PLC Paper No. LS 52

Paper for the House Committee Meeting of the Provisional Legislative Council on 28 November 1997

Legal Service Division Report on Resolution under section 86 of the Disability Discrimination Ordinance (Cap. 487)

The Secretary for Health and Welfare has given notice to move the above resolution on 10 December 1997 to seek the Provisional Legislative Council approval of the Disability Discrimination (Proceedings by Equal Opportunities Commission) Regulation (懀he Regulation� made by the Secretary for Health and Welfare.

2. Under section 86 of the Disability Discrimination Ordinance (Cap. 487) (懀he Ordinance�, the Secretary for Health and Welfare is empowered to make regulations specifying, inter alia -

1. the circumstances in which the Equal Opportunities Commission (懀he EOC� may bring proceedings if a person who is entitled to bring proceedings under section 72 of the Ordinance (claims under Part III or IV) does not do so; and
2. the remedies which the EOC may seek to obtain in such proceedings.

3. Under the Regulation, the circumstances in which the EOC may bring proceedings under section 72 of the Ordinance are where -

1. the EOC has reason to believe that a person has committed an act of discrimination, harassment, vilification or which is otherwise unlawful under the Ordinance;

2. the case raises a question of principle and the EOC considers that it is in the interests of justice to bring the proceedings;

3. the EOC has offered assistance to the aggrieved person by way of conciliation under section 80 of the Ordinance but failed to effect a settlement;

4. the EOC has given notice in writing to the aggrieved person of its intention to bring proceedings and requesting him to inform the EOC in writing whether or not he intends to bring proceedings in his own name before bringing proceedings; and

5. the EOC has established that the aggrieved person does not wish to bring proceedings in his own name. The aggrieved person shall be deemed to have indicated that he does not wish to bring proceedings in his own name if he does not inform the EOC in writing that he intends to bring proceedings.

4. The Regulation also provides that in any proceedings brought by the EOC under section 72 of the Ordinance, the EOC may apply for any remedies which a claimant can obtain in the Court of First Instance of the High Court, including a declaration or an injunction or an order declaring void in whole or in part either ab initio or from such date as may be specified in the order, any contract or agreement made in contravention of the Ordinance.

5. For background information, Members may refer to an information paper on the Regulation issued by the Health and Welfare Bureau in November 1997. The said paper has been circulated to members of the Panel on Welfare Services. A copy of the paper is at Annex A.

6. Members may wish to note that this Regulation differs from similar regulations made under the Sex Discrimination Ordinance (Cap. 480) (懀he SDO� and the Family Status Discrimination Ordinance (91 of 1997) (懀he FSDO� in that the requirements as set out in paragraph 3(c), (d) and (e) above do not appear in the regulations made under the SDO and the FSDO. According to the information paper issued by the Health and Welfare Bureau, those requirements are designed to maintain a balance between the need to take action against a discriminator and the right of a person with disabilities who may be suffering from an unlawful act but prefers not to pursue the matter by way of a court case.

7. According to the Administration, this Regulation is made after consulting the former LegCo Panel on Welfare Services, the Rehabilitation Advisory Committee, the EOC and the Joint Council for the Physically and Mentally Disabled.

8. The legal and drafting aspects of the resolution are in order.

Prepared by

Fung Sau-kuen, Connie
Assistant Legal Adviser
Provisional Legislative Council Secretariat
26 November 1997

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