LegCo Paper No. CB(2)2457/96-97
(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 7th meeting
held on Monday, 28 April 1997 at 10:30 am
in Conference Room B 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 Christine LOH Kung-wai
    Hon LEE Cheuk-yan
    Hon CHAN Yuen-han
    Hon LAU Chin-shek
    Hon LEUNG Yiu-chung
    Hon Bruce LIU Sing-lee
    Hon NGAN Kam-chuen

Members Absent :

    Hon LAU Wong-fat, OBE, JP
    Hon Emily LAU Wai-hing
    Hon Zachary WONG Wai-yin
    Hon CHEUNG Hon-chung
    Hon Albert HO Chun-yan

Public Officers Attending :

Mr NG Hon-wah
Deputy Secretary for Home Affairs (Acting)
Miss Helen TANG
Principal Assistant Secretary for Home Affairs
Ms Esther LEUNG
Principal Assistant Secretary for Education and Manpower
Mr CHOI Chi-wa
Commisssioner for Rehabilitation
Mr Esmond LEE
Principal Assistant Secretary for Planning, Environment and Lands
Mr Howard CHAN
Principal Assistant Secretary for Security (Acting)
Miss Agnes TSE
Assistant Secretary for Security
Miss Priscilla TO
Assistant Secretary for Health and Welfare

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. Confirmation of minutes of meeting held on 17 March 1997

(LegCo Paper No.CB(2)1957/96-97)

The minutes held on 17 March 1997 were confirmed.

II. Matters arising from the meeting held on 17 April 1997

(a) Small House Policy

(Clause 12 of the Sex and Disability Discrimination (Miscellaneous Provisions) Bill 1996)

(Paper No. CB(2)2066/96-97 (02) tabled by the Administration)

Indigenous villagers’ eligibility for public housing

In reply to a member, the Administration pointed out that indigenous villagers could apply for public housing, provided that they satisfied the Housing Authority’s requirements. Like other residential property owners, indigenous villagers who owned small houses under the Small House Policy were not eligible for flats in public housing estates or under the Home Ownership Scheme. At another member’s request, the Administration undertook to check whether members of tso or tong could apply for public housing.

Admin

Pre-1972 practice

In reply to the Chairman, the Administration stated that there was no clear documentation on whether female indigenous villagers could apply for small houses before the introduction of the Small House Policy in 1972. However, it was quite likely that heads of families allowed to build houses within the village areas before 1972 were male indigenous villagers.

Review of Small House Policy

A member asked when the review of the Small House Policy, which started in August 1995, would be completed. The Administration pointed out that in view of the complexity of the issues involved and the need for consultation, it was unable to advise when the review would be completed.

Another member opined that a cut-off date should be imposed on the Policy. Nevertheless, existing indigenous villagers who were entitled to small houses should not be affected. Land utilisation (e.g. the plot ratio for small houses) should also be taken into account in the review.

In reply to Miss Christine LOH, representatives of the Administration said that land supply, adequacy of existing arrangements and options on the way forward were the key issues covered by the ongoing review. The Heung Yee Kuk would be consulted. 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. Miss LOH pointed out that clause 12 of her Bill provided a one to two year transitional period, and urged members to support the deletion of the exemption for the Small House Policy in SDO at the end of that period. The Administration would then consider the way forward for the Policy.

Outstanding small house applications

Members were concerned about the sufficiency of land for the approximately 13,300 outstanding small house applications. The Administration pointed out that these applications might include those which did not meet the eligibility criteria as well as those which might seek to build small houses on the same piece of Government land. The number of approved applications would therefore probably be smaller than the number of applications. The Administration then explained the application procedures for building small houses. While indigenous villagers could build small houses on their own land or Government land, most houses were built on the former. 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. Indigenous villagers might try to acquire land in a Village Expansion Area provided by the Administration for building a small house. Upon request, the Administration undertook to advise the proportion of private and Government land covered in the 13,300 outstanding applications for building small houses.

Admin

(b) Quarters allocation in disciplined services (Clause 12)

(Paper No. CB(2)2033/96-97 (01) - departmental guidelines on the allocation of quarters for the disciplined services departments)

(Paper No. CB(2)2066/96-97 (02) - paper provided by Hon Christine LOH)

Referring to her paper, Miss Christine LOH said that, after consideration of the departmental guidelines on the allocation of quarters for the disciplined services departments, she saw no justification for retaining an exception in the Sex Discrimination Ordinance (SDO) to authorise discrimination against single officers under the guidelines. There was no apparent reason why a single officer with a child, or with a dependent parent, should be treated less favourably than a divorced or widowed officer with the same salary, service and number and type of dependents. The exception referred to in Schedule 5 Part 2 item 3(b)(i) should therefore be removed as proposed in clause 12. The departmental guidelines showed that most departments already used a points system to allocate quarters based on salary, years of service and number of dependants. Single officers should be allowed to compete for quarters under the points system, which would eliminate unfair treatment in the allocation of quarters without having any resource implications. The Administration responded that removal of the exception would mean single officers were also eligible for disciplined services quarters. This would result in significant increase in the demand for quarters which would aggravate the current shortage. Due to limitation of resources, departments still need to prioritise the allocation of quarters to married officers. 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 pointed out that widowed or divorced officers with dependant children residing with them were also eligible to apply for quarters.

In reply to Miss Christine LOH, the Administration undertook to confirm with the Attorney General’s Chambers that the exception was not inconsistent with the Hong Kong Bill of Rights Ordinance.

Admin

(c) Exceptions in Schedule 5 Part 2 item 1 of SDO (Clause 12)

Members noted the Administration’s paper (Paper No. CB(2)2033/96-97 (02)) giving further information on firearms training in the Correctional Services Department and Customs and Excise Department.

The Administration pointed out that although the exception in respect of Police Tactical Unit referred to in Schedule 5 Part 2 item 1(c) of SDO was no longer necessary, the Administration failed to see any urgent need for removing the exception. It was reviewing other exceptions referred to in item 1 and would forward its views to EOC for its consideration in the comprehensive review of SDO and Discrimination Disability Ordinance (DDO) in December 1997.

Miss Christine LOH considered that the provisions on indirect discrimination under SDO would be sufficient to avoid rendering the differential treatments referred to in the item unlawful. It was therefore unnecessary to retain the exceptions. The Administration responded that if the exception was removed, the legality of these differential treatments might be open to question. If these treatments were considered reasonable, the exceptions should not be removed pending the result of EOC’s review.

III. Clause-by-clause examination of the Sex and Disability Discrimination (Miscellaneous Provisions) Bill 1996

(Paper No. CB(2)1369/96-97 (01) - LegCo Brief on the Bill provided by Miss Christine LOH)

(Paper No. CB(2)1687/96-97 (01) - Miss LOH’s paper entitled "Amendment to update the Bill")

(Paper No. CB(2)1902/96-97 (01) - Paper on Committee stage amendments (CSAs) proposed by Miss LOH)

(Paper No. CB(2)2066/96-97 (03) - Miss LOH’s paper entitled "Amendments made by the Sex and Disability Discrimination (Miscellaneous Provisions) Bill 1996")

Clause 2 - Commencement dates

As SDO and DDO had come into force, Miss LOH proposed a CSA to delete clause 2 which was now obsolete.

Clause 3 - Interpretation

Miss LOH said that clause 3 sought to give EOC an optional function of promoting standards set by binding and non-binding international instruments which were relevant to its work. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) was listed as a non-binding instrument under the Bill. Since CEDAW was extended to Hong Kong in October 1996, an amendment to the clause was proposed to effect it as a binding international instrument. The Administration pointed out that the proposed optional function related to the functions and powers of EOC which was the subject matter of clause 13. It would therefore comment on the proposed function when clause 13 was examined. Referring to para 4 of its position paper in LegCo Paper No. CB(2)1258/96-97, the Administration said that on studying clause 3 further, it appeared that a comment in the paper was incorrect and the clause neither aimed at nor had the effect of linking the interpretation of SDO and DDO to international instruments.

Clause 4

Addition of the elements of "practice" and "policy" in the test of indirect discrimination

Miss LOH said that clause 4 (together with clauses 5 and 6) sought to amend the existing test to identify indirect discrimination. The existing test provided that indirect discrimination might arise if a "requirement or condition", although applied equally, had a disproportionate impact on one sex (or on persons with a particular disability). It was copied from UK law but the UK EOC had proposed to change the test for the reasons set out in para 6-7 of her paper (Paper No. CB(2)1369/96-97 (01)). Indirect discrimination as amended by her Bill might include-

  1. in addition to conditions and requirements that were indirectly discriminatory, practices and policies of that type as well; and
  2. any practice, policy, condition or requirement that disadvantaged a person because of sex, marital status and pregnancy, regardless of whether the person could comply with it.

Representatives of the Administration said that the UK Government did not encounter any problem in implementing the relevant provision and therefore had not accepted the UK EOC’s proposal. According to an authoritative publication on Australian and New Zealand equal opportunities laws, "requirement or condition" might take infinite variety of forms and generally included policies, practices, rules or stipulations which on their face might appear neutral but had a discriminatory effect in practice. As such there was no need to add the words "policies and practices". Miss Christine LOH said that the wording of the clause was copied from a simplified test used in the recent Australian legislation (in particular, in the federal Sex Discrimination Amendment Act 1995). The Administration undertook to check the updated position of the Australian law in this area.

Admin

Clause 4(a) - Addition of the word "imposes"

The Administration enquired the reason for the addition of "imposes" which was used in parallel with "applies" in the clause. Miss Christine LOH said that the wording of the clause was substantially copied from the Australian law which, vis-à-vis UK law, offered better protection against discrimination. In reply to the Administration, ALA4 advised that there was no difference in the meaning between "applies" and "imposes" referred to in the clause. The Administration considered that if so, the same word, instead of two different words, should be used.

Clause 4(a) - Addition of the words "proposes to impose" and "proposes to apply"

The Administration was concerned that addition of the words "proposes to impose" and "proposes to apply" would widen the scope of indirect discrimination. Miss Christine LOH undertook to provide members with background to the provision of the Australian law on which the clause was based.

Miss LOH

Clause 4(b) - factors to consider in respect of indirect discrimination

Representatives of the Administration said that as there was UK case law for the court’s interpretation of the meaning of indirect discrimination, the factors to consider in respect of indirect discrimination set out in clause 4(b) (proposed section 5(4)) were unnecessary. Under section 76(5) no award of damages would be made if an alleged discriminator proved that the requirement or condition concerned was not applied with the intention of treating the aggrieved person unfavourably on the ground of her/his sex, marital status or pregnancy, as the case might be. The proposed deletion of section 76(5) under clause 16 would remove such a defence. Clause 4(b) required an alleged discriminator to prove that the condition, requirement, practice or policy concerned was reasonable. In the absence of case law on the meaning of "reasonable" referred to in the clause, clause 4(b) might cause uncertainty in interpreting the meaning and bring about an increase in litigation cases. Upon request, the Administration undertook to provide members with the following UK Court judgements on indirect discrimination mentioned at the meeting -

  1. Hillington London Borough Council v Commission for Racial Equality [1982] AC 779 - 794;
  2. Commission for Racial Equality v Prestige Group PLC [1984] 1 W.L.R. 335 - 348; and
  3. Bilka-kaufhaus GmbH v Weber von Hartz [1986] IRLR 317.

(Post-meeting note : The judgements were circulated to members vide LegCo Paper No. CB(2)2228/96-97.)

A member shared the Administration’s view that the existing wording of the provision on indirect discrimination should be retained unless there were problems in implementing the provision. Since SDO and DDO were only in force for a short period of time and there was no case law on the new definition of indirect discrimination referred to in clause 4, adopting the new definition might cause confusion and difficulties in compliance.

To facilitate clause-by-clause examination of the Bill, the Bills Committee agreed to Miss Christine LOH’s proposal to discuss with the Administration on the specific concerns set out in its position paper before the next meeting.

Miss LOH
Admin

IV. Date of next meeting

Members agreed that the coming meetings of the Bills Committee would be held as follows -

Date and Time

Venue

Purpose

Thursday, 15 May 1997

(8:30 am)

Chamber

Continued examination of the Sex and Disability Discrimination (Miscellaneous Provisions) Bill 1996

Monday, 19 May 1997

(8:30 am)

Chamber

Continued examination of the Sex and Disability Discrimination (Miscellaneous Provisions) Bill 1996

The meeting ended at 12:45 pm.

LegCo Secretariat
27 May 1997

Last Updated on 16 December 1998