LegCo Paper No. CB(2)1957/96-97
(These minutes have been seen by the Administration)
Ref : CB2/BC/55/95

Bills Committee on the
Equal Opportunities (Family Responsibility, Sexuality & Age) Bill,
Equal Opportunities (Race) Bill and
Sex and Disability Discrimination (Miscellaneous Provisions) Bill 1996

Minutes of the 4th Meeting
held on Monday, 17 March 1997 at 4:30 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 Mrs Miriam LAU Kin-yee, OBE, JP
    Hon Zachary WONG Wai-yin
    Hon LEE Cheuk-yan
    Hon Albert HO Chun-yan
    Hon LAU Chin-shek
    Hon LEUNG Yiu-chung
    Hon Bruce LIU Sing-lee
    Hon NGAN Kam-chuen

Members Absent :

    Hon LAU Wong-fat, OBE, JP
    Hon Emily LAU Wai-hing
    Hon Christine LOH Kung-wai
    Hon CHAN Yuen-han
    Hon CHEUNG Hon-chung

Public Officers Attending :

Mr NG Hon-wah
Deputy Secretary for Home Affairs (Atg.)
Miss Helen TANG
Principal Assistant Secretary for Home Affairs
Ms Esther LEUNG
Principal Assistant Secretary for Education and Manpower
Mrs Jennie CHOR
Assistant Commissioner for Labour
Mr SO Chi-keung
Chief Executive Officer
Civil Service Branch
Mr Vincent FUNG
Assistant Secretary for Financial Services
Mr David YIP
Assistant Secretary for Security
Mr K Y MAK
Assistant Director of Immigration
Mr Francis CHENG
Assistant Secretary for Education and Manpower

Attendance by Invitation

Ms CHEUNG Yuet-fung
Personal Assistant to Hon LAU Chin-shek
Mr Adam MAYES
Personal Assistant to Hon Christine LOH

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. Examination of the Equal Opportunities (Family Responsibility, Sexuality and Age) Bill

Matters arising from the meeting on 3 March 1997

The Administration’s response to the matters arising from the meeting held on 3 March 1997 was as follows -

Details of pre-printed opinion forms

2. In response to a member’s request for details of the pre-printed opinion forms on discrimination in the area of sexuality, representatives of the Administration said that samples of the pre-printed opinion forms received on the areas of family status and sexual orientation were displayed in Section E of the compendium of submissions in respect of the consultative documents on discrimination on the grounds of family status and sexual orientation. Of the 9,829 pre-printed opinion forms received, 8,329 were in the form displayed in section E10 including those with minor variations. In collating public views, the Administration had taken into account the content of the submissions and their representativeness, not just the number of submissions.

Specific age discrimination legislation in European Union countries

3. The Administration pointed out that it was still checking whether France had specific age discrimination legislation; other European Union countries did not have such legislation.

Committee stage amendment (CSA) to empower the Equal Opportunities Commission (EOC) to deal with other areas of discrimination in addition to sex and disability

4. The Administration stated that it was not in a position at this stage, when no CSA had been proposed, to comment on whether a CSA empowering EOC to deal with areas of discrimination in addition to sex and disability would have a charging effect. The Administration would consider any CSA after notice to move it had been given. In this connection, the Administration confirmed that its proposed public bill to outlaw discrimination on the ground of family status empowered EOC to deal with such discrimination.

The "consequential amendment" provisions in Equal Opportunities (Family Responsibility, Sexuality & Age) Bill and Equal Opportunities (Race) Bill

5. Representatives of the Administration briefed members on its letter to the President of the Legislative Council (LegCo) tabled at the meeting (LegCo Paper No. CB(2)1570/96-97 referred) which stated that the two "consequential amendment" provisions in clause 103 of the Equal Opportunities (Family Responsibility, Sexuality & Age) Bill and clause 55 of the Equal Opportunities (Race) Bill were neither consequential to the two Bills nor relevant to their long titles. As such, they offended the prohibition on intermixing of subject-matters in clause XXV(3) of the Royal Instructions. There was no precedent on the issue. The Administration would like to have views of the President of LegCo and the Bills Committee on how to deal with the two clauses. Without commenting on this particular case which would be ruled by the President, ALA4 point out that, in general, the Standing Orders of LegCo did not empower the President to rule, after gazettal of a bill, whether a clause of a bill was in order. It would be for members to move amendments to a bill.

Difficulties in implementing Mr Lau’s Bill

6. A member asked whether the Administration envisaged any difficulties in implementing the Bill immediately after its enactment. Representatives of the Administration said that the Bill, if enacted, would cause difficulties. Whether the difficulties could be reduced by deferring the full implementation of the Bill would depend on the duration of the deferral. For example, if it were to be implemented some years after enactment, the difficulties might be marginally less. In particular, small employers required some time to adjust their employment practices in order to comply with the provisions of the Bill.

7. In reply to a question on examples of any practical difficulties, representatives of the Administration said that the Bill did not provide exceptions for some existing practices or policies. Examples of these practices or policies were the Double Benefits Rules which allowed only one of a married couple, one or both of whom were civil servants, to be eligible for fringe benefits related to housing, education or passage; the provision of different rates of the Private Tenancy Allowance to officers of different family status; and the rule that single civil servants were not eligible for applying for Housing Authority flats under the Civil Service Public Housing Quota. Mr LAU Chin-shek responded that such exceptions also related to clause 10 of the Sex and Disability Discrimination (Miscellaneous Provisions) Bill 1996. He would consider whether amendments to the relevant clauses of his Bill were necessary.

Mr LAU
Chin-shek

Timetable for the public bill on discrimination in the area of family status

8. In reply to the Chairman, representatives of the Administration said that its bill to outlaw discrimination on the ground of family status was planned for First Reading in LegCo on 23 or 30 April 1997. As higher priorities had to be given to other bills, the bill could not be introduced into LegCo earlier.

9. On a member’s suggestion to hold the scrutiny of Mr LAU’s Bill in the area of family status pending the introduction of the corresponding public bill into LegCo, Mr LAU Chin-shek said that, as already indicated to the Secretary for Home Affairs, he would not do so as the Bill was already long overdue. In this connection, he would however, consider breaking his Bill into three different parts for voting in LegCo.

10. On the question of the reasons for not taking a step-by-step approach to eliminate discrimination, Mr LAU Chin-shek reiterated that some members of the public supported comprehensive anti-discrimination legislation which was less confusing.

Differences between Mr LAU’s Bill and the public bill in the area of family status

11. In reply to a member, the Administration pointed out that Mr LAU’s Bill, in so far as it related to family status, differed from the public bill in several areas. The main differences were as follows -

  1. The Administration proposed to define family status by making reference to the status of having responsibility for the care of any immediate family member. An immediate family member must be related to the person concerned by blood, marriage, adoption or affinity. The definition proposed in Mr LAU’s Bill was loose and appeared to include co-habitation, de-facto spouse and even co-habitants of the same sex.
  2. The public bill empowered EOC to deal with discrimination in the area of family status but EOC was not involved in the implementation of Mr LAU’s Bill.
  3. Clause 7 of Mr Lau’s Bill sought to link the interpretation of the Bill with international instruments and obligations including the following which had not been extended to Hong Kong -
    1. Hong Kong had entered reservations on the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) adopted by the General Assembly of the United Nations on 18 December 1979 (referred to in clause 2(e) of the Bill) when it was extended to Hong Kong in October 1996. At a member’s request, the Administration undertook to provide members with details of the reservations and declarations.
Admin
    1. Under International Labour Conventions, International Labour Organisation (ILO) Recommendations were not binding on any member states of ILO. Therefore, both the ILO Recommendations No. 111 on Discrimination In Occupation and Employment and No. 165 on the Rights of Workers with Family Responsibilities (referred to in clause 2(f) of the Bill) were not binding on Hong Kong. Hong Kong would therefore not become legally obliged as a result of Clause 2(f) to follow these Recommendations. The court would not, as a matter of common law principle, interpret legislation with regard to these non-binding ILO Recommendations. Nevertheless, clause 2(f), which made it an object of the Bill to give effect to these Recommendations, might pose undue constraints on the court’s flexibility in interpreting the provisions. ALA4 pointed out that clause 7(3) required the interpretation of the provisions of the Bill to be consistent with the standards contained in the international instruments referred to in clause 2(e) and (f). He requested the Administration’s legal advice on the issue for consideration by the Bills Committee. Mr Adam MAYES said that, the reference to CEDAW could be amended to refer instead to CEDAW "as applied to Hong Kong" in order to reflect CEDAW’s recent extension to Hong Kong. Clause 7(3) only came into play when the Ordinance was ambiguous, and the ambiguity could not be resolved by reference to relevant international obligations. In such circumstances, clause 7(3), required the interpretation of the Bill to be consistent so far as possible with the ILO Recommendations. The ILO Recommendations were not binding on Hong Kong or any other ILO member, but were rather general principles adopted by ILO for the guidance of all its members. Mr LAU Chin-shek undertook to consider putting forward amendments to clauses 2(e), (f) and 7(3) of the Bill.
Admin
Mr LAU

Clause-by-clause examination of the Bill

Clause 1

12. Mr LAU Chin-shek said that he would amend clause 1(3) to the effect that the Bill would come into operation with immediate effect.

Clause 2

13. Mr LAU undertook to write to the Bills Committee on his proposed amendment to clause 2(e) and (f).

Clause 3

14. On the question of scope of the definition of "family responsibility or family status" under clause 3, Mr LAU said that the definition covered both matrimonial and co-habiting relationships irrespective of whether they were heterosexual or homosexual. The test of such matrimonial or co-habiting relationships was whether the couple lived a truthful family life. Only monogamy was intended to be recognised under the definition. On the question of whether mistresses fell within the scope of the definition, Mr Adam MAYES said that the word "mistress" provided too little information about the nature of a particular relationship. The word could indicate a wide variety of possible relationships, ranging from a relationship maintained only by cash transactions to a genuinely family-like relationship. Whether a particular relationship amounted to a "family status" for purposes of the Bill would have to be decided by the court on a case-by-case basis. In general, the courts of Hong Kong were likely to take a conservative view. A member was concerned whether a person’s monogamous relationship(s) outside Hong Kong, irrespective of whether it was matrimonial or not, would be recognised under the definition. Mr LAU Chin-shek undertook to address the concerns raised and consider the implications of the definition on the issue of maintenance for a divorcee and his/her dependants.

15. Regarding Mr Lau‘s view that the Employees’ Compensation Ordinance, Wills Ordinance and Domestic Violence Ordinance covered non-matrimonial relationship, the Administration’s response was as follows -

  1. The spirit of the relevant provision in the Employees’ Compensation Ordinance was to provide protection for an individual, who depended substantially or mainly on the employee for a living.
  2. The Wills Ordinance referred to by Mr LAU should appropriately be the Inheritance (Provision for Family and Dependants) Ordinance, which offered protection to an individual who depended substantially or mainly on the deceased for a living;
  3. The Domestic Violence Ordinance was to bring within legislative control domestic violence to persons living together even though no matrimonial relationship existed.

The aforesaid protection under these Ordinances was to cater for specific needs and did not imply that co-habiting relationship had been legally recognised.

16. A member opined that the spirit of the Bill was to eliminate discrimination. A person with matrimonial and/or non-matrimonial relationships (e.g. a mistress) should be equally protected from discrimination on the ground of family status.

17. Another member opined that there were problems in using truthful family life as a test of matrimonial or co-habiting relationships and in other definitions in the Bill e.g. the definition of "near relative". He said that Mr Lau’s Bill adopted a broad definition of marital status while the definition under the public bill was based on legally recognised marital relationship and consistent with family law. As such, he suggested Mr Lau’s Bill be examined together with the public bill so as to facilitate a comparison of the two legislative proposals. The Administration undertook to consult the Legal Department on providing the Bills Committee with the draft public bill before the next meeting.

Admin

18. Mr LAU Chin-shek undertook to re-examine the clause so as to provide clear and accurate definitions.

Mr LAU
Chin-shek

II. Date of next meeting

19. Members agreed that the next meeting would be held on 1 April 1997 at 4:30 pm in the Chamber of the Legislative Council Building. As Mr LAU Chin-shek would be out of town on that date, the Bills Committee would begin to examine the Sex and Disability Discrimination (Miscellaneous Provisions) Bill 1996. Upon the request of EOC and the Hong Kong Federation of Women, the Bills Committee would meet representatives of these two organisations at the next meeting.

20. The meeting ended at 6:18 pm.

LegCo Secretariat
21 April 1997

Last Updated on 16 December 1998