2. Referring to his paper, Mr LAU Chin-shek briefed members on the main provisions of the Bill and his response to the Administrations position on it.

3. The Administration supported the elimination of all kinds of discrimination. However, having conducted studies into and consulted the public regarding discrimination on the grounds of family responsibility, sexuality and age, the Administration did not believe the enactment of Mr LAUs Bill was appropriate.

Family responsibility

4. Mr LAU Chin-shek said that the Domestic Violence Ordinance, Wills Ordinance and Employees Compensation Ordinance covered non-matrimonial relationship. The Administration, however, objected to inclusion of co-habitation and de-facto spouse in the definition of family responsibility. The reason for the objection was that the Administration only recognised husband-and-wife relationship under the marital system, and relationships by consanguinity and affinity. To make an absolute distinction between matrimonial and co-habiting relationships was not only unjustified, but also against the spirit of the existing laws. The protection provided by the Bill to an individual was subject to a genuine discharge of his or her family responsibility on the basis of a truthful family life. As such, persons with matrimonial and co-habiting relationships should be equally protected under the Bill.

5. The Administration pointed out that, in view of clear public support for legislation, it planned to introduce into the Legislative Council (LegCo) a bill to eliminate discrimination on the ground of family status by April 1997. Like the Sex Discrimination Ordinance (SDO), the bill would outlaw discrimination in the areas of employment, education, disposal and management of premises, provisions of goods and services as well as activities of clubs and government. The Administration stated that, according to its public consultation exercise carried out in early 1996, an overwhelming majority of respondents (over 90% of the 8,000 submissions received) had expressed strong reservation and disapproval to giving legal recognition to co-habitation and de-facto spouse respectively. As such, co-habitation and de-facto spouse would not be covered in the bill.

Sexuality

6. Mr LAU Chin-shek said that legislators of the current and the last terms had noted the concern among some members of the public that the Bill, once passed, might encourage homosexual behaviours. He considered that sexuality was not the result of nurture, encouragement or moulding. The enactment of legislation on the subject would establish a moral standard for the community, penalise and deter discriminatory acts and prompt the Administration to implement relevant policies for the protection of rights of the public. To protect homosexuals from discrimination through legislation would not encourage homosexuality. Similarly, legislation on divorce was not enacted for the purpose of advocating divorce. Rather, it aimed at relieving the pain of couples who were unable to maintain matrimonial relationship. If some members of the community were concerned about the sexuality aspect of the Bill, legislators should enlighten them rather than taking the publics misconception as the basis for casting votes.

1. Mr LAU Chin-shek added that the Administration intended to use the rate of response to its consultation paper as an indicator of the need for legislation against discrimination on the grounds of sexuality and age. It, however, did not take into consideration the spirit of anti-discrimination legislation to protect the aggrieved persons. It was immoral and unjust for those who were not victims of discrimination to decide not to pass legislation to protect the aggrieved persons. Every one had a right not to be discriminated. Both public education and anti-discrimination legislation were important in eliminating discrimination.

8. Representatives of the Administration said that the Administration conducted a study and public consultations on this issue in 1995/96, and announced its findings in June 1996. In the course of the study and consultations, the Administration kept an open mind on the merits of legislation and other options. 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. The Government therefore would neither put forward nor support anti-discrimination legislation in this area. Referring to para 5 of the Administrations paper, representatives of the Administration briefed members on the administrative measures the Administration had taken and stated that all these efforts would continue.

9. On the question of whether respondents opposing legislation considered that discrimination on the ground of sexuality existed in Hong Kong, the Administration pointed out that there were divergent views on this issue. A member held the view that since such discrimination existed in the territory, anti-discrimination legislation, as well as other administrative measures, was necessary to tackle the problem as soon as possible.

10. Some members considered that the findings of the public consultation exercise, including those of a questionnaire on homosexuality, were misleading. The Administration should take into account protection of rights of the sexual minorities, which was consistent with the principles of democracy, in determining the necessity of legislation against discrimination in this area.

11. The Administration did not consider the findings misleading. In fact, the submissions received as well as the findings were set out in detail in a compendium. The 1996 consultations indicated strong public opposition to anti-discrimination legislation in this area; its introduction at the present time would therefore be premature. It hoped that members would wait and see the result of the measures that the Administration was taking to address this area of discrimination before considering the necessity of legislation. In reply to the Chairman, the Administration pointed out that it had not set any particular percentage as an indicator of clear public support for legislation.

12. Some members considered that public perception of the sexual minorities might not change and there might still be about 70% of the public opposing legislation in this area some years after. Representatives of the Administration believed that public education could address common misunderstanding about the sexual minorities and gain better acceptance of their right to equal opportunities.

13. A member enquired whether sexuality was, as suggested by Mr LAU Chin-shek, not the result of nurture, encouragement or moulding. The Administration responded that there was no conclusive medical view on whether sexuality was by nature or by nurture.

14. On the question of the number and sources of the pre-printed opinion forms in response to the consultative paper on sexuality, the Administration pointed out that a total of 9,829 pre-printed opinion forms were received. 85 % of these submissions indicated strong opposition to legislation in respect of sexual orientation. It would provide members with the compendium of submissions in respect of the consultation paper.

Admin

(Post-meeting note: The compendium of submissions in respect of the consultative documents on discrimination on the grounds of family status and sexual orientation was circulated to members vide LegCo Paper No.CB(2)1536/96-97.)

Age

15. Mr LAU Chin-shek said that the Administration only stressed on the low response rate to the public consultation paper on age discrimination in deciding not to introduce age discrimination legislation. But a survey commissioned by the Administration revealed a higher unemployment rate of people aged 45 or above. People of this age group had a lower pay increase and a higher chance of dismissal. Very few of them were in posts with promotion prospects. For each of the three surveys on job advertisements conducted by the Labour Department, there were over 3,000 advertisements with age requirements. In determining whether legislation against age discrimination should be introduced, the Administration did not take into consideration evidence and information on age discrimination revealed in the surveys conducted by academics, women organisations and labour unions. He reiterated the points in para 7 and stressed that both public education and anti-discrimination were important in eliminating discrimination.

16. Representatives of the Administration pointed out that the low response rate to the public consultation paper (with only 68 submissions received by the end of the two-month consultation period) indicated that discrimination in employment on the ground of age was not a pressing issue to the community. There were also divergent views as to whether age discrimination legislation should be introduced. Based on the outcome of public consultation conducted by the Administration last year, it had informed Members of its view that a sustained programme of public education, publicity and self-regulation would be the most appropriate way to deal with discrimination in employment on the ground of age. They should be more effective in changing attitudes than legislative sanctions; and the purpose of the relevant clauses in the Bill could be achieved by strengthening the Administrations current and planned activities in the following areas - (a) publicity and public education measures; (b) practical guidelines for employers; (c) employment services; and (d) retraining.

(Post-meeting note: Strengthening of the Governments current and planned activities in the four areas was described in detail in a letter of 3 March 1997 from the Secretary for Education and Manpower to all LegCo Members.)

17. The Administration pointed out that it would review the situation after the public education programme had been running for a period of time, say, one year. If there was no improvement, it would seriously consider the need for legislation.

18. Representatives of the Administration added that in the consultation exercise, members of the public were also invited to comment on any other areas where they believed age discrimination was an issue. Very few comments were received.

Age requirements in job advertisements

19. On the question of age requirements in job advertisements, the Administration pointed out that employers placing vacancy orders with the Labour Departments Local Employment Service were not allowed to specify any age requirements. The Administration would continue to call on employers to consider ability, not age, in employment situations.

20 A member enquired the criteria to justify legislation against age discrimination. The Administration responded that opinion polls on the necessity for a legislative approach would be conducted some time after the launch of the sustained programme of public education, publicity and self-regulation. The Administration would take into account these views in deciding the way forward.

Overseas experience

21. A member said that, when a LegCo delegation visited Australia and New Zealand in 1996, representatives of the two governments said that they had difficulties in enforcing legislation in this area. Nevertheless, they considered that both anti-discrimination legislation and public education were required to eliminate discrimination in this area. The Administration pointed out that a large number of countries such as those in the European Union did not have legislation on age discrimination. As stated in the Administrations consultation paper on discrimination in employment on the ground of age, the European Union had non-binding resolutions which, among other things, called for the strict application of the principle of equal opportunities and equal treatment for older workers. At a members request, the Administration undertook to check whether European Union countries had specific age discrimination legislation. The Administration reiterated its decision to launch a sustained programme of public education, publicity and self-regulation and its undertaking to review the situation as set out in para 16 and 17 of the minutes.

Admin

Involvement of EOC

22. Regarding the resource implications on the implementation of the Bill if it were passed by LegCo, the Administration pointed out that as no resources were earmarked to implement the Bill, EOC would not be involved in the implementation of the Bill. Indeed, to involve EOC would have a charging effect. Mr LEE Cheuk-yan said that the Hong Kong Confederation of Trade Unions agreed with EOC that it would be desirable for the Commission to be charged with the function of implementing the Bill. In response to Mr LEEs enquiry, ALA4 advised that, under Standing Order (SO) No. 45(6)(c), the Governor could expressly authorise or permit a Member to put forward an amendment which may have a charging effect. The Administration undertook to seek the Attorney Generals Chambers advice on the issue.

23. A member opined that the Administration should show its sincerity in eliminating age discrimination by allowing EOC to be involved in implementing the Bill. The Administration responded that its sincerity was simply demonstrated by the strengthening of its current and planned promotional and educational activities such as its first Announcement of Public Interest calling on employers to consider ability (not age) in employment situations, $2 million earmarked each year for a sustained public education and promotion campaign and the practical guidelines for employers on how to eliminate age discrimination in employment. The Administration would take the lead in involving the employers associations, trade unions, employee groups and LegCo Members in the exercise.

Admin

Consequential amendments to section 3 of the Bill of Rights Ordinance (BORO)

24. In reply to the Chairman, the Administration pointed out that the provision in clause 103 of the Bill (proposed amendment to section 3 of the Hong Kong Bill of Rights Ordinance) was not consequential to the Bill and its long title. In this respect, it offended clause XXV of the Royal Instructions on intermixing in the same ordinance subject matters that "have no proper relation to each other". It supplemented that the Law Draftsmans certificate was only on the format of a Members bill rather than its content. ALA4 advised that the certificate was issued pursuant to SO 39(1A) if the Law Draftsman was satisfied that a Members bill conformed to the requirements of SO 38 (Form of Bills) and the general form of Hong Kong legislation. The phrase "general form of Hong Kong legislation" had a wide meaning and clause XXV of the Royal Instructions only required the Governor and the Legislative Council (LegCo) to observe, "as far as practicable", Rules set out in the clause. The Administration undertook to seek legal advice on the issue.

Admin

(Post-meeting note : The Administrations legal advice on the issue was set out in its letter to the President of LegCo which was tabled at the Bills Committee meeting on 17 March 1997 (LegCo Paper No. CB(2)1570/96-97 referred).)

III. Briefing on the Equal Opportunities (Race) Bill and response of the Administration

(Paper No. CB(2)1369/96-97(02) provided by Mrs Elizabeth WONG)

(Paper No. LS206/95-96 provided by the Legal Service Division of the LegCo Secretariat)

(Paper No. CB(2)1258/96-97 provided by the Administration)

(Paper No. CB(2)1377/96-97(01) provided by EOC)

25. As Mrs Elizabeth WONG who was the Member in charge of the Bill was out of town, the Chairman invited ALA4 to brief members on the Bill. Referring to Mrs WONGs paper and the Legal Service Division report, ALA4 took members through the main provisions of the Bill.

26. Representatives of the Administration said that a consultation paper "Equal Opportunities : a study on Discrimination on the Ground of Race" was published on 19 February 1997 to solicit public views on the subject. On the question of international obligation to have legislation against racial discrimination, the Administration pointed out that its study on racial discrimination had the support of the United Nations Committee on the Elimination of Racial Discrimination (CERD) which considered that, where racial discrimination was found to exist, the study could serve as an important basis for the development of solutions. The Administration maintained an open mind on the merits of legislation and other options. It hoped that members would take account of CERDs view and await the outcome of the consultation exercise before deciding whether legislation was required. While the time required to analyse the public views depended on the number of submissions received, the Administration had undertaken to report back to LegCo within the current session. A member said that there was an international obligation to enact laws against discrimination and the United Nations Human Rights Committee which was responsible for the implementation of the International Covenant on Civil and Political Rights (ICCPR) did encourage and remind the Hong Kong Government to do so.

Impact on immigration law and policy

27. In reply to the Chairman, the Administration undertook to provide more information and examples on the impact of the Bill on immigration law and policy set out in para 5 of its paper.

Admin

Consequential amendments to section 3 of BORO

28. The Administration reiterated its undertaking in para 24 that it would seek legal advice on the issue.

IV. Briefing by Miss Christine LOH on the Sex and Disability Discrimination (Miscellaneous Provisions) Bill 1996 and response of the Administration

(Paper No. CB(2)1369/96-97(01) provided by Miss Christine LOH)

(Paper No. CB(2)1258/96-97 provided by the Administration)

(Paper No. CB(2)1377/96-97(01) provided by EOC)

29. Miss Christine LOH briefed members on the main provisions of the Bill. She was disappointed that EOC did not comment on the provisions of the Bill. She considered that EOC evaded its responsibility, by taking the view that it was premature to consider amending any of the existing provisions of SDO and the Disability Discrimination Ordinance (DDO) without local operational experience and that changes to the two Ordinances should only be made after the development of local experience and after comprehensive review by EOC proposed to be conducted in December 1997.

30. Miss LOHs response to the comments by the Administration and EOC on the Bill was as follows -

While some of the international instruments and international obligations the Bill sought to introduce were not binding on Hong Kong, the Administration agreed that it was an implied position that they were related to Hong Kong. The Bill provided an express option to allow EOC to promote international standards relevant to the two Ordinances when it considered necessary.
With the introduction of a new definition for "indirect discrimination", the existing test used to identify indirect discrimination would be replaced by a simplified test used in recent Australian legislation. The reasons for changing the existing test, which was copied from legislation of the United Kingdom (UK) and had been criticised by UK EOC, was explained in para 7 of her paper.

One of the proposed deletions of exceptions was in clause 11 which sought to remove the exception for acts safeguarding security of Hong Kong. The Administration had not made clear what acts the exception was intended to authorise, but an act done for the purpose of "safeguarding security" fell within its scope regardless of whether that act was reasonable or was necessary to achieve the purpose. She hoped that the Administration would provide more information and examples to explain the exception.

Admin

She requested the Administration to explain in detail the reasons for opposing to the proposed expiry of the existing exception provisions after a maximum of two years following the enactment of the Bill.

Admin

As it was anticipated that the grace period for small employers would expire in a year or so when the Second Reading of the Bill was resumed, members might decide whether the proposed shortening of the grace period for small employers under the Bill would still be required.
The re-definition of remedies available to civil claimants under SDO included, inter alia, the addition of reinstatement and removal of $150,000 cap on damages.

31. The Administration stated that it did not support the Bill. As SDO and DDO were only fully commenced on 20 December 1996, the Administration firmly believed that it would be desirable to wait for some practical experience of their operation before coming to a view as to whether any amendments to these Ordinances were appropriate. Besides, EOC had just started to introduce and promote provisions in the two Ordinances to the community. It would certainly cause confusion to the public if a bill was put forward to amend the Ordinances. It was one of the duties of EOC, which was established to implement and promote the two Ordinances, to put forward necessary or desirable amendments to the Ordinances. As EOC had undertaken to conduct a review of the Ordinances one year after their full operation, the Administration hoped that members would wait until the outcome of EOCs review was available. The Administration would explain its position on the individual clauses of the Bill at later meetings of the Bill Committee.

32. Given that EOC undertook to review the Ordinances one year after their operation, a member would like to know which of the proposed amendments were on matters of principle and would not be withdrawn notwithstanding the outcome of the review. Miss LOH pointed out that the clause on indirect discrimination was an example of such amendments. As explained in para 6-7 of her paper, the UK experience indicated that the existing test used to identify indirect discrimination, which was copied from UK law, should be changed. Clauses on removal of exception for security in Hong Kong, removal of $150,000 cap on damages and addition of reinstatement as a civil remedy under SDO were other examples of such amendments.

33. On the question of $150,000 cap on damages under SDO, representatives of the Administration said that addition of the cap in the Sex Discrimination Bill was put forward by a Member rather than the Administration and passed in LegCo in 1995. Regarding the availability of remedy of reinstatement under DDO but not SDO, it pointed out that the two Ordinances handled different issues. The Administration reiterated that it would explain in detail its position on the individual clauses during the clause-by-clause examination of the Bill.

V. Way Forward

34. Members agreed that the three Bills would be studied in the following order -

Equal Opportunities (Family Responsibility, Sexuality & Age) Bill.
Sex and Disability Discrimination (Miscellaneous Provisions) Bill 1996.
Equal Opportunities (Race) Bill.

VI. Date of next meeting(s)

35. The Bills Committee decided that the coming meetings would be held as follows -

Date and Time	Venue Purpose
Tuesday, 11 March 1997 (4:30 p.m.)	Chamber Meeting with deputations
Monday, 17 March 1997 (4:30 p.m.)	Chamber Examination of the Equal Opportunities (Family Responsibility, Sexuality and Age) Bill

36. The meeting ended at 4:43 pm.

LegCo Secretariat
4 April 1997

Last Updated on 16 December 1998

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 2nd Meeting held on Monday, 3 March 1997 at 2:30 pm in the Chamber of the Legislative Council Building

I. Confirmation of minutes of last meeting and matters arising

II. Briefing by Mr LAU Chin-shek on the Equal Opportunities (Family Responsibility, Sexuality and Age) Bill and response of the Administration

Family responsibility

Sexuality

Age

Age requirements in job advertisements

Overseas experience

Involvement of EOC

Consequential amendments to section 3 of the Bill of Rights Ordinance (BORO)

III. Briefing on the Equal Opportunities (Race) Bill and response of the Administration

Impact on immigration law and policy

Consequential amendments to section 3 of BORO

IV. Briefing by Miss Christine LOH on the Sex and Disability Discrimination (Miscellaneous Provisions) Bill 1996 and response of the Administration

V. Way Forward

VI. Date of next meeting(s)

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 2nd Meeting
held on Monday, 3 March 1997 at 2:30 pm
in the Chamber of the Legislative Council Building