PLC Paper No. CB(2)238
(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 10th meeting
held on Thursday, 29 May 1997 at 2:30 pm
in the Chamber of the Legislative Council Building

Members Present :

    Dr Hon LEONG Che-hung, OBE, JP (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 LAU Chin-shek
    Hon LEUNG Yiu-chung

Members Absent :

    Dr Hon John TSE Wing-ling (Deputy Chairman)
    Hon LAU Wong-fat, OBE, JP
    Hon CHEUNG Hon-chung
    Hon Albert HO Chun-yan
    Hon Bruce LIU Sing-lee
    Hon NGAN Kam-chuen

Public Officers Attending :

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 Francis CHENG
Assistant Secretary for Education and Manpower
Mr Esmond LEE
Principal Assistant Secretary for Planning, Environment and Lands
Mrs Betty NEOH
Principal Executive Officer, Civil Service Branch
Mr Vincent FUNG
Assistant Secretary for Financial Services
Mr David YIP
Assistant Secretary for Security
Mr Gary YEUNG
Assistant Commissioner (Entertainment),
Television and Entertainment
Licensing Authority
Mr FUNG Ho-tong
Assistant Director (Applications and Home Ownership)
Housing Department
Mr Simon LEE
Assistant Director (Legal Advice)
Housing Department

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

(LegCo Paper Nos. CB(2)2314 and 2457/96-97)

The minutes of meetings held on 17 and 28 April 1997 were confirmed.

II. Matters arising from previous meetings on the Sex and Disability Discrimination (Miscellaneous Provisions) Bill 1996

Quarters allocation in disciplined services

(Clause 12)

The Administration pointed out that according to legal advice, the exception for quarters allocation in disciplined services under the Sex Discrimination Ordinance (SDO) was not inconsistent with the Hong Kong Bill of Rights Ordinance.

Small House Policy

(Clause 12)

Members noted the Administration’s answers (LegCo Paper No. CB(2)2471/96-97) to questions relating to the Small House Policy raised at the last meeting.

Grace period for the insurance industry

Representatives of the Administration said that the retirement schemes industry did not object to the Bill but requested for a grace period of two to six months to adapt to the requirements under the Bill. Miss Christine LOH agreed to consider moving a Committee stage amendment (CSA) to provide the grace period.

Miss LOH

III. Matters arising from the last meeting on the Equal Opportunities (Family Responsibility, Sexuality & Age) Bill

Representations on the age aspects of the Bill

The Chairman drew Members’ and the Administration’s attention to the following legislative timetable on the assumption that the bills were to resume Second Reading debate at the last sitting which was now to commence on 23 June 1997 -

Date of Bills Committee report to House Committee

Deadline for giving notice for resumption of Second Reading

Deadline for CSAs

6 June 1997

6 June 1997

13 June 1997

In view of the tight schedule for the Bill, members agreed that the Bills Committee would not invite representations on the age aspects of the Bill.

Mr LAU Chin-shek’s response to questions relating to his Bill

(Paper No. CB(2)2514/96-97 (02) tabled at the meeting)

Members noted Mr LAU Chin-shek’s response to question relating to his Bill raised at the last meeting.

The Administration’s assessment on the age aspects of the Bill

(Paper No. CB(2)2514/96-97 (01) tabled at the meeting)

Referring to its paper, the Administration stated that its assessment on the age aspects of the Bill clearly indicated that the Bill would have far-reaching implications on the community and would lead to considerable problems in a wide-range of areas. For these reasons, it was undesirable for the Bill to be taken forward. It was important to note that this analysis focused mainly on Government policies and practices. It was likely that other private sector activities would also be adversely affected by the Bill. Mr LAU said that his Bill was substantially based on Ms Anna WU’s Equal Opportunities Bills which were studied in detail by the Bills Committee in the 1994/95 session. The Administration’s concerns should have been forwarded to that and this Bills Committee for consideration much earlier. With regard to the various concerns raised by the Administration in its paper, Mr LAU and some other members pointed out that these were indeed the areas of discrimination on the ground of age that needed to be rectified.

Representatives of the Administration then took members through their concerns listed in its paper. The salient points of discussion on individual clauses were set out in the following paragraphs.

Clause 55 - Discrimination against applicants and employees

The Administration was concerned that from the employers’ point of view, training or promoting employees who would soon leave the company after retirement on account of age would not be an efficient use of training resources and would upset the manpower and succession planning of the company. The Bill should therefore provide exemption for this. Mr LAU shared a member’s view that the problem arose from employees’ retirement which should not be linked to age. Regarding the Administration’s concern that the Bill might outlaw many current civil service practices, Mr LAU responded that the practices should relate to the civil servants’ working experience rather than their age.

Clause 56 - Discrimination against commission agents

The Administration pointed out that the Hong Kong Federation of Insurers had administrative registration requirements for commission agents and brokers basing on inter alia, the "fit and proper" criterion. The minimum age requirements for registration as commission agents and brokers were 18 and 21 years respectively. As the age requirements were not statutory in nature, the Federation was concerned that the grace period for existing statutory provisions in clause 77 was not applicable to these requirements. Mr LAU agreed with a member that maturity, instead of age, of the persons should be one of the registration requirements. Clause 74 provided exemption if the age requirements sought to protect the welfare of minors.

Clause 59 - Professional or trade organisations

The Administration pointed out that, in addition to registered trade unions, professional bodies such as the Hong Kong Society of Accountants imposed statutory age requirements for their student members. For the reasons set out in its paper, the Administration objected to an amendment to the Trade Unions Ordinance (TUO) along the line of clause 59. Referring to Mr LAU’s paper, it doubted whether clauses 74 and 76 provided exemption for the age requirements under section 17 of TUO. Mr LAU shared a member’s view that if the minimum age requirement (16 years) for voting members or executive officers of registered trade unions related to the welfare or legal capacity of minors, clause 76 provided exemption for the requirement. Mr LEE Cheuk-yan’s Trade Unions (Amendment) Bill 1997 sought to, among other things, revise the minimum age requirement for executive officers of registered trade unions from 21 years to 18 years. Moreover, Mr LAU’s Bill provided a grace period of two to four years for existing statutory age requirements. Another member opined that registered trade unions would not object to removal of the age requirements.

Clause 62 - Education

The Administration said that under clause 62, the age limits imposed by certain tertiary institutions on student admission for specific types of courses constituted direct age discrimination. Unlike indirect age discrimination, the only way to save these requirements from being declared unlawful was to provide specific exemptions for them under the Bill. The Administration was therefore concerned that the general exception clauses 72-81 were not adequate to do so. A member opined that maturity and relevant working experience of students rather than their age should be taken into account in considering their applications for admission to the courses.

The Administration doubted whether removal of the age requirements in respect of the Sir Edward Youde Memorial Fellowship for Overseas Studies and the Sir Edward Youde Memorial Scholarship would be inconsistent with the donors’ intent. Mr LAU shared a member’s view that applicants should not be deprived of the award of scholarships due to age discrimination. Hence the age requirement should be removed.

Clause 64 - Goods, services and facilities

The Administration was concerned that, given the vagueness of the term "bona fide benefits" under clause 64(2), the provision of services to children and young people and the elderly might be affected by the Bill. Mr LAU explained the meaning of the term. He added that clause 79(b) provided an exemption for the provision of services in order to meet the special needs of these people.

Clause 65 - Accommodation

The Administration pointed out that clause 65 might affect the continuing operation of a number of Housing Authority policies and practices which involved age restrictions. These age restrictions were set out in the issues of concern under clause 71 in the Administration’s paper.

Clause 66 - Land

The Administration said that clause 66 might outlaw the existing minimum age criterion (18 years) under the Small House Policy. The age criterion was justified on the ground that persons under 18 were likely to be living with their families and did not have separate housing needs. Given that an overall review of the policy was ongoing, it was not appropriate to amend or remove the age criterion at this stage. Mr LAU said that clause 76 provided an exemption for statutory age requirement relating to the legal entitlements of minors. The Administration pointed out that the Policy did not confer legal rights and the age requirement was not statutory. ALA4 advised that whether the eligibility to apply for a small house amounted to a legitimate expectation and hence a legal entitlement was subject to court ruling. Clause 76 provided an exemption for the age requirement if the court affirmed the villagers’ legal entitlement to small houses.

Clause 67 - Clubs

The Administration pointed out that clubs holding a Private Recreational Lease might refuse membership of a person if he or she was too young to be a member of a club without adult supervision. Clause 67 however rendered this unlawful. Mr LAU said that clauses 74 or 76 provided an exemption for the age restriction.

Clause 68 - Discrimination in sport on the ground of age

The Administration pointed out that regulations laid down by international sports governing bodies might prohibit people of above a certain age from officiating as referees or umpires. Clause 68 however made this unlawful and put local sports association in a very difficult position when organizing internationally sanctioned events. Mr LAU opined that clause 72 might provide exemption for the age restriction which was imposed in order to comply with reasonable health and safety considerations.

Clause 69 - Application forms, etc.

The Administration pointed out that applicants for the Civil Aid Services (CAS) and the Auxiliary Medical Services (AMS) were required to provide in the application form information of their parents or guardians (e.g. names, HKID Card No., addresses) if they were under the age of 18. Clause 69 might render this unlawful. Mr LAU said that clauses 74 or 76 provided exemption for this age restriction.

Clause 71 - Discrimination in the administration of laws and government programmes

Regarding legality of the minimum age requirements (18 years) in respect of the application for an Amusement Games Centre licence and recruitment of Panel of Advisers of Film Censorship, a member said that clause 76(a) preserved laws relating to the legal entitlements, obligations or disqualifications of minors. It could therefore provide exemptions for these age requirements. The Administration was concerned whether the age requirements for the retraining courses offered by the Employees Retraining Board were regarded as unlawful under the Bill. The member said that they were permitted under clause 79(b) which exempted measures to meet special needs of persons of a particular age.

A member said that under the Security and Guarding Services Ordinance security personnel at or above the age of 65 were only permitted to work in single domestic buildings. She raised the question of legality of the age restriction under the Bill. ALA4 advised that clause 72 provided an exemption for age discrimination which was justified by health and safety considerations. The member opined that the exemption was not given across the board, but with regard to individual health and safety considerations. Hence the age restriction might not be exempted under the clause. She also raised the question whether the Bill outlawed the cap on age (55 years) in respect of application for a firearms licence. Mr LAU said that the provisions in clauses 77 and 90 applied to this age restriction.

IV. Continued examination of the Equal Opportunities (Family Responsibility, Sexuality and Age) Bill

Equal Opportunities (Family Responsibility, Sexuality and Age) Bill

Clause 72 - Compliance with reasonable health and safety considerations

The Administration pointed out that age restrictions were imposed on certain practices of the Department of Health to meet the special needs of persons of a particular age. Minimum age requirements were also imposed in certain pieces of legislation relating to health. It doubted whether clause 72 or other exemption provisions in the Bill provided exemptions for these age restrictions. ALA4 advised that clauses 74 to 76 provided exemptions for age restrictions with respect to minors.

Clause 74 - Acts done to protect the welfare of minors

The Administration stated that special programmes were administered to suit young offenders or drug abusers. Two examples were the Against Substance Abuse Scheme operated by the Social Welfare Department and the Police Superintendent’s Discretion Scheme. According to the Administration’s legal advice, it was arguable whether these schemes could be exempted under clause 74. The Administration also pointed out that as the existing immigration policies imposed age restrictions on persons seeking to join their family members in Hong Kong as dependants, an exemption on immigration matters should be added to the Bill. Mr LAU agreed to consider the Administration’s concern.

Representatives of the Administration said that the term "welfare" was not well defined in clause 74 and might be subject to interpretation. It was doubtful whether the exemptions under this clause and clause 76 were adequate for enabling the Administration to continue to administer age restrictions in certain necessary areas as those set out in its paper. As suggested by a member, Mr LAU agreed to seek legal advice on whether the scope of the term "welfare" referred to in clauses 74 and 76 was broad enough to address the Administration’s concerns.

Mr. LAU

Clause 76 - Laws relating to the welfare or legal capacity of minors

Members noted the Administration’s concerns relating to clause 76 set out in its paper.

Clause 77 - Laws and acts done under statutory authority

Unless permanently exempted, the Bill rendered discriminatory age requirements unlawful. Clause 77 provided a grace period of two to four years for existing statutory age requirements. The Administration saw no reason why the age restrictions imposed under certain pieces of labour legislation set out in its paper should be removed in two to four years’ time. Permanent exemptions should be provided for these age restrictions. Mr LAU agreed to consider the Administration’s concerns relating to the compensation legislation.

Mr. LAU

Clause 80 - Genuine occupational qualification

The Administration was concerned that, in addition to the three genuine occupational qualifications (GOQs) listed in clause 80 (a) to (c), there might be other GOQs requiring exemptions under the clause. A member opined that there should be no other GOQs requiring exemptions.

Part VI - General exception to the Bill

Clause 84 - Charities

Clause 85 - Voluntary bodies

Clause 86 - Religious bodies

The Administration pointed out that there was a host of private ordinances relating to the work of charitable and voluntary organisations, and religious bodies in Hong Kong which contained certain age-specific provisions. It was questionable whether the protection given to these bodies under clauses 84 to 86 were adequate to cover such provisions. Exemption provisions for charities and voluntary bodies clauses were provided for in the Sex Discrimination Ordinance (SDO). The wording of clauses 84 and 85 should be revised to tie in with that of SDO so that case law on the latter could be relied upon in interpreting the clauses. The Administration also failed to see the reason for exempting religious bodies in respect of age discrimination under clause 86. Mr LAU agreed to address the Administration’s concerns.

Mr LAU

Clause 87 - Educational bodies established for religious purposes

The Administration saw no reason for exempting educational bodies established for religious purposes in respect of age discrimination under clause 87. Mr LAU agreed to address the Administration’s concern.

Mr LAU

Clause 90 - Regulations to provide temporary exceptions

Mr LAU said that clause 90 empowered SHA to provide temporary exceptions to the Bill by way of regulations. The exceptions provided might be of a general or specific nature, and were subject to LegCo approval. Regulations might also provide for any person to apply to SHA for a temporary exception. The Administration asked for the rationale for giving SHA the power to make regulations to provide temporary exemptions under clause 90. Although SHA was empowered to specify expiry date of the regulations, the Bill did not specify whether the validity period of the regulations could be extended. The clause did not specify the factors of consideration in making the regulations. SHA might therefore have extensive power on granting exemptions. In theory, he could exempt discriminatory acts or practices under the Bill for a long period of time.

The Administration also pointed out that it was inappropriate to give temporary exemptions for reasonable age requirements. Specific exemptions provisions should be provided for these age requirements so that they could be permenantly exempted. As clause 77 only provided exemptions for existing statutory age requirements but not for non-statutory ones, the commencement date of clause 90 should be ahead of other clauses to give effect to the temporary exemptions for non-statutory age requirements.

Mr LAU reiterated that under clause 90(3) the regulations were subject to LegCo approval. The spirit of clause 90 was to empower SHA to provide temporary exceptions to the Bill by way of regulations. Permanent exceptions should be provided for in the Bill. Mr LAU agreed to address the Administration’s concern.

Mr LAU

Clause 92 - Jurisdiction of District Court

Members noted that discriminatory acts or practices made unlawful by the Bill were triable in the District Court under clause 92. In the absence of a conciliation mechanism, the Administration was concerned about the effect of the clause. On the one hand, as people were unfamiliar with the provisions of the Bill, they might incline to institute unnecessary legal proceedings against others in respect of alleged discrimination under the Bill. On the other hand, the high costs and lengthy procedure of litigation might preclude genuinely aggrieved persons from litigation to redress wrongs done to them. Mr LAU pointed out that the absence of a conciliation mechanism arose from the Administration’s objection to his proposal to empower the Equal Opportunities Commission (EOC) to implement and enforce the provisions of his Bill.

Clause 94 - Remedies

Members noted that clause 94 empowered the court to make an order to provide remedies for aggrieved persons. The Administration pointed out that the court order included a reinstatement or re-engagement order which would be made without prior consent of the employer and employee involved. For the reasons explained to members when the Bills Committee studied a similar proposal in the Sex and Disability Discrimination (Miscellaneous Provisions) Bill 1996, the Administration objected to the clause.

Clause 100 - Vicarious liability

The Administration pointed out that, unlike similar provisions in SDO and the Disability Discrimination Ordinance (DDO), clause 100 did not provide an exemption for employers and principals in respect of crimes committed by their employees or agents. The clause therefore imposed unreasonable vacarious liability. Mr LAU agreed to consider providing the exemption.

Mr LAU

Clause 103 - Effect on pre-existing legislation

Members noted the ruling of the President of LegCo that the Bill offended clause XXV(3) of the Royal Instructions through the inclusion of clause 103. In order to comply with the Royal Instructions, the President had directed the Clerk to LegCo to make the necessary procedural arrangement to ensure that clause 103 would not stand part of the Bill. Mr LAU said that he had proposed another Member’s Bill to give effect to the consequential amendment.

Mr LAU informed the meeting that he was still awaiting the President’s ruling on his CSA to the definition of "family status" in the Family Status Discrimination Bill. Pending the ruling, he proposed to study Part III of his Bill on sexuality discrimination. The Administration said that it would like to enact the Family Status Discrimination Bill in this legislative session. Members agreed to proceed with the examination of Family Status Discrimination Bill in parallel with Part II of Mr LAU’s Bill on family status discrimination as originally scheduled. To facilitate scrutiny of the Administration’s Bill, members were requested to forward their questions and views on the Bill to the Administration before the next Bills Committee meeting.

V. Date of subsequent meetings

Members agreed to the following schedule of meetings -

Date and Time

Venue

Purpose

Tuesday, 3 June 1997

(12:30 pm)

Chamber

Examination of the Equal Opportunities (Family Responsibility, Sexuality & Age) Bill and Family Status Discrimination Bill

Thursday, 5 June 1997

(12:30 pm)

Chamber

Examination of the Equal Opportunities (Family Responsibility, Sexuality & Age) Bill, Family Status Discrimination Bill and Equal Opportunities (Race) Bill

The meeting ended at 4:38 pm.

Provisional Legislative Council Secretariat
2 September 1997

Last Updated on 16 December 1998