PLC Paper No. CB(2)237
(These minutes have been seen
by the Administration and
cleared with the Chairman)
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 9th meeting
held on Monday, 19 May 1997 at 8:30 am
in the Chamber of the Legislative Council Building

Members Present :
    Dr Hon LEONG Che-hung, OBE, JP (Chairman)
    Dr Hon John TSE Wing-ling (Deputy Chairman)
    Hon Mrs Miriam LAU Kin-yee, OBE, JP
    Hon Emily LAU Wai-hing
    Hon Zachary WONG Wai-yin
    Hon Christine LOH Kung-wai
    Hon LEE Cheuk-yan
    Hon CHAN Yuen-han
    Hon Albert HO Chun-yan
    Hon LAU Chin-shek
    Hon LEUNG Yiu-chung
    Hon Bruce LIU Sing-lee
Members Absent :
    Hon LAU Wong-fat, OBE, JP
    Hon CHEUNG Hon-chung
    Hon NGAN Kam-chuen
Public Officers Attending :
Item II
Mr NG Hon-wah
Deputy Secretary for Home Affairs (Acting)
Miss Helen TANG
Principal Assistant Secretary for Home Affairs
Ms Cora HO
Assistant Secretary for Home Affairs
Ms Esther LEUNG
Principal Assistant Secretary for Education and Manpower
Mr CHOI Chi-wa
Commissioner for Rehabilitation
Miss Priscilla TO
Assistant Secretary for Health and Welfare

Item III
Mr NG Hon-wah
Deputy Secretary for Home Affairs (Acting)
Miss Helen TANG
Principal Assistant Secretary for Home Affairs
Ms Cora HO
Assistant Secretary for Home Affairs
Ms Esther LEUNG
Principal Assistant Secretary for Education and Manpower
Mrs N DISSANYAKE
Senior Assistant Law Draftsman
Mr Vincent FUNG
Assistant Secretary for Financial Services
Mr Francis CHENG
Assistant Secretary for Education and Manpower
Mr David YIP
Assistant Secretary for Security

Attendance by Invitation :
Mr Adam MAYES
Personal Assistant to Hon Christine LOH
Ms 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 Adviser 4
Mr Colin CHUI
Senior Assistant Secretary (2) 2




I. Outstanding points on the Sex and Disability Discrimination (Miscellaneous Provisions) Bill 1996

(Paper No. CB(2)2392/96-97 (01) - seventh draft of Miss Christine LOH's Committee stage amendments (CSAs) tabled at the meeting)

Clause 12 - Small House Policy

(Paper No. CB(2)2335/96-97 (01) - paper provided by the Administration)

At a member's request, the Administration undertook to revert to the Bills Committee on -
  1. the relationship between tso or tong and the Small House Policy; and
  2. whether male indigenous villagers could apply for public housing.
Admin

(Post-meeting note : The Administration's response was circulated to members vide LegCo Paper No. CB(2)2471/96-97.)

Clause 16 - Damages for unintentional sex discrimination

Representatives of the Administration said that the United Kingdom (UK) Government had advised that the UK Sex Discrimination and Equal Pay (Miscellaneous Amendments) Regulations 1996 provided, amongst other things, for industrial tribunals to award compensation to a person who had suffered indirect discrimination under Part II of the UK Sex Discrimination Act. The Regulations also allowed damages for indirect sex or marital status discrimination on where it would not be just and equitable to grant other remedies alone. The Administration pointed out that clause 16 did not stipulate such a condition in respect of damages for unintentional sex discrimination. As the UK sex discrimination legislation was amended to provide for the damages after 21 years of operational experience, a member doubted the appropriateness of introducing similar amendment to SDO which had only been fully implemented for a few months. Miss LOH responded that Hong Kong should learn from the UK experience and offer better protection against discrimination without further delay.

(Post-meeting note : The letter from the UK Government was circulated to members vide Paper No. CB(2)2387/96-97(01).)

Clauses 17 and 34 - binding undertakings

The Administration reported that, in response to the Administration's request, the UK's Department for Education and Employment had explained in writing its position in respect of binding undertakings. Binding undertakings were recommended by both the UK EOC and UK Commission for Racial Equality. The former body was responsible for implementing the UK Sex Discrimination Act while the latter was tasked with the enforcement of the Race Relations Act. The UK Home Office, which was the house-keeping department of the latter body, agreed to incorporate binding undertakings in the UK Race Relations Act. The Department for Education and Employment, which was the house-keeping department of UK EOC, decided not to proceed with the UK EOC proposal in parallel with the Home Office, but to wait and see whether the change was a success in the field of race relations. The decision whether to go ahead could then be taken in the light of the Home office's experience. However, owing to lack of legislative time it had not yet been possible for the Home Office to proceed and therefore the matter was currently on hold. Upon request, the Administration undertook to provide members with the UK Government's written explanation. Admin

(Post-meeting note : The letter from the UK Department for Education and Employment was circulated to members vide Paper No. CB(2)2387/96-97 (02).)

Clause 21 - Regulations to empower Commission to bring certain proceedings

Miss Christine LOH said that the updated (seventh draft) CSA to clause 21 was proposed to address ALA4's concerns.

Clause 24 - Further exceptions to this Ordinance

Referring to the updated CSA to clause 24, Miss LOH said that she proposed to amend the clause to delete the exception under Schedule 5 Part 2 item 6. The exception was in respect of marital status discrimination arising from HOS/PSPS. The exception was no longer necessary as the existing housing policy did not discriminate single parent families.

Miss LOH said that she would prepare a paper setting out the relevant provisions of the Sex Discrimination Ordinance (SDO) and Disability Discrimination Ordinance (DDO) and her proposed amendments. Miss LOH


The Administration reiterated that it did not support the Bill. As the Sex Discrimination Ordinance (SDO) and Disability Discrimination Ordinance (DDO) were only fully operational in December 1996, amendments to the two Ordinances should only be considered after development of local operational experience and the comprehensive review of the two Ordinances by the Equal Opportunities Commission (EOC) in December 1997. Besides, the general public was not yet fully familiar with all the provisions of the two Ordinances. It would certainly cause confusion to the public if the Ordinances were amended at this stage, bearing in mind that they might be further amended after the EOC's review. Frequent amendments to the two Ordinances would also cause difficulties to the EOC's work in promoting the legislation.

Members noted that scrutiny of the Bill had been completed and Miss LOH intended to resume Second Reading debate of the Bill on 11 June 1997. A written report on the Bill would be submitted to the House Committee on 30 May 1997. The Chairman reminded Members that the deadline for giving notice of CSAs was 31 May 1997 because 9 June 1997 was a public holiday.

II. Clause-by-clause examination of the Equal Opportunities (Family Responsibility, Sexuality, and Age) Bill

(Paper No. CB(2)2327/96-97 (01) - draft CSAs provided by Mr LAU Chin-shek)

The Chairman recapitulated that the Bills Committee last discussed this Bill on 17 March 1997. Having gone through the policy issues, the Bills Committee had commenced the clause-by-clause examination up to clause 3. There were some points which Mr LAU Chin-shek had agreed to consider. In this connection, the proposed amendments by him had been circulated to members vide LegCo Paper No. CB(2) 2327/96-97. Mr LAU Chin-shek proposed and members agreed to examine his Bill in the order of discrimination on the ground of age (Part IV), family status (Part II) and sexuality (Part III). The Bill would therefore be studied in the following order - Part I, Part IV, Part II together with the Family Status Discrimination Bill, and Part III.

Part I - Preliminary

Clause 2 - Objects

Representatives of the Administration said that they would discuss with the Attorney General's Chambers on Mr LAU Chin-shek's draft CSA to clause 2 and comment on it at later meetings of the Bills Committee. Admin

Clauses 3 - Interpretation

The Administration commented that the definition of "educational establishment" in SDO was more detailed and precise than those of "educational authority" and "educational institution" in clause 3. The two definitions in the clause should be revised for consistency with SDO. "Work under a contract for services" in the definition of employment under clause 3 might include services provided by an independent contractor. Scope of the definition would therefore extend beyond that in the relevant employment legislation. Mr LAU undertook to consider amending the definitions. Mr LAU

Clause 4 - Act done for 2 or more reasons

In reply to the Administration, Mr LAU agreed to consider amending the wording of clause 4 to tie in with similar provisions in SDO and DDO. Mr LAU

Clause 5 - Ordinance binds the Crown

The Administration pointed out that the word "Crown" in clause 5 should be replaced by "Government". Similar changes had been made to the laws of Hong Kong. Mr LAU agreed to do so. Mr LAU

Clause 6 - Discrimination on the basis of the characteristics of an associate or relative of a person

Members noted that clause 4 provided that a person (the discriminator) would be taken to discriminate the aggrieved person on the grounds of family responsibility, sexuality or age if the aggrieved person's associate or relative was discriminated by the discriminator on one of these grounds. The Administration pointed out that with the broad scope of the word "associate", clause 6 might be subject to abuse. In reply to Mr LAU, representatives of the Administration said that similar provision was provided for in DDO but not in SDO. The provision in DDO would less likely be subject to abuse as the characteristics of people with a disability were more apparent than those of people subjecting to discrimination on the grounds of sex, family responsibility, age or sexuality. They supplemented that in fact Ms Anna WU intended to remove similar clauses from her Equal Opportunities Bills. Mr LAU agreed to consider amending the clause. Mr LAU

Clause 7 - Relevance of international instruments

Representatives of the Administration said that the Administration would seek legal advice on whether clause 7(2) was consistent with the common law principle on interpretation of legislation. Mr LAU said that he had proposed a draft CSA to delete clause 7(3). Admin

Part IV Discrimination on the ground of age

Administration's position on age discrimination legislation

The Administration stated that it did not support age discrimination legislation. 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. These activities 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 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. The Administration 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.

Clause 54 - Discrimination on the ground of age

The Administration pointed out that the indirect discrimination provision under clause 54 was a parallel provision to clause 4 of the Sex and Disability Discrimination (Miscellaneous Provisions) Bill 1996. The problems of the latter clause had been pointed out when it was examined. The indirect discrimination provisions in SDO and DDO should therefore be retained. Miss LOH reiterated that she did not find any problems in the updated clause 4 of her Bill. She would provide members with a paper setting out justifications for the clause and her response to the Administration's comments. Mr LAU undertook to take account of the updated clause 4 of Miss LOH's Bill and the Administration's comments in considering amendments to clause 54 of his Bill. Miss LOH

Clause 55 - Discrimination against applicants and employees

The Administration was concerned whether under clause 55(1)(c), 'the terms or conditions of employment' should be better than the minimum requirements stipulated in the Employment Ordinance. It also wondered whether the subclause would affect the calculation of employees' compensations (e.g. the Long Service Payment) under the Ordinance which were linked to the age of the employees. A member opined that employees' compensations fell outside the scope of the subclause. Mr LAU said that clause 77 provided a grace period in respect of the existing statutory provisions. Nevertheless, he would address the Administration's concerns. Mr LAU

In reply to a member, Mr LAU said that "any other benefits" in clause 55(2)(b) referred to fringe benefits associated with employment. A member opined that the benefits might include, for example, employees' eligibility to use their employers' holiday accommodation, etc. Mr LAU

On the question of the meaning and examples of "any other detriment" referred to in clause 55(2)(d), ALA4 advised that similar wording was used in SDO. Mr Adam MAYES said that the wording was also used in anti-discrimination legislation in UK. He would check how the wording had been interpreted there. A member requested the Administration to seek information from the UK Government regarding the case law on the wording. Mr MAYES
Admin

Clause 59 - Professional or trade organizations

The Administration pointed out that the Trade Unions Ordinance prohibited -
  1. persons under the age of 16 to be voting members of registered trade unions; and
  2. persons under the age of 21 to be members of the executives of these trade unions.
Non-compliance with these age requirements was a criminal offence. These age requirements were imposed because of the need to have mature people to exercise the voting rights and discharge the duties of the executives of trade unions. If clause 59 applied to registered trade unions, it would be inconsistent with these statutory age requirements.

Mr LAU confirmed that the clause applied to registered trade unions. The Bill, however, provided a grace period of two to four years for existing statutory provisions. A member said that views of trade unions on the removal of these age requirements should be invited. Some other members opined that in line with the principle of elimination of age discrimination, the Bill should remove these age requirements now in the form of a consequential amendment to the Trade Unions Ordinance. Mr LAU would consider views expressed on this issue. Mr LAU

Clause 61 - Employment agencies

Given that any contracts with minors were unenforceable at common law, a member asked whether under clause 61, it was unlawful for employment agencies not to provide services to minors. Mr LAU responded that according to clause 75, it was not unlawful if employment agencies refused to enter into contracts with minors for providing employment services. Hence employment agencies would not violate the provisions of his Bill for not providing employment services to minors .

Clause 62 - Education

Mr LAU said that clause 62 sought to outlaw age discrimination in the area of education. Nevertheless, clauses 62(4) and 88 did not outlaw mature age admission schemes, the minimum age requirements for admission to primary and secondary schools or any admission scheme imposed by law. In view of these exemptions and the grace period for existing statutory provisions, some members raised the question of the immediate effect of the age discrimination clauses in the area of education. A member remarked that clause 62 might outlaw the existing cap on age in respect of compulsory school education.

Clause 63 - Access to places and vehicles

Clause 64 - Goods, services and facilities

Members noted that under clause 63(2), it would not be unlawful for the provision of bona fide benefits to persons of a particular age in respect of access to places and vehicles. Clause 64(2) provided similar exemption in the area of provision of goods, services and facilities. "Bona fide benefits" were, however, not defined in the Bill. A member was concerned that providers of benefits might refrain from doing so as they were unsure whether these benefits were "bona fide". She therefore enquired as to the meaning of the wording. ALA4 undertook to check whether the wording was used and, if so, its meaning in local and/or overseas legislation. Mr LAU would revert to the Bills Committee on the rationale for using the wording. ALA4
Mr LAU

Mr LAU said that clause 64(1) prohibited age discrimination in the area of provision of goods, services and facilities. Some members were concerned that the subclause might outlaw the statutory age requirements imposed in respect of film classification, the sale of cigarettes and indecent and obscene articles, access to video game centres and amusement facilities. Mr LAU would check whether clauses 74 and 79 could provide exemptions for these age requirements.

Clause 65

In reply to the Administration, Mr LAU undertook to revise "3" referred to in clause 65(3)(a)(ii) to "6". With the revision, the definition of small dwelling in the subclause would tie in with that in SDO. Mr LAU

Clause 70

The Administration raised whether clause 70 was consistent with the Long Service Payment (LSP) provisions in the Employment Ordinance. Mr LAU responded that like other existing statutory provisions, the LSP provisions were exempted from the Bill under clause 77. The clause also provided that the exemption would expire in two to four years. In reply to a member, ALA4 advised that, as a matter of principle, subsidiary legislation should be consistent with their principal Ordinances. In view of this principle and the need to cater for subsidiary legislation made on or after the Bill was enacted, clause 77(3)(b)(ii) sought to treat provisions of the subsidiary legislation as existing statutory provisions. The Chairman said that clause 77 would be examined in detail at later meetings.

Implications of age discrimination clauses in areas other than employment

A member expressed concern about the far-reaching implications on the community of the clauses relating to age discrimination in the areas other than employment. These areas included -
  1. education;
  2. access to places and vehicles;
  3. goods, services and facilities;
  4. accommodation;
  5. land;
  6. clubs;
  7. sports;
  8. application forms;
  9. superannuation schemes and provident funds; and
  10. administration of laws and government programmes.
Upon request, the Administration undertook to revert to the Bills Committee on the effect of the age discrimination clauses of the Bill on these areas. The member suggested that the Bills Committee should consider inviting representations on these provisions in the Bill from interested parties to ensure that all its aspects were given a full and proper airing. The Chairman said that the Bills Committee would consider the member's proposal at later meetings. Admin

III. Date of next meeting

Members agreed that the next meeting would be held on 29 May 1997 at 2:30 pm in the Chamber of the Legislative Council Building to continue clause-by-clause examination of Part IV of Mr LAU's Bill, followed by Part II in parallel with the Family Status Discrimination Bill.

The meeting ended at 10:30 am.

Provisional Legislative Council Secretariat
2 September 1997

Last Updated on 16 December 1998