LegCo Panel on Information Policy

Clerk in Attendance :

Mrs Anna LO

Chief Assistant Secretary (2) 2

Staff in Attendance :

Mr Stephen LAM

Assistant Legal Adviser 4

Mr Raymond LAM

Senior Assistant Secretary (2) 6

I. Confirmation of minutes of last meeting and matters arising
II. Date of next meeting and items for discussion
III. Personal Data (Privacy) Ordinance (Cap. 486) -

(a) Implementation of the Ordinance
(b) Position on those provisions of the Ordinance which have not yet come into operation
(c) Implication of the proposal of the Preparatory Committee’s Legal Subgroup to repeal Section 3(2) of the Ordinance

• Implementation of the Ordinance
• Position on those provisions of the Ordinance which have not yet come into operation
• Implication of the proposal of the Preparatory Committee’s Legal Subgroup to repeal Section 3(2) of the Ordinance
IV. Any other business

I. Confirmation of minutes of last meeting and matters arising

(LegCo Paper No. CB(2) 1412/96-97)

The minutes of the meeting held on 23 January 1997 were confirmed.

II. Date of next meeting and items for discussion

(Paper No. CB(2) 1404/96-97(01))

2. Members agreed that the next meeting would be held on Friday, 11 April 1997 at 10:30 am to continue discussion on "Development of Information Superhighway".

III. Personal Data (Privacy) Ordinance (Cap. 486) -

(a) Implementation of the Ordinance

(b) Position on those provisions of the Ordinance which have not yet come into operation

(c) Implication of the proposal of the Preparatory Committee’s Legal Subgroup to repeal Section 3(2) of the Ordinance

(Paper No. CB(2) 1404/96-97(02))

Implementation of the Ordinance

3. At the invitation of the Chairman, Privacy Commissioner for Personal Data (Privacy Commissioner) highlighted the salient points of his paper. He stated that the Office of the Privacy Commissioner for Personal Data (PCO) had been reviewing the compatibility of proposed legislation and, as and when relevant issues arose, existing legislation with the Ordinance and taking necessary actions. For example, it had raised with the Transport Department the regulatory requirement for the names and addresses of owners to be painted on the sides of goods vehicles.

Code of practice on the use of personal identifiers

4. A member referred to the issue of personal identifiers and questioned whether it was necessary for the Municipal Councils (MCs) to request people who made bookings for sports facilities to provide copies of their Hong Kong identity cards. Privacy Commissioner responded that PCO was preparing a consultative document and a draft code of practice, which would address, inter alia, the member’s concern, on the use of personal identifiers. These would be issued for public consultation in about two months’ time.

Legal status of codes of practice issued by the Privacy Commissioner

5. On the question of the legal status of the codes of practice issued by PCO, Privacy Commissioner referred to sections 12 and 13 of the Ordinance and pointed out that while the codes were not legally binding, proof of a contravention of a code would be treated by a magistrate, court or the Administrative Appeals Board as proof that the relevant provision of the Ordinance had been contravened unless the party concerned proved that the provision was complied with in some other ways.

Consultancy study for the development of a draft code of practice for the consumer credit reference industry

6. In response to a member, Privacy Commissioner explained that there was a lack of transparency in the transfer, use and processing of personal information in the provision of credit reference services. While the banking industry was preparing a draft code of banking practice with the Hong Kong Monetary Authority, such code would not be applicable to non-bank lending institutions. He intended to address these shortcomings in the draft code of practice for the consumer credit reference industry.

Costs of consultancy studies

8. In response to the Chairman, Privacy Commissioner said that the costs for the consultancy study undertaken by Mr Kevin O’Connor, former Federal Privacy Commissioner of Australia, on consumer credit reference provision was in the region of $200 000, while that for the study on the effect of technological developments on privacy was about $90 000. Such studies could not be conducted in-house, as the current strength of 31 staff in PCO was already over-stretched with heavy workload.

Establishment of the PCO

9. Privacy Commissioner informed members that PCO was faced with unexpectedly high number of enquiries and complaints in the initial period of operation. The existing establishment was being reviewed and request would be made for additional manpower resources, if necessary. In response to the Chairman, he assured that adequate leaflets on privacy of personal data would be printed for the public. The staff of PCO would also attend, as far as possible, seminars organized by other organizations on the same subject.

Position on those provisions of the Ordinance which have not yet come into operation

10. As regards the implementation timetable for sections 30 and 33 of the Ordinance, which provided for specific control of "matching procedures" (the automated matching of personal data of ten or more individuals collected for different purposes with a view to taking adverse action against one or more of them) and the transfer of personal data outside Hong Kong respectively, which had not yet come into operation, Privacy Commissioner stated that both sections were intended for commencement in mid-1997, the latter subject to the progress of contact with relevant bodies of overseas countries. He expected that the first guidance under section 33 would be issued in April 1997.

Implication of the proposal of the Preparatory Committee’s Legal Subgroup to repeal Section 3(2) of the Ordinance

11. Principal Assistant Secretary for Home Affairs (PAS(HA)) stated that the Administration considered that section 3(2) of the Personal Data (Privacy) Ordinance (the Ordinance) should not be repealed. Section 3(2) of the Ordinance stipulated that where the provision of an existing legislation was incompatible with the Ordinance, the latter would prevail. It was to reduce the time-consuming process of examining the compatibility of all existing legislation with the Ordinance. The repeal of section 3(2) would not have any effect on future legislation. The Privacy Commissioner was empowered under section 8(1)(d) to examine any proposed legislation(including subsidiary legislation) that he considered might affect the privacy of individuals in relation to personal data. However, there might be increased challenge on whether the Ordinance should prevail over existing legislation, as there was a common law principle that legislation specific to a certain area prevailed over general legislation on the same area. ALA4 confirmed that while there was a common law principle that legislation specific to a certain area prevailed over general legislation, there was another common law principle that legislation enacted at a later time prevailed over those enacted at an earlier time governing the same area. It was therefore up to the court to decide which principle should apply.

12. Privacy Commissioner commented that the repeal of section 3(2) of the Ordinance should not have any significant effect on the day-to-day work of or the complaint cases under investigation by PCO. Sections 8(1)(a), 8(2) and the six Data Protection Principles in Schedule One to the Ordinance would continue to empower him to discharge his duties fully.

13. Members were generally of the view that section 3(2) of the Ordinance should not be repealed. A member commented that all proposed legislation should be examined to ensure compatibility with the Ordinance and the Bill of Rights Ordinance. He hoped that the Privacy Commissioner would continue to examine existing legislation which were incompatible with the six Data Protection Principles and propose amendments accordingly. Another member requested the Secretary for Home Affairs to convey the public’s concern on the repeal of section 3(2) of the Ordinance to the Chief Executive of the Hong Kong Special Administrative Region.

14. The Chairman suggested that the Panel should discuss the subject again in May 1997.

IV. Any other business

15. Members noted that the House Committee would consider bids for funds for Members’ overseas duty visits in March and October every year. Members agreed that no overseas duty visit would be proposed for the Information Policy Panel for the months of April to June 1997.

16. The meeting ended at 1:10 pm.

LegCo Secretariat
8 April 1997