PLC Paper No. LS 3/97-98

Paper for the House Committee Meeting
of the Provisional Legislative Council
on 18 July 1997

Legal Service Division Report on
Chinese Nationality (Miscellaneous Provisions) Bill

Object of the Bill

To enable applications for Chinese nationality to be processed locally as authorised by the Standing Committee of the National People Congress.

PLC Brief Reference

2. SBCR 2/2071/97(97) issued by the Security Bureau on 8 July 1997.

Date of First Reading

3. 9 July 1997.

Comments

4. In the Explanations of Some Questions by the Standing Committee of the National People Congress Concerning the Implementation of the Nationality Law of the People Republic of China in the Hong Kong Special Administrative Region, the Standing Committee of the National People Congress authorises the Government of the HKSAR to process through the Immigration Department -

1. applications for Chinese nationality under the Nationality Law of the People Republic of China; and
2. declarations of change of nationality made by Chinese citizens in the Hong Kong Special Administrative Region.

5. The purpose of the Bill is to provide the necessary legislative provisions for the performance of these functions by the Government of the HKSAR. Its main provisions cover the following aspects -

1. the requirements to be complied with in making applications or declarations (clause 3);
2. the fees payable for the various applications and the declarations (clause 3(2)(a) and Schedule);
3. creation of an offence of providing false information (clause 4);
4. jurisdiction of the court to entertain proceedings concerning the rights of any person under the Nationality Law (clause 5).
5. delegation of regulation-making power to the Director (clause 6).

6. In setting out the requirements for the 鬭pproval�of nationality application, clause 3(2) provides for only 2 conditions, namely -

1. the payment of the requisite fees;
2. compliance with the requirements to be prescribed by the Director by regulation.

However, since there is no indication that any requirements will be prescribed by the Director to tie in with the commencement of the Bill (which is to take retrospective effect from 1 July 1997 except for its penal provisions), it would appear from clause 3(2) that an applicant only has to pay the requisite fee for his application to be approved.

7. Clarification has therefore been sought from the Administration on the intended effect of clause 3(2). The policy intention is clearly that approval of any nationality declaration has to be subject to the conditions laid down in the Nationality Law (already promulgated for application in the HKSAR) and not merely the essentially procedural requirements intended by clause 3(2). The Administration has noted the problem and has agreed to consider replacing the words 幞o nationality application ............ shall be approved unless ..... �by 幞o nationality application ............ shall be processed unless ..... �so as to avoid any misunderstanding.

8. Clause 5 provides that the decision on a nationality application is not subject to review or appeal in so far that it involves the exercise of discretion but otherwise should be justificiable in court. Members may refer to paragraph 4 of the PLC brief for the Administration views on the clause.

Public Consultation

9. There is no indication that public consultation has been carried out.

Conclusion

10. The Bill is restricted in scope because as its title indicates, it only contains the miscellaneous provisions essential to the processing of nationality application delegated to the HKSAR by the National People Congress. For the more substantive provisions relating to Chinese nationality, reference must of course be made to the Nationality Law.

11. Except for the point mentioned in paragraph 7 above, the Bill is in order. The proposed amendment to clause 3(2) will be followed up as appropriate.

Prepared by

Cheung Ping-Kam, Arthur
Assistant Legal Adviser
Provisional Legislative Council Secretariat
15 July 1997