LegCo Paper No. CB(2)2314/96-97
(These minutes have been seen
by the Administration)
Ref : CB2/BC/55/95

Bill 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 6th Meeting
held on Thursday, 17 April 1997 at 10:30 am
in Conference Room A of the Legislative Council Building

Members Present :

    Dr Hon LEONG Che-hung, OBE, JP (Chairman)
    Dr Hon John TSE Wing-ling (Deputy Chairman)
    Hon LAU Wong-fat, OBE, JP
    Hon Zachary WONG Wai-yin
    Hon Christine LOH Kung-wai
    Hon LEE Cheuk-yan
    Hon Albert HO Chun-yan
    Hon LAU Chin-shek
    Hon LEUNG Yiu-chung

Members Absent :

    Hon Mrs Miriam LAU Kin-yee, OBE, JP
    Hon Emily LAU Wai-hing
    Hon CHAN Yuen-han
    Hon CHEUNG Hon-chung
    Hon Bruce LIU Sing-lee
    Hon NGAN Kam-chuen

Public Officers Attending :

Item III

Mr NG Hon-wah
Deputy Secretary for Home Affairs (Ag)
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

Hong Kong Federation of Women
Mrs Peggy LAM
Chairman
Mrs Rita LIU
Vice Chairman
Ms Elle SHUM Mun-ling
General Committee Member
Ms IP Shun-hing
General Committee Member
Mrs Susan CHAN
General Committee Member
Ms LEE Kwai-chun
Founding Member
Ms Maggie KOONG
Member
Ms LAU Sau-lai
Member
Mrs Susanna LAI
Member
Ms Louisa WONG
Member
Mrs Annette WU
Member
Ms Joyce KWAN
Member
Ms Shirley LOK Sik Yin
Chief Executive

Items II and III
Mr Adam MAYES
Personal Assistant to Hon Christine LOH
Mr CHEUNG Yuet-fung
Personal Assistant to Hon LAU Chin-shek

Clerk in Attendance :

Mrs Anna LO
Chief Assistant Secretary (2) 2

Staff in Attendance :

Mr Stephen LAM
Assistant Legal Advicer 4
Mr Colin CHUI
Senior Assistant Secretary (2) 2



I. Confirmation of minutes of meeting held on 3 March 1997

(LegCo Paper No.CB(2)1708/96-97)

The minutes of meeting held on 3 March 1997 were confirmed.

II. Meeting with the Hong Kong Federation of Women (the Federation)

(Paper No. CB(2)1633/96-97 (01) - submission from the Federation)

2. Representatives of the Federation went over the submission and highlighted the following -

  1. The Federation did not support the Equal Opportunities (Family Responsibility, Sexuality & Age) Bill. It was in support of the public bill entitled "Family Status Discrimination Bill" gazetted on 11 April 1997.
  2. The Federation did not support the Sex and Disability Discrimination (Miscellaneous Provisions) Bill 1996. Any changes to the Sex Discrimination Ordinance (SDO) and Disability Discrimination Ordinance (DDO) should be considered after development of local experience in implementing the two Ordinances.
  3. Regarding the Equal Opportunities (Race) Bill, the Federation did not consider racial discrimination a serious problem in Hong Kong. It took the view that civic education was the best method to eliminate racial discrimination. The Federation hoped LegCo Members to await outcome of the consultation exercise before considering whether anti-discrimination legislation in this area should be introduced to address the problem. The Bill should be put on hold in the mean time.

3. In reply to a member, representatives of the Federation stated that the Federation supported the principle of elimination of all forms of discrimination, but considered that not all forms of discrimination required anti-discrimination legislation. It was necessary to prioritize allocation of resources to meet different demands of the society. Local experience in implementing the two Ordinances had to be developed before considering whether the Equal Opportunities Commission (EOC) should be provided with additional powers and resources to deal with discrimination. The court might also require additional resources to deal with possible increase in litigation cases on discrimination after expiry of the grace period for small employers in July 1998.

III. Examination of the Sex and Disability Discrimination (Miscellaneous Provisions) Bill 1996

Matters arising from the meeting on 1 April 1997

4. The Administration’s response to the matters arising from the meeting held on 1 April 1997 was as follows -

Proposed deletion of exception for acts safeguarding security of Hong Kong

(Clause 11)

5. Representatives of the Administration said that section 59 of SDO, which excluded acts safeguarding security of Hong Kong from being declared unlawful under the Ordinance, was similar to section 52 of the United Kingdom (UK) Sex Discrimination Act 1975. UK did not have any recent case law relating to the provision. Miss Christine LOH said that, as far as she knew, there was a UK 1986 case on sex discrimination relating to acts safeguarding national security. In the absence of example(s) of act(s) safeguarding security of Hong Kong she maintained that the exception should be removed. Representatives of the Administration said that the exception might have to be invoked in an emergency, which by its nature could not be forecast. The exception was also provided for in some other pieces of legislation in Hong Kong. The exception was not provided for in DDO because it was considered that such a provision would unlikely be used in the context of disability discrimination. Since the exception had been enacted, it would be up to those who proposed to delete it to justify the deletion. The onus should not be placed on the Administration to justify the retention of the provision by providing examples of acts safeguarding the security of Hong Kong.

Proposed expiry of exception for sex discrimination in the Small House Policy after a maximum of two years from enactment of the Bill

(Clause 12)

(Paper No. CB(2)1920/96-97 (01) provided by the Administration)

Pre-1972 practices

6. Mr LAU Wong-fat said that before the introduction of the Small House Policy in 1972, people of either sex, irrespective of whether they were indigenous villagers, who owned agricultural land in the New Territories could build houses to improve the low standard of housing in rural areas. These houses, vis-a-vis multi-storey buildings, could cater for the needs of indigenous villagers who had to carry bulky agricultural tools to and from work in their land. The Small House Policy restricted the right to build houses to male indigenous villagers. The Administration responded that the pre-1972 practices were that heads of families were allowed to build for himself and each son upon marriage a house within the village areas, either on their own agricultural land or on village building lots acquired through auctions restricted to villagers of a particular village. Under special circumstances female villagers, e.g. a widow whose husband died without building a house, were allowed to build houses. At the Chairman’s request, the Administration undertook to provide details of the pre-1972 practices, in particular whether non-indigenous villagers were allowed to build village houses.

Admin

(Post-meeting note : The requested information was tabled at the meeting on 28 April 1997 vide Paper No. CB(2)2066/96-97 (01).)

Land supply for building small houses

7. Mr LAU Wong-fat said that since small houses could only be built within the perimeter of 300 feet from the indigenous village concerned under the Small House Policy and indigenous villagers were not eligible to apply for public housing, the Administration should ensure sufficient land supply to meet the demands of small house applicants. As the Policy, which aimed at improving the low standard of housing in rural areas and to preserve the cohesive pattern of indigenous communities in their villages, was not related to sex discrimination, he took the view that the exception for the Policy under SDO should be retained. Representatives of the Administration said that land supply was one of the issues covered by the ongoing review which was conducted by the Planning, Environment and Lands Branch in consultation with concerned departments such as the Home Affairs Department and Lands Department. Under the existing Policy, an applicant normally identified the site for the proposed small house. The Lands Department would post notices of small house applications to see if there were objections. In the event of objections, the Rural Committee or the Village Representative would be asked to help to resolve the dispute. The applicant might try to acquire land in a Village Expansion Area from the Administration for building the small house.

Admin

8. At members’ request, the Administration undertook to revert to the Bills Committee on -

  1. the number of claims pertaining to the Small House Policy;
  2. information on land available for small house development; and
  3. whether indigenous villagers were eligible to apply for public housing.

(Post-meeting note : The requested information was tabled at the meeting on 28 April 1997 vide Paper No. CB(2)2066/96-97 (01).)

Meaning of lawful traditional rights and interests under Article 40 of the Basic Law

9. Members noted that, according to the Administration, whether the removal of the exemption in respect of the Small House Policy would result in a breach of Article 40 of the Basic Law would depend upon the Court’s interpretation of whether the Policy conferred a "lawful traditional right and interest" for the purpose of the Article. Upon request, the Administration undertook to provide more detailed explanation on this issue, in particular the meaning of lawful traditional rights and interests of the indigenous villagers referred to in the Article.

Admin

(Post-meeting note : The requested information was tabled at the meeting on 28 April 1997 vide Paper No. CB(2)2066/96-97 (01).)

Review of the Small House Policy

10. In reply to the Chairman, the Administration pointed out that as a review of the Policy was underway, it was unable to comment on the impact of the proposed expiry of exception in respect of the Small House Policy after a maximum of two years from enactment of the Bill (Clause 12).

11. In reply to a member, the Administration undertook to revert to the Bills Committee on when the review commenced. In view of the complexity of the issues involved in the review and the need for consultation, the Administration was unable to indicate when the review would be completed.

Admin

(Post-meeting note : The requested information was tabled at the meeting on 28 April 1997 vide Paper No. CB(2)2066/96-97 (01).)

Quarters allocation in disciplined services

(Clause 12)

(Paper No. CB(2)1920/96-97 (01) provided by the Administration)

12. Members noted the Attorney General’s Chamber’s advice that section 48 of SDO would not save the Administration’s existing policy of allocating quarters to married disciplined staff only from being declared unlawful under the Ordinance. Miss LOH said that after studying the departmental guidelines on the allocation of quarters for the disciplined services departments which the Administration undertook to provide, she might consider amending clause 12 to the effect that the exception under Schedule 5 part 2 item 3(b)(i) of SDO would be retained.

Miss
Christine
LOH

Admin

(Post-meeting note : The guidelines were circulated to members vide Paper No. CB(2)2033/96-97 (01))

Firearms training

(Clause 12)

(Paper No. CB(2)1896/96-97 (01) provided by the Administration)

13. On the question of sex discrimination in respect of firearms training in the Correctional Services Department and Customs and Excise Department, the Administration responded that the differential treatment between male and female arose from operational requirements. It would provide members with details of the reason(s) for such an exception. The exception provision under Schedule 5 Part 2 item 1(d) was necessary so that such a differential treatment would not be declared unlawful under SDO. A member considered that such an exception should be removed on the ground of equal opportunities for male and female.

(Post-meeting note : The requested information was circulated to members vide Paper No. CB(2)2033/96-97 (02))

Administration’s specific concerns on the Bill

14. In reply to Miss LOH, the Administration pointed out that its other specific concerns on the Bill were set out in its position paper (LegCo Paper No.CB(2)1258/96-97 referred). It would explain these concerns at later meetings when the Bills Committee examined the Bill clause-by-clause.

IV. Way forward

15. In reply to the Chairman, the Administration suggested that its "Family Status Discrimination Bill", which would be introduced into LegCo on 23 April 1997, should be discussed by the Bills Committee together with Mr LAU Chin-shek’s Equal Opportunities (Family Responsibility, Sexuality & Age) Bill. Mr LAU Chin-shek did not object to the suggestion. Regarding the Equal Opportunities (Race) Bill, the Administration hoped that members would await the outcome of its consultation exercise on racial discrimination ending on 30 April 1997 before deciding on the need for legislation. Members agreed that the three Bills, and the Family Status Discrimination Bill (if committed to the Bills Committee) would be studied in the following order -

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

(Post-meeting note : At the House Committee meeting on 25 April 1997, Members decided that the Bills Committee should also study the Family Status Discrimination Bill.)

V. Date of next meeting

16. Members agreed that the next meeting would be held on Monday, 28 April 1997 at 10:30 am in Conference Room B of the Legislative Council Building to examine the Sex and Disability Discrimination (Miscellaneous Provisions) Bill 1996 clause-by-clause.

17. The meeting ended at 12:35 pm.

LegCo Secretariat
16 May 1997

Last Updated on 16 December 1998