LegCo Paper No. CB(2)2163/96-97
(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,
Sex and Disability Discrimination (Miscellaneous Provisions) Bill 1996 and
Family Status Discrimination Bill
Minutes of the 5th Meeting
held on Tuesday, 1 April 1997 at 4:30 pm
in the Chamber of the Legislative Council Building
Members Present :
Members Absent :
Hon LAU Wong-fat, OBE, JP
Hon Emily LAU Wai-hing
Hon Zachary WONG Wai-yin
Hon LEE Cheuk-yan
Hon CHEUNG Hon-chung
Hon LAU Chin-shek
Hon LEUNG Yiu-chung
Public Officers Attending :
- Item III
- 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
- Mr CHOI Chi-wa
- Commissioner for Rehabilitation
- Mr Esmond LEE
- Principal Assistant Secretary for Planning, Environment and Lands
- Miss Agnes TSE
- Assistant Secretary for Security
- Mr Howard CHAN
- Assistant Secretary for Security
Attendance by Invitation :
- Item II
Heung Yee Kuk New Territories
- Mr LAM Kwok-yin
- Vice-chairman
- Mr LAM Wai-keung
- Vice-chairman
- Mr HO Sun-kuen
- Ex-officio Executive Councillor
- Mr CHUNG Yick-ming
- Chairman of Tai Po rural committee
- Mr TANG Sik-hung
- Chairman of Ping Shan rural committee
- Mr LAM Kwok-cheong
- Co-opted Councillor
- Mr TANG Siu-tong
- Ex-officio Executive Councillor
- Mr CHEUNG Fo-tai
- Ex-officio Executive Councillor
- Mr HUI Chun-chui
- Ex-officio Councillor
- Mr WAN Ah-fat
- Ex-officio Councillor
- Mr WONG Hing-lung
- Ex-officio Councillor
- Mr LAM Chiu-kuen
- Ex-officio Councillor
- Mr LI Yiu-ban
- Ordinary Executive Councillor
- Mr TSANG Hin-keung
- Ordinary Executive Councillor
- Mr William H C WAN
- Ex-officio Executive Councillor
- Mr MA Hing-fung
- Ordinary Executive Councillor
- Ms LAU Fung-yee
- Senior Secretary
- Equal Opportunities Commission
- Dr Fanny CHEUNG Mui-ching
- Chairperson
- Mrs Angela HO CHOI Wai-yee
- Chief Executive
- Alexandra PAPADOPOULOS
- Legal Adviser
- Mr Adam MAYES
- Personal Assistant to Hon Christine LOH
Clerk in Attendance :
- Mrs Anna LO
- Chief Assistant Secretary (2) 2
Staff in Attendance :
- Ms Kitty CHENG
- Assistant Legal Adviser 2
- Mr Colin CHUI
- Senior Assistant Secretary (2) 2
I.Confirmation of minutes of meeting
(LegCo Paper No.CB(2)1667/96-97)
The minutes of meeting held on 11 March 1997 were confirmed.
II.Meeting with Heung Yee Kuk New Territories (HYK)
2.Representatives of HYK went over HYK's revised submission on the Sex and Disability Discrimination (Miscellaneous Provisions) Bill 1996 and an extract of a book entitled " 基本法透視 " (LegCo Paper No. CB(2)1697/96-97 referred) tabled at the meeting. HYK urged LegCo Members to vote down clause 12 of the Bill on expiry of the existing exception provision of the Sex Discrimination Ordinance (SDO) related to the Small House Policy. It also requested for early clearance of the huge backlog of small house applications.
3.Some members opined that applying the principle of equal rights for all citizens of Hong Kong, it would be unfair that only indigenous villagers had a right to build small houses in the New Territories. The Small House Policy was outdated at this time and age and should therefore be discontinued. As an interim measure, they suggested a cut-off date for the Small House Policy to facilitate better land utilisation and avoid continuous backlog of small house applications. Representatives of HYK gave a brief account of the background of the Small House Policy. Before the New Territories was leased to the British Government in 1898, indigenous inhabitants had a right to construct houses on their land without prior approval of the Manchurian Government of the Qing Dynasty. The Hong Kong Government took away the right through the Block Crown Lease in 1905. The small house policy was formulated in 1972 to restore part of this right. Since small houses could only be built within the perimeter of 300 feet from the indigenous villages concerned, indigenous inhabitants might not be able to build more small houses when the land within the boundary was fully utilised.
4.Miss Christine LOH said that inclusion of the exception provision on the small house policy in SDO indicated that the policy related to sex discrimination. Referring to para 2 of its submission, HYK considered that the policy was not related to sex discrimination becuase traditionally heads of families, who were usually males, were allowed to build houses for themselves. HYK would not object to extending the policy to cover both male and female indigenous inhabitants. The implications of removing the exception on the housing needs of the indigenous villagers who were not entitled to public housing benefits must be addressed before removing it.
5.A member was concerned whether the Small House Policy was consistent with the international covenants and the laws of the Hong Kong Special Administration Region referred to in Articles 39 and 40 of the Basic Law. HYK said that lawful traditional rights and interests of the indigenous inhabitants of the "New Territories" referred to in Article 40 of Basic Law were rights and interests consistent with Hong Kong laws.
III.Examination of the Sex and Disability Discrimination (Miscellaneous Provisions) Bill 1996 introduced by Miss Christine LOH
6.The Chairman said that since Mr LAU Chin-shek was out of town, the Bills Committee would start to examine Miss Christine LOH's Bill.
Equal Opportunities Commission (EOC)'s position on the Bill
7.Referring to its paper (Paper No.CB(2)1377/96-97(01)), representatives of EOC briefed members on EOC's position in respect of Miss LOH's Bill. They highlighted that any changes to SDO and the Discrimination Disability Ordinance (DDO) should only be made after the development of local experience and comprehensive review of the two Ordinances by EOC to be conducted in December 1997.
8.Miss Christine LOH expressed her disappointment in EOC which was trying to evade its responsibility. For some issues of policy (e.g. the Small House Policy), it was not necessary to await the comprehensive review.
The Administration's position on the Bill
9.Representatives of the Administration took members through its position on the Bill set out in para 2 and 3 of its paper (Paper No.CB(2)1258/96-97 referred). They highlighted that the Administration did not support the Bill as amendments to SDO and DDO should only be considered after gaining actual experience of the implementation of these two Ordinances.
Matters arising from the meeting on 3 March 1997
10.The Administration's response to the issues relating to Miss LOH's Bill raised at the meeting on 3 March 1997 was as follows -
Proposed deletion of exception for acts safeguarding security of Hong Kong (Clause 11)
(a) Miss LOH requested the Administration for detailed explanation and examples on why the proposed deletion of the exception clause for acts safeguarding security of Hong Kong (section 59 of SDO) could undermine security of the territory. The Administration pointed out that the exception was necessary for acts done for the purpose of safeguarding the security in Hong Kong. Such acts could only be authorised by the Chief Secretary. It could not provide examples of such acts in the absence of precedents. Noting that DDO did not have such an exception, Miss LOH asked the Administration for the reason of the inconsistency. She understood that similar provision(s) of the United Kingdom (UK) laws was struck down in the European Court. In this connection, the Administration was requested to revert to the Bills Committee on the background of similar provision(s) in UK laws and whether there were examples from UK experience.
Proposed expiry of existing exception provisions after a maximum of two years following enactment of the Bill
Exception for sex discrimination in certain practices of the disciplined services (Schedule 5 Part 2 item 1)
(b) Representatives of the Administration said that the Security Branch would review the exceptions set out in Schedule 5 Part 2 item 1 of SDO and forward its views to EOC for the latter's comprehensive review of SDO and DDO in December 1997. At Miss LOH's request, the Administration undertook to provide further information on certain practices of the disciplined services (including requirements relating to height, uniform, weight or equipment and firearms training etc) referred to in Schedule 5 Part 2 item 1(a) and (d) of SDO.
(Post-meeting note: Further information on certain practices of the disciplined services provided by the Administration was circulated to members vide LegCo Paper No.CB(2)1896/96-97.)
Exception for sex discrimination in the Small House Policy (Schedule 5 Part 2 Item 2)
(c) In response to the Chairman, the Administration pointed out that it was conducting a comprehensive review of the Small House Policy which included, among other things, the issues of land supply, adequacy of existing arrangements and options on the way forward. In view of the complexity of the issues involved in the Policy and the need for consultation, the Administration was unable to indicate when the review would be completed. Pending the result of the review, the Administration did not support the Bill's proposal to remove the exception in respect of the Small House Policy.
(d) In reply to Miss LOH, representatives of the Administration said that the Small House Policy did not confer legal rights on the indigenous villagers. The purpose and effect of the exception in the Ordinance was to reserve the Government's right to continue to operate the present policy. At members' request, the Administration undertook to provide details of the background of the policy and revert to the Bills Committee on whether removal of the exception provision for the Small House Policy would result in a breach of Article 40 of the Basic Law.
(Post-meeting note : Further information on the Small House Policy provided by the Administration was circulated to members vide LegCo Paper No. CB(2)1920/96-97.)
Exception under Schedule 5 part 2 item 3 (b) (i)
(e) The Administration pointed out that the removal of exceptions relating to housing under Schedule 5 part 2 item 3(b)(i) would make disciplined services quarters open to single officers also. This would result in significant increase in the demand for quarters which would aggravate the current shortage of quarters. Due to the limitation of resources, departments still need to prioritise the allocating of quarters to married officers. The Administration further added that although single officers in the disciplined services were not eligible for departmental quarters, they were not in any way deprived of other civil service housing benefits. In reply to a member, the Administration undertook to seek legal advice on whether section 48 of the SDO would be sufficient to avoid rendering the existing policy on quarters unlawful.
(Post-meeting note : Information on legal advice received by the Administration was circulated to members vide LegCo Paper No. CB(2)1920/96-97.)
Exception under Schedule 5 part 2 item 6
(f) The Administration would review the exception under Schedule 5 part 2 item 6 relating to the Home Ownership Scheme or Private Sector Participation Scheme towards the end of 1997 after gaining experience in its operation.
Exception under Schedule 5 part 2 item 8
(g) As the Royal Hong Kong Auxiliary Police Force (Pensions) Regulations (Cap 233 sub leg) referred to in the exception under Schedule 5 Part 2 item 8 had been repealed, the Administration did not object to but at the same time failed to see any urgent need for deleting the exception at present.
11.In response to the Chairman, representatives of the Administration said that as EOC would conduct a comprehensive review of the two Ordinances in December 1997, it was nether desirable nor appropriate to introduce amendments (such as the proposals to delete or set expiry date(s) on the existing exception provisions in SDO and DDO) to the two Ordinances before completion of the review. LegCo Member(s) putting forward such amendments before the completion of the review should justify the need and urgency of doing so.
Matters arising from the meeting on 17 March 1997
12.The Administration's response to the matters arising from the meeting on 17 March 1997 was as follows -
(a) details of reservations entered by the Hong Kong Government on the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) which was referred to in clause 2(e) of the Equal Opportunities (Family Responsibility, Sexuality & Age) Bill would be forwarded to the Bills Committee after the meeting.
(b) the Administration's legal advice on the impact of linking the Equal Opportunities (Family Responsibility, Sexuality & Age) Bill with International Labour Organisation Recommendations would be provided to the Bills Committee shortly.
(c) the Government's Bill to outlaw family status discrimination would be available in two weeks' time.
(Post-meeting note : Information referred to in items (a) and (b) was circulated to members vide LegCo Paper Nos.CB(2) 1737/96-97(02) and 1822/96-97(01) respectively. The Government's Bill entitled "Family Status Discrimination Bill" was circulated to all LegCo Members vide LegCo Paper No.CB(3)811/96-97.)
IV. Date of next meeting
13.The next meeting would be held on 17 April 1997 at 10:30 am in Conference Room A of the Legislative Council Building to examine Miss LOH's Bill clause-by-clause.
14.The meeting ended at 6:28 pm.
LegCo Secretariat
6 May 1997
Last Updated on 16 December 1998
