAs to his Bill (Paper No. CB(2)2591/96-97(02)) tabled at the meeting. The CSAs sought to, among other things, remove part II of his Bill on family responsibility discrimination. Representatives of the Administration said that the Administration would revert to the Bills Committee on its views on these CSAs.
Family Status Discrimination Bill
Clause 2 - Interpretation
The Administrations response to members questions on the definitions of "family status" and "immediate family member" was as follows -
- According to legal advice, adopted children fell within the definition of "immediate family member" after completion of legally recognised adoption procedures.
- Before commencement of the Marriage Reform Ordinance on 7 October 1971, there were five types of valid marriages. One of the valid marriages was relevant to a members question raised at the last meeting. This type of marriage catered for long-standing family relationship which was regarded by the couples, their relatives and neighbours as a marital relationship. Whilst not a legally recognised marriage, this relationship could be regarded as a publicly recognised marriage. In the circumstances, the co-habitation, being a publicly recognised marriage, was presumed to be a marital relationship under laws of the United Kingdom. The Administration was requested to provide details of the pre-1971 valid marriages in Hong Kong.
(Post-meeting note : Information on the pre-1971 valid marriages provided by the Administration was circulated to members vide Paper No. CB(2)2743/96-97(01).)
- Marriages celebrated or contracted outside Hong Kong in accordance with the law in force at the time and in the place where the marriage was performed were legally recognised in Hong Kong.
Revised CSAs to clause 2
(Paper No. CB(2)2617/96-97(01))
Members noted the following Presidents ruling in relation to Mr LAUs CSAs to the definitions of "family status" and "immediate family member" in the Bill -
- The amendments carried a charging effect at least insofar as the new duties of the Equal Opportunities Commission (EOC) were concerned.
- The amendments were outside the scope of the Bill.
Referring to his revised CSAs tabled at the meeting, Mr LAU said that he had proposed alternative CSAs on the same subject and sought the Presidents ruling in respect of charging effect and relevance to the Bill. Under the revised CSAs, "family status", in relation to a person, meant -
- the status of having responsibility for the care of another person, whether or not that person was a dependant, other than in the course of paid employment;
- the status of being a particular relative; or
- the status of being a relative of a particular person.
Mr LAU pointed out that to get round the hurdle of charging effect, the new definitions of "family status" and "immediate family member" covered two broad categories of people -
- People covered in the existing definitions in the Bill. EOC was empowered to handle their complaints against family status discrimination. If EOCs conciliation could not redress their grievances, the aggrieved persons might institute legal proceedings against the alleged discriminators.
- Other people proposed to be included in the new definitions by Mr LAU. Since their complaints against family status discrimination were outside the scope of EOC, these cases would be dealt with by the court directly.
In reply to the Administration, Mr Adam MAYES said that relative referred to in Mr LAUs revised CSAs meant family members, including siblings, parents or children, of the aggrieved persons. The Primary One Admission System, which awarded extra points to applicants if their siblings attended the same school, would be covered under the revised CSAs. The word "household" referred to in the definition of "relative" included a dependant of the aggrieved person. The word was used in other laws of Hong Kong. It would include, for example, an informally adopted child. The Administration pointed out that the exemption provisions under the Bill were insufficient to cater for Mr LAUs revised definition of "family status". Mr LAU said that under clauses 43 and 68 the Administration could provide additional exemptions to cater for the revised definition.
Clause 4 - Act done because of more than one reason
The Administration did not object to amending the heading of clause 4 to tie in with that of clause 4 of Mr LAUs Bill.
(Post-meeting note : The Administrations CSAs incorporating this amendment were circulated to all LegCo Members vide Appendix I to LegCo Paper No. CB(3)1210/96-97.)
Clause 18 - Discrimination by responsible bodies for educational establishments
The Administration pointed out that the Secondary School Places Allocation System referred to in clause 18(2)(b) did not have a scoring system. ALA4 agreed with the Administration that school students did not have the status of having responsibility for the care of an immediate family member. They therefore fell outside the scope of the definition of "family status" in the Bill. As such clause 18(1), which outlawed family status discrimination in the area of education, did not apply to the student admission schemes set out in clause 18(2) of the Bill.
Clause 20 - Discrimination in disposal and management of premises
The Administration pointed out that according to legal advice, premises under clause 20 included land referred to in clause 20 of Mr LAUs Bill.
Clause 44 - Functions and powers of EOC
In reply to Mr LAU, the Administration stated that EOC, established under SDO, was empowered under the Ordinance to undertake or assist the undertaking by other persons of any research, and any educational activities, which appeared to EOC necessary or expedient for the performance of its functions. The functions included those provided for under SDO and any other enactments. As such DDO did not provide for the research and education work of EOC in the area of disability discrimination. In the same way, the Bill did not provide for this aspect of EOCs work.
Schedule 2 - Further exceptions to the Bill
Members noted that Miss LOH proposed to replace the exception for marital status discrimination in employment benefits referred to in Schedule 2 with exception permitting reasonable rules to prohibit double benefits (Paper No. CB(2)2514/96-97(04)). Representatives of the Administration said that, according to legal advice, Miss LOHs amendment would outlaw the Administrations existing practices on these benefits which were unrelated to the double benefits rule. An example of these practices was that better housing benefits were provided to civil servants with large families. This might be regarded as discrimination against civil servants with small families. As these established practices were accepted by the staff side of the civil service, exemptions for these practices in the Bill were necessary to put their legality beyond doubt.
Parallel provision to clause 22 of Mr LAUs Bill in relation to application forms, etc.
Representatives of the Administration said that according to legal advice, an alleged discriminator would be in breach of clause 22 of Mr LAUs Bill if he/she took into account the information referred to in the clause. Absence of a parallel provision to clause 22 of Mr LAUs Bill in relation to application forms, etc. therefore did not present any problem. Nevertheless, Home Affairs Branch would consult other relevant government branches/departments on Mr LAUs suggestion of incorporating a parallel provision in the Bill.
(Post-meeting note: After careful consideration, the Administration decided not to accept Mr LAUs suggestion.)
II. Continued examination of the Equal Opportunities (Family Responsibility, Sexuality & Age) Bill
Part III - Sexuality
The Administrations position
Representatives of the Administration said that the Administration conducted a study and public consultation exercise on this issue in 1995/96 and announced its findings in June 1996. More than 10,000 submissions were received and an overwhelming majority (85%) opposed legislation. Instead, they supported administrative measures such as public education to promote the principle of equal opportunities and enhanced support services for sexual minorities. In this connection, the Administration had helped homosexual support groups to secure funds to enhance the services they provided. Additionally, the Administration published a pamphlet that sought to address common misunderstandings about the sexual minorities and to gain greater acceptance of their right to equal opportunities and a booklet to promote a better understanding of the issues within the community. All these efforts would continue.
As last years consultation indicated strong public opposition to anti-discrimination legislation in this area and that its introduction at the present time would be premature, the Administration did not support the provisions in Part III of the Bill.
Clause 27 - Discrimination on the ground of sexuality
In reply to the Administration, Mr LAU said that he had proposed a CSA (Paper No.CB(2)2591/96-97(02)) to clause 27 so as to tie in with the indirect discrimination provision of the Sex and Disability Discrimination (Miscellaneous Provisions) Bill 1996.
Clause 37 - Goods, services and facilities
Members noted the request of the Federation of Insurers for exemption for the insurance industry from Part III of Mr LAUs Bill on sexuality discrimination (LegCo Paper No. CB(2)2063/96-97). Mr LAU said that he was considering the Federations request having regard to the further information provided by the Federation (Paper No. CB(2)2515/96-97(01)).
Grace period for small employers
In reply to the Administration, Mr LAU said that the Bill did not provide a grace period for small employers.
Exemptions for discrimination against domestic workers and teachers on the ground of their sexuality
The Administration considered that, in line with the exemption provision in SDO, the Bill should provide exemption for sexuality discrimination against domestic workers. It also pointed out that Australian law provided exemption in respect of persons engaged in the care of minors. Mr LAU said that, like employees in other fields, employment of domestic workers or teachers should be based on ability rather than sexuality. The exemptions were therefore not acceptable to him. Upon request, the Administration agreed to provide the relevant provisions of the Australian law for Mr LAUs consideration.
III. Examination of the Equal Opportunities (Race) Bill
Mrs Elizabeth WONG said that the purpose of this Bill was to render discrimination on the ground of race unlawful and to make provision for relevant remedies. The objective was to eliminate, as far as it was possible, all forms of racial discrimination in Hong Kong. In doing so, the Bill also intended to give effect to a variety of international obligations applicable to Hong Kong on the same subject. The Bill was substantially based on Ms Anna WUs Bill with the same title which was voted down by LegCo in 1995. Members noted that she had given notice to resume Second Reading debate of the Bill on 23 June 1997.
Representatives of the Administration said that to address the question of racial discrimination, the Administration had conducted a study to establish whether such discrimination existed in Hong Kong and, if so, its nature, extent and possible options for addressing such problems as might be found to exist. The findings of the study were released in a consultation document on racial discrimination. Following publication of the document, the Administration conducted a ten-week public consultation exercise ending on 30 April 1997. A total of 238 submission were received in the consultation period. Outcome of the consultation exercise would be released after discussion by the Executive Council. The Administration considered that it should await the outcome of the consultation exercise before proceeding further with the legislative proposal.
(Post-meeting note : The LegCo Brief on the outcome of the consultation exercise and the Governments future course of action to enhance equal opportunities for all races issued by the Home Affairs Branch (Ref. HAB CR/1/34/54 IV) dated 18 June 1997 had been circulated to all LegCo Members.)
Clause 1 - Short title and commencement
Mrs WONG said that she would propose a CSA to amend the commencement date of the Bill.
Clause 3 - Interpretation
The Administration pointed out that, unlike that in the International Convention on the Elimination of All Forms of Racial Discrimination, the definition of "race" in the Bill included nationality. It therefore asked about the rationale for the inclusion. Mrs WONG said that she would consider amending the definition to tie in with that in the International Convention.
Clause 16 - Education
The Administration said that according to legal advice, the Bill might outlaw the public sector schools practice to refuse admission of aliens. Mrs WONG stated that, as a matter of principle, the Bill prohibited racial discrimination which was also applicable in the area of education.
Clause 19 - Accommodation
The Administration pointed out that quarters were provided to 38 single expatriate police officers but not to their local counterparts. It therefore was concerned whether the Bill would provide temporary exemption for this practice which might not be necessary by 2000. Mrs WONG agreed to consider this.
Clause 40 - Compliance with school admission schemes
The Administration pointed out that according to legal advice, clause 40 did not exempt school admission schemes like the Junior Secondary Education Assessment and Secondary Six Admission Procedure. Wording of clause 40 should be revised in order to exempt all the existing and future school admission schemes from the Bill. Mrs WONG agreed to consider this.
Exemptions for immigration law and policy
The Administration briefed members on the Bills impact on immigration law and policy set out in para 5 of its paper (LegCo Paper No. CB(2)1258/96-97). The Bill should provide exemptions for the immigration law and policy. Mrs WONG agreed to consider this.
Parallel issues in the three Members Bills studied by the Bills Committee
On the question of parallel issues in the three Members Bills studied by the Bills Committee, Mrs WONG said that she would put forward amendments to tie in with those in Miss LOH and Mr LAUs Bills.
Compliance with nationality requirements in the Basic Law
Representatives of the Administration said that under Article 99 of the Basic Law, public servants serving in all government departments of the Hong Kong Special Administrative Region (HKSAR) must be permanent residents of the region, except where otherwise provided for in Article 101 of the Law regarding public servants of foreign nationalities and except for those below a certain rank as prescribed by law. Article 61 of the Law required, among other things, that the principal officials of HKSAR should be Chinese citizens who were permanent residents of the Region with no right of abode in any foreign country. The Administration raised whether these requirements were consistent with the Bill. A member added that the Bill should also be consistent with the Basic Law in respect of the nationality requirements for the First Legislative Council Members of HKSAR. Mrs WONG agreed to consider the concerns raised.
Labour importation policy
The Administration raised whether the labour importation policy was in breach of the provisions of the Bill. In this connection, a member asked whether the Bill outlawed the prohibition of importation of Chinese domestic workers. Mrs WONG said that, as a matter of principle, the Bill outlawed racial discrimination which also applied in the area of employment.
IV. Date of next meeting
Members agreed that the next meeting would be held on 12 June 1997 at 12:30 pm in the Chamber of the Legislative Council Building to continue examination of the Equal Opportunities (Race) Bill.
The meeting ended at 2:40 pm.
Provisional Legislative Council Secretariat
21 August 1997
Last Updated on 16 December 1998