LC Paper No. LS 101/98-99
Paper for the LegCo Panel on Transport
Nature of Notices on Maximum Fares for Licensed Ferry Services
under section 33(1) of the Ferry Services Ordinances (Cap. 104)
This is a follow-up paper on the issues raised at the meeting of the LegCo Panel on Transport held on 27 November 1998 in order to assist members of the Panel in their consideration of whether notices given by the Commissioner for Transport ("the Commissioner") under section 33(1) of the Ferry Services Ordinance (Cap. 104) are subsidiary legislation.Further discussion with the Administration
2. Since the Transport Panel meeting on 27 November 1998, the Legal Service Division has exchanged authorities with the Administration and further discussed the issue with them. The Administration maintained that a notice under section 33(1) of Cap. 104 does not have legislative effect. In reaching this conclusion, the Administration emphasized that such notices only apply to the ferry licensees and do not have general application to the public or a sector of the public or a class.
3. We find it difficult to accept the above view. Clearly, a notice under section 33(1) of Cap. 104 imposes a legal obligation on a licensee not to charge a fare exceeding the maximum fares as determined by the Commissioner. On the other hand, such notice confers an enforceable right, or at least a legitimate expectation, on members of the public to use the relevant ferry service at a fare not exceeding the maximum fares determined by the Commissioner. We do not accept that the relationship between a ferry licensee and the persons who use the ferry service is, insofar as the provision of service is regulated by statute, purely contractual. Clearly, if members of the public find that a licensee is charging a fare exceeding the maximum level determined under section 33(1), they could lodge a complaint with the Commissioner, who, as a public officer, is under a duty to take necessary action to protect the public interest. Alternatively, they could report the matter to the appropriate authorities and the licensee is liable to be prosecuted for charging in excess of the limit imposed by the Commissioner.
4. We agree that, subject to clear statutory provision, one of the criteria in determining whether an instrument has legislative effect is to see whether the instrument applies to individuals or to the public or a sector of the public. However, it appears that the Administration is adopting a very narrow interpretation of the criterion. If this narrow interpretation is to be accepted by the courts, the Administration's view will clearly prevail. However, we do not think that it is likely for the courts to accept such a narrow interpretation. In the Australian case of Queensland Medical Laboratory and others v Blewett and others (1988) 84 ALR 615, in the context of deciding whether the rules of natural justice apply to the exercise of a legislative power, the Court (Gummow J) opined that the interests of all members of the public are affected by a statutory power of a strictly legislative nature. The judge further remarked that the determination made by the Minister for Community Services and Health in that case affected the interests of the Australian public at large and certain classes or groups of the public. Although this is not the basis on which the Court made its decision in that case, this opinion of the judge may throw some light on the approach which the courts are likely to adopt in deciding whether an instrument is legislative in nature. In our view, a notice under section 33(1) of Cap. 104 affects not only the interests of the licensee but also the interests of all members of the public who use or propose to use the relevant licensed ferry service.References to "by notice in the Gazette" in current legislation
5. There are numerous provisions in the current legislation which contain the reference to "by notice in the Gazette". In the Road Traffic Ordinance (Cap. 374) and its subsidiary legislation, for example, we can find a number of such provisions. Members may note that some of the notices made under those provisions have been treated and published as subsidiary legislation. Examples of such notices made by the Commissioner are as follows :
- Specification of Safety Glass Notice made under regulation 28 of the Road Traffic (Construction and Maintenance of Vehicles) Regulations (Cap. 374 sub. leg.);
- Hire Car Permits (Limitation on Numbers) Notice made under regulation 19(1) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374 sub. leg.); and
- Specification of Traffic Signs and Road Markings for Private Roads Notice made under regulations 3A and 8A of the Road Traffic (Traffic Control) Regulations (Cap. 374 sub. leg.).
Further, section 39F(1) of Cap. 374 provides that the Commissioner of Police may by notice in the Gazette approve types of instruments as approved breath analyzing instruments, etc. Such notice has been treated and published as subsidiary legislation.
6. However, members may note that there is inconsistency in the treatment of "notice in the Gazette" in Cap. 374 and its subsidiary legislation. This can be illustrated as follows:-
- Pursuant to section 40 of Cap. 374, which provides that the Commissioner may by notice in the Gazette vary the speed limit, etc., the Variation of Speed Limits Notice was made in August 1984. The said Notice was then published in form of a legal notice. However, for unknown reasons, the recent notices on variation of speed have been published in form of general notices in the Gazette; and
- notices designating areas as prohibited zones and restricted zones made by the Commissioner under regulation 14(1) of the Road Traffic (Traffic Control) Regulations (Cap. 374 sub. leg.) have been published in form of general notices in the Gazette. However, when this regulation, as modified by the Airport Authority Bylaw (Cap. 483 sub. leg.), is applied to the airport area, the notice designating the prohibited and restricted zones in the airport area made by the Airport Authority with the approval of the Commissioner has been published in form of a legal notice in the Gazette.
7. Members may also note that in the Road Traffic (Construction and Maintenance of Vehicles) (Amendment) Regulation 1999 (L.N. 14 of 1999) published in the Gazette on 15 January 1999, the Administration seeks to amend the Road Traffic (Construction and Maintenance of Vehicles) Regulations (Cap. 374 sub. leg.) to enable the Commissioner to specify models of smoke measuring apparatus by notice in the Gazette and to further provide that for the avoidance of doubt, such a notice is not subsidiary legislation. We will make a report on L.N. 14 of 1999 at the House Committee meeting on 22 January 1999 and recommend the setting up of a subcommittee to study it in detail.
8. Based on the points set out in paragraphs 5-7 above, we can observe the following:-
- There has not been consistency in the treatment of "notice in the Gazette";
- by the proposed introduction of the "for the avoidance of doubt" provision in L.N. 14 of 1999, the Administration appears to acknowledge that "notice in the Gazette" may literally be construed as subsidiary legislation when there is no express provision to the contrary; and
- in the absence of the "for the avoidance of doubt" provision, it is more arguable that a "notice in the Gazette" should be treated and published as subsidiary legislation.
9. We have suggested to the Administration that an express provision should be added to Cap. 104 to identify clearly the nature of notices made under section 33(1). However, the Administration does not think that this is necessary.
Possible courses of action for not tabling the subsidiary legislation
10. Under section 34(1) of Cap. 1, all subsidiary legislation shall be laid on the table of the Legislative Council at the next sitting thereof after the publication in the Gazette of that subsidiary legislation. Section 34(1) is silent on who is responsible for tabling the subsidiary legislation. The current practice is that the Government's Printer (representing the Administration) sends copies of Legal Supplement No. 2 to the LegCo Secretariat which then extracts items of subsidiary legislation to be tabled in LegCo.
11. In our view, although section 34(1) of Cap. 1 does not specify who is responsible for tabling the subsidiary legislation, it must have been intended by the said provision that the public officer or other authorized person who makes the relevant subsidiary legislation should be responsible for the tabling of it. This view is based on the assumption that the Administration will be acting in good faith and will give notice to the Clerk to LegCo of all items of subsidiary legislation to be tabled in LegCo for the purpose of complying with section 34 of Cap. 1.
12. Based on the above analysis, it would appear that the legislature may not, out of its own initiative, table any instrument which it considers as having legislative effect.
13. For members' information, the Subcommittee on the Ozone Layer Protection (Controlled Refrigerants) Regulation (Cap. 403 sub. leg.) (Commencement) Notice 1998 (L.N. 391 of 1998) may discuss the effect on the validity of an instrument if the instrument has not been laid before LegCo. The Subcommittee will hold its first meeting on 21 January 1999.
14. This paper will be sent to the Administration for their written response. Upon receipt of the Administration's response, members may consider whether they are prepared to accept, as a matter of policy, that determinations of maximum fares made by the Commissioner under section 33(1) of Cap. 104 are administrative in nature. If not, members may wish to urge the Administration to amend the mechanism for the determination and adjustment of fares for licensed ferry services.
FUNG Sau-kuen, Connie
Assistant Legal Adviser
Legislative Council Secretariat
18 January 1999