Provisional Legislative Council

PLC Paper No. CB(1)172
(These minutes have been
seen by the Administration)

Ref : CB1/BC/1/97

Bills Committee on
Legislative Provisions
(Suspension of Operation) Bill 1997

Minutes of Meeting held on Monday, 14 July 1997, at 8:30 a.m. in the Chamber of the Legislative Council Building

Members present :

Hon IP Kwok-him (Chairman)
Hon WONG Siu-yee
Hon HO Sai-chu
Dr Hon Raymond HO Chung-tai
Prof Hon NG Ching-fai
Hon Mrs Selina CHOW, JP
Hon Henry WU
Hon NGAI Shiu-kit, JP
Hon MA Fung-kwok
Dr Hon Mrs TSO WONG Man-yin
Hon Mrs Sophie LEUNG LAU Yau-fun, JP
Hon CHAN Yuen-han
Hon TSANG Yok-sing
Hon YEUNG Yiu-chung
Hon LAU Kong-wah
Hon Mrs Miriam LAU Kin-yee, JP
Hon CHENG Yiu-tong

Members absent :

Hon James TIEN Pei-chun, JP
Hon Ronald ARCULLI, JP
Hon CHAN Choi-hi
Hon Andrew WONG Wang-fat, JP
Hon Kennedy WONG Ying-ho
Hon Charles YEUNG Chun-kam

Member in attendance :

Hon CHENG Kai-nam

Public officers attending :

Mr Paul TANG
Director of Administration

Mr Joseph WONG
Secretary for Education and Manpower

Mr Matthew CHEUNG
Deputy Secretary for Education and Manpower

Ms Esther LEUNG
Principal Assistant Secretary for Education and Manpower

Miss J A Willis
Commissioner for Labour

Mr Alfred CHAN
Deputy Commissioner for Labour

Mr TSANG Kin-wo
Assistant Commissioner for Labour

Mrs Jenny CHAN
Assistant Commissioner for Labour (Rights and Benefits)

Mr Stanley WONG
Principal Assistant Secretary for Planning, Environment & Lands

Mr John Dean
Principal Assistant Secretary for Home Affairs

Mr Peter WONG
Senior Assistant Solicitor General

Ms Carmen CHU
Senior Government Counsel

Attendance by invitation :

Society for Protection of the Harbour

Mr Winston CHU

Miss Christine LOH
Deputy Chairman

Mrs CHU FOK Wing-yue
Financial Sponsor

Mr Benjamin CHANG
Member and Legal Adviser

Mr Uriah TSE Chak-tong
Member and Legal Adviser

Clerk in attendance :

Miss Polly YEUNG
Chief Assistant Secretary (1)3

Staff in attendance :

Mr Jimmy MA
Legal Adviser

Ms Connie SZE-TO
Senior Assistant Secretary (1)5

I.Meeting with the Administration and the Society for Protection of the Harbour

(PLC Paper No. CB(1)32/97-98, written submission of the Society tabled and subsequently despatched to all Hon Members)

The Chairman informed the meeting that he had agreed to accept the late membership of Mr Henry WU and Mr NGAI Shiu-kit as they were away from Hong Kong when membership was called. The Bills Committee continued to discuss the remaining two Ordinances proposed to be suspended under the Bill.

Protection of the Harbour Ordinance

2. At the Chairman' s invitation, Mr Winston CHU and Miss Christine LOH of the Society for Protection of the Harbour presented their objections to the proposed suspension of the Ordinance as follows -

  1. the Ordinance was the only piece of legislation to protect the Victoria Harbour from excessive reclamation. The proposed suspension would render the Ordinance ineffective and as a result, the Administration could carry out reclamation projects without first exploring other alternatives;

  2. the Ordinance received overwhelming public support. Apart from a public opinion survey in which 90% of the respondents were against harbour reclamation and supported legislation to protect the environment of the harbour, over 150,000 persons had expressed support for the Protection of the Harbour Bill during its extensive two-year public consultation;

  3. the Ordinance was not intended to prohibit reclamation but to require the responsible authorities to proceed with reclamation of the harbour as a last resort. Section 3 of the Ordinance only raised a presumption against reclamation in the central harbour and imposed a public law duty on public officers and public bodies to have regard to this principle. There were similar legislative provisions for the protection of country parks; and

  4. although the term ' reclamation ' in the Ordinance was defined to include ' any work over and upon any foreshore and sea-bed ' , reclamation projects for the construction of essential infrastructural facilities would not be affected as it was highly unlikely that judicial review would be sought for projects which would be beneficial to the whole community, such as the building of highways, or routine projects like recovery of wrecks.

3.Pointing out that the Hong Kong Institution of Engineers (HKIE) had expressed concern about the implications of the Ordinance, Mr Raymond HO asked whether there had been consultation with professional bodies on the Bill. In response, Miss Christine LOH confirmed that the former Bills Committee studying the Bill had received submissions from a number of professional bodies including the HKIE, the Hong Kong Institute of Architects and the Hong Kong Institute of Planners, and had met with most of the professional associations and ' green ' bodies. The majority of the deputations had expressed support for the Bill.

4. At the Chairman ' s invitation, the Principal Assistant Secretary for Planning, Environment & Lands (PAS/PEL) stressed that it was necessary to suspend operation of the Ordinance to allow time for a full examination of its implications. The Administration considered that the Ordinance had given rise to implementation difficulties and possible legal ambiguities. Section 3 only stipulated the presumption against reclamation as a general and declaratory principle without prescribing the implementation details. Public officers/bodies were unclear about the factors and circumstances to be taken into account when considering the option of reclamation. Besides, uncertainties and delays might be caused to routine projects and four major reclamation projects under planning in the Territorial Development Strategy Review (TDSR) 1996.

5. Some members were not convinced of the Administration ' s reasons for suspending the Ordinance. Noting the Administration ' s clear stance of opposing the Ordinance, Mrs Selina CHOW opined that the proposed suspension was only a tactic to delay commencement of the Ordinance. She further urged the Administration to stipulate in the Bill the proposed suspension period.

6.In response, PAS/PEL clarified that the Administration considered the Ordinance unnecessary as the existing mechanism for dealing with harbour reclamation was open, transparent and underpinned by extensive public consultation. Specific work projects were gazetted under the Foreshore and Sea-bed (Reclamations) Ordinance, Cap.127, and approval from the Public Works Subcommittee (PWSC) of the Finance Committee was required before reclamation projects in Public Works Programmes could proceed. He reiterated that the proposed suspension was to allow time for studying the implications of the Ordinance. Moreover, in view that the TDSR was expected to be finalized by the end of September 1997, it was prudent for the Administration to consider the findings of the Review before formulating its proposed way forward. PAS/PEL also assured members that the Administration would not commence any major reclamation works during the proposed suspension of the Ordinance. At a member ' s request, the Administration would provide a sketch showing the areas covered by the four major reclamation projects under planning for members ' reference.


(Post-meeting note : The sketch was circulated to members vide PLC Paper No. CB(1)46.)

7. In reply to members ' enquiries about the statutory presumption under the Ordinance, Legal Adviser (LA) confirmed the advice given to the former Bills Committee that section 3 of the Ordinance, though unusual in legislation, was legally effective. He remarked that in considering litigations under the Ordinance over land use issues, the court would decide whether the public officers/bodies concerned had given due consideration to all relevant factors and circumstances in the planning and implementation of development projects. Although the operational mechanism of the principle of presumption against reclamation had not been spelt out in the Ordinance, the court would nevertheless take into consideration the legislative intent when interpreting relevant provisions in specific cases. As regards the definition of ' reclamation ' in the Ordinance, LA advised that notwithstanding its apparently broad coverage, the interpretation of the term would ultimately rest with the court. He also clarified that whilst the PWSC approved public funding for carrying out reclamation projects, the policy decision on harbour reclamation was a matter for the Administration.

Bill of Rights (Amendment) Ordinance 1997

8. The Principal Assistant Secretary for Home Affairs (PAS/HA) explained that the proposed suspension of the Amendment Ordinance was to enable the Administration to examine its implications since the Bill had not been scrutinized by a Bills Committee. The Administration considered that the Amendment Ordinance had caused uncertainity and confusion over the interpretation of sections 3 and 7 of the Bill of Rights Ordinance (BORO) and the amending provisions might have the effect of making BORO cases legally actionable between private citizens. Moreover, the decision of the Standing Committee of the National People ' s Congress (NPC) not to adopt section 3 of the pre-existing Ordinance might render the newly added section 3(3) and (4) meaningless.

9.In reply to members, PAS/HA confirmed the Administration ' s policy stance that the BORO should not provide a cause of action in disputes between private individuals. Mr NGAI Shiu-kit stated his support for the proposed suspension of operation of the Amendment Ordinance. Mrs Selina CHOW queried that if the Amendment Ordinance was inconsistent with the Administration ' s policy and the legislative intent of not providing for inter-citizen actions under the BORO, the Administration should consider repealing the Amendment Ordinance rather than suspending it. In response, the Senior Assistant Solicitor General explained that the Amendment Ordinance had the possible effect of reversing the Court of Appeal decision in the case of Tam Hing-yee v. Wu Tai-wai by establishing the application of the BORO as a defence in proceedings. However, the Administration was concerned that the amending provisions might even serve to introduce into the law an entirely new cause of inter-citizen action.

10. In reply to some members, LA advised that section 7, read in conjunction with section 6, provided clearly that the Ordinance would only bind the Government and all public authorities. As such, doubts about the possible application of the Ordinance in inter-citizen claims should not arise. Whilst commenting that it might be worthwhile to examine legal issues arising from the new section 3(3) and (4) in the light of the NPC ' s decision not to adopt the pre-existing section 3, LA stressed that it was a matter for the court to decide in relevant cases whether the BORO would be legally actionable between private citizens as a result of the amendments.

Suspension period(s) of the seven Ordinances

11. Some members requested the Administration to stipulate in the Bill the proposed suspension period of the seven Ordinances. The Secretary for Education and Manpower explained that the proposed stipulation of a suspension period might pose practical problems as the time required for scrutiny of amendment bills, if such were introduced, was not within the control of the Administration. In this connection, Mr HO Sai-chu urged the Administration to assure members at the Second Reading debate of the Bill that the Administration would consult the Provisional Legislative Council (PLC) on the outcome of its study and the proposed way forward by the end of September 1997. Members noted that should they wish to stipulate different suspension period(s) for each of the seven Ordinances, they were at liberty to move the necessary Committee stage amendments (CSAs). In this connection, LA advised that pursuant to the Bill, the operation of the Ordinances would be suspended until such dates to be appointed by the relevant policy Secretaries by notice in the Gazette. The PLC could scurtinise these gazetted items of subsidiary legislation in accordance with the ' negative vetting ' procedures under section 34 of the Interpretation and General Clauses Ordinance (Cap.1) and if necessary, amend or repeal the subsidiary legislation in question.

Clause-by-clause examination of the Bill

Clause 2

12.The Bills Committee had not taken a position on the proposed suspension of the Protection of the Harbour Ordinance. Mrs Sophie LEUNG indicated that she might move a CSA to stipulate the suspension period of the Ordinance.

13. Responding to some members ' concerns, PAS/PEL assured members that the Administration would confirm at the Second Reading debate of the Bill that in the mean time, the Administration would not commence any major reclamation works even if the proposed suspension was passed.

Clause 3

14.Members had different views on the proposed suspension of the Occupational Deafness (Compensation) (Amendment) Ordinance 1997. Some members were not convinced of the need to suspend the Amendment Ordinance while other members considered it advisable for the Labour Advisory Board to study the Administration ' s improvement proposals arising from its recent review of the Occupational Deafness Compensation Scheme before amendments were to be introduced.

15. Four members voted against the proposed suspension of the Ordinance. Two members voted for it. The remaining members present at the meeting reserved their position. Members also agreed that the Chairman would move a CSA to delete this clause on behalf of the Bills Committee.

Clause 4

16. Members did not take a position on the proposed suspension of the Bill of Rights (Amendment) Ordinance 1997.

Clause 5

17. Members noted that the Trade Unions (Amendment) (No.2) Bill 1997 had been scrutinized by a Bills Committee but no consensus was reached on some of the contentious proposals. The Bills Committee had not taken a position on the proposed suspension of the Ordinance.

Clause 6

18. Members concurred that the Employee ' s Rights to Representation, Consultation and Collective Bargaining Ordinance contained a number of contentious issues which warranted further study. The Bills Committee had no objection to its proposed suspension to facilitate further examination by the Administration.

Clause 7

19. Miss CHAN Yuen-han remarked that the Employment (Amendment) (No.4) Ordinance 1997 had been discussed by the former LegCo Panel on Manpower, scrutinized by a Bills Committee under her chairmanship and thoroughly debated at the Second Reading debate. She did not support the proposed suspension of the Ordinance. Nevertheless, members noted that the Bills Committee concerned only met once and had not reached a consensus on the proposed provisions.

20. Members also noted that the Employment (Amendment) (No.5) Ordinance 1997 had not been scrutinized by a Bills Committee. In response to a member ' s enquiry, LA said that the Holidays (1997 and 1998) Ordinance passed by the PLC earlier on provided for three additional holidays in 1997 and the general holidays for 1998. However, 1 May had not been included as a holiday for 1998.

21. The Bills Committee did not reach a common position on the proposed suspension of the Employment (Amendment) (No.5) Ordinance 1997.

22. Members considered that the Employment (Amendment) (No.4) and (No.5) Ordinances 1997 should not be included under one clause in the Bill. In response, the Administration agreed to introduce the necessary amendment so that the two Ordinances could be dealt with separately at the Committee stage.Admin

Clause 8

23. The Administration clarified that even if the Bill seeking to suspend the operation of the seven Ordinances was enacted, it would not have any retrospective effect on the operation of the Ordinances in question.

24. In conclusion, the Chairman said that the Bills Committee had completed scrutiny of the Bill and he would make a verbal report on the Committee ' s deliberations at the special meeting of the House Committee on 15 July 1997.

II. Any other business

25.Members noted that the President had agreed to extend the deadline for giving notice to move CSAs to 1:00 pm on 15 July 1997.

26. The meeting ended at 11:15 am.

Provisional Legislative Council Secretariat
3 September 1997