Provisional Legislative Council

PLC Paper No. CB(2)1182
(These minutes have been seen
by the Administration)

Ref : CB2/PL/HA

Provisional Legislative Council
Panel on Home Affairs

Minutes of Meeting held on Monday, 19 January 1998 at 10:45 am in Conference Room A of the Legislative Council Building

Members present :

Hon Mrs Peggy LAM, JP (Chairman)
Hon WONG Siu-yee
Hon CHAN Choi-hi
Hon Kennedy WONG Ying-ho
Hon LAU Kong-wah

Members Absent :

Hon LO Suk-ching (Deputy Chairman)
Hon Ronald ARCULLI, JP
Hon Bruce LIU Sing-lee
Hon NGAN Kam-chuen

Public Officers Attending :

Item II

Mr David LAN, JP

Secretary for Home Affairs

Mr John WAN

Principal Assistant Secretary for Home Affairs (1)

Mr Peter WONG

Senior Assistant Solicitor General

Item III

Miss Helen TANG

Principal Assistant Secretary for Home Affairs (3)

Dr Y M LEUNG

Assistant Director of Education

(Curriculum Development Institute)

Attendance by Invitation :

Item III

Alliance of Hong Kong Youth Group

Mr CHAN Tak-ming

Chairman, Elegance Society

Mr CHAN Yun-kan

Vice-Chairman, Hok Yau Club

Miss Peggy WONG

Chairlady, Federation of New Territories Youth

Mr Alan MAH

Chairman, Ching Fai Culture and Recreation Association

Miss Christine CHAN

Chairlady, The Hong Kong New Generation Tertiary Student Forum

The Hong Kong Council of Social Service

Mr YIU Tze-leung

Chairperson, Children and Youth Division

Assistant Community Service Secretary (C & Y)

Tung Wah Group of Hospitals Community Services Division

Mr James LEUNG

Member, Children and Youth Division Management Committee

Assistant Director, The Boys' and Girls' Clubs of Hong Kong

Miss Jane TSUEI

Division Officer, Children and Youth Division

Clerk in Attendance :

Mrs Constance LI

Chief Assistant Secretary (2) 2

Staff in Attendance :

Mr Raymond LAM

Senior Assistant Secretary (2) 6

---

I. Confirmation of minutes of meeting and matters arising

(PLC Paper No. CB(2)830)

1.The minutes of the meeting held on 15 December 1997 were confirmed.

2.Members noted that following Panel discussion on 17 November 1997, the Administration had provided the draft rules in respect of the Attachment of Income Orders for enforcement of maintenance orders (PLC Paper No. CB(2)885). Members who had any comments on the draft rules could forward their views to the Panel Clerk by 26 January 1998 for onward transmission to the Administration.

II. Resolution under section 2(3) of the Legislative Provisions (Suspension of Operation) Ordinance 1997 (126 of 1997) and Hong Kong Bill of Rights (Amendment) Bill 1998

[Paper No. CB(2)866(01)]

3.At the invitation of the Chairman, the Secretary for Home Affairs (SHA) briefed members on the resolution seeking to extend the suspension period of the Hong Kong Bill of Rights (Amendment) Ordinance 1997 (Amendment Ordinance) to 28 February 1998. Members noted that the Amendment Ordinance was introduced by a former Legislative Councillor Mr LAU Chin-shek and enacted by the former Legislative Council on 27 June 1997. The Administration was of the view that the Amendment Ordinance was passed hastily by the then Legislative Council without the benefit of scrutiny by a Bills Committee. To enable the Administration to examine the implications of the Amendment Ordinance, the Provisional Legislative Council (PLC) had agreed to the Administration's requests to suspend the operation period of the Amendment Ordinance up to 31 January 1998. SHA informed members that the Administration had given notice to introduce the Hong Kong Bill of Rights (Amendment) Bill 1998 into PLC on 21 January 1998, seeking to repeal section 3(3) and (4) in the Ordinance (BORO). Further extension of the suspension period up to 28 February 1998 was therefore necessary to allow sufficient time for Members to examine the Administration's proposal.

4.On the justifications for repealing the Amendment Ordinance, SHA and the Senior Assistant Solicitor General (SASG) said that the newly introduced section 3(3) and (4), when read with section 7, could give rise to legal uncertainty and confusion. The apparent inconsistency of these sections could lead to the following possible interpretations -

1. section 7 of the Hong Kong Bill of Rights Ordinance (BORO) prevailed over section 3(3);

2. the Amendment Ordinance reversed the Court of Appeal ruling in the case of TAM Hing-yee Vs WU Tai-wai such that notwithstanding section 7, as from 30 June 1997 when the Amendment Ordinance took effect, all pre-existing legislation inconsistent with BORO was repealed, regardless of whether such legislation was invoked by Government/public authority or private citizen; and

3. the two new subsections introduced under the Amendment Ordinance prevailed over section 7 thereby imposing obligations on private citizens contrary to the original intent of BORO.

5.In response to a member, SHA stated that the proposed repeal of section 3(3) and (4) would not reduce human rights protection in Hong Kong. He said that Article 39 of the Basic Law already provided for the continued application of the provisions of the International Covenant on Civil and Political Rights (ICCPR) as applied to Hong Kong. SASG added that ICCPR did not specify how the obligations in respect of inter-citizen relations should be implemented. Each jurisdiction could decide the measures to be adopted to comply with ICCPR provisions. Responding to another member, SASG advised that in other State Parties to ICCPR such as Australia, New Zealand, Canada and the United Sates, inter-citizen relations were safeguarded through enactment of specific legislation.

6.A member enquired whether the protection afforded by section 3(3) and (4) was adequately covered by other existing legislation if the section was repealed. SHA responded that human rights protection as guaranteed under BORO would remain unchanged with the repeal of section 3(3) and (4). In fact, inter-citizen relations were safeguarded in Hong Kong by specific anti-discrimination and privacy protection legislation including the Sex Discrimination Ordinance, the Disability Discrimination Ordinance, the Family Status Discrimination Ordinance and the Personal Data (Privacy) Ordinance.

7.Some members expressed doubt as to whether the co-existence of section 3(3) and (4) and section 7 in BORO would actually give rise to legal uncertainty. They considered that the issue could be left to the court to give a ruling. A member quoted an example that the uncertainty about the right of abode of Mainland children under Article 24(3) of the Basic Law was cleared following a court interpretation of Article 24 of Basic Law. In response, SHA and SASG said it was undesirable to allow inconsistent provisions in legislation which would cause confusion and uncertainty to the public. SASG clarified that the issue of right of abode of children within the categories of Article 24(3) of Basic Law was different in that it involved interpretation of a constitutional document. As the legal uncertainty now under discussion was caused by the Amendment Ordinance enacted through a legislative process, it would be appropriate to remove the inconsistency by a legislative amendment. Considering that the Amendment Ordinance had been effective for a short period from 30 June 1997 to 17 July 1997, a member asked whether any individual or organisation could invoke legal proceedings against the Administration for the proposed repeal. SHA replied that should this occur, it would be for the court to decide. The major consideration of the Government on the matter was to clear any inconsistency and uncertainty in BORO. The Government was of the view that the legislative intent of BORO should be preserved as BORO was enacted after extensive public consultation.

8.For the benefit of those members who were not involved in the legislative process of BORO in 1990, the Chairman briefed members on the background. She said that the then Legislative Council committee responsible for the scrutiny of the Bill of Rights in 1990 had examined the propriety of including inter-citizen rights in BORO but eventually agreed to exclude inter-citizen relations to avoid unnecessary litigation. The legislative intent was clearly stated in section 7 of BORO that BORO only binds the Government and public authorities.

9.On the question why the Government had delayed the introduction of the Amendment Bill, SHA said that the Government needed time to examine the complicated legal issues arising from the Amendment Ordinance. In response to members, SASG said that the Government had consulted the Hong Kong Bar Association (BAR) which took a different view that the Amendment Ordinance required no amendment or repeal.

10.With regard to a member's question on the possibility to defer the introduction of the Bill until the establishment of the first Legislative Council of the Hong Kong Special Administrative Region, SHA said that having regard to the legal uncertainly associated with section 3(3) and the imminent expiry of the suspension period of the Amendment Ordinance, it would be undesirable to defer the introduction of the Bill. He added that the Bill was essential and necessary for the purpose of the terms of reference of PLC.

11.The Chairman noted that some members held different views from that of the Government. She advised that members might wish to further discuss the Bill at the meetings of the relevant Bills Committee, if formed.

III. Youth Policy (meeting with deputations and the Administration)

Meeting with Alliance of Hong Kong Youth Group (AHKYG)

[Paper No. CB(2)866(02)]

12.At the invitation of the Chairman, representatives of AHKYG presented their submission and highlighted the following -

1. A clear concept of youth development was vital to effective co-ordination in youth policy.

2. As youth matters covered a wide spectrum including education, recreation, arts, sports, and social welfare, AHKYG was concerned whether the Home Affairs Bureau, which was entrusted with the policy responsibility for youth policy, had adequate resources for performing such a huge task involving a number of policy bureaux.

3. A number of youth organizations were at present not represented in the Commission on Youth (the Commission) which was tasked to co-ordinate the work of various youth organizations.

4. There was no enforcement agency and resources were lacking for the implementation of the Charter for Youth (the Charter).

5. AHKYG suggested the Administration to -
   1. formulate a development-based youth policy; and

   2. facilitate the formation and development of youth organizations through establishment of a direct subsidy scheme and a youth/student organization registration system.

Meeting with the Hong Kong Council of Social Service (HKCSS)

(PLC Paper No. CB(2)898)

13.At the invitation of the Chairman, representative of HKCSS presented the submission which was tabled at the meeting (PLC Paper No. CB(2)898). The following were highlighted -

1. In formulating youth policy, consideration should be given to:
   1. the needs of the youth at different stages of development and the provision of equal opportunities for youth;

   2. the findings of youth-related research;

   3. strengthening participation of the community and youth in the policy formulation and implementation process; and

   4. the enactment of legislation where necessary.

2. The function of the Commission should be expanded to include formulation of youth policy and more resources to be provided for implementation.

HKCSS

13.Referring to the last sentence of paragraph 2.2.2 of the submission, a member requested HKCSS to provide further concrete proposals regarding their suggestion of formulating a far-sighted and pragmatic youth policy. Representative of HKCSS undertook to provide the proposals in writing.

Meeting with the Administration and Panel discussion

[Paper No. CB(2)866(03)]

14.At the invitation of the Chairman, Principal Assistant Secretary for Home Affairs (3) (PAS(HA)3) highlighted the salient points in the Administration's paper.

15.In explaining the composition of the Commission, PAS(HA)3 informed members that the Commission comprised Government representatives from a number of policy bureaux and representatives from different sectors of the community. The Administration always sought the advice of the Commission on issues relating to youth.

16.PAS(HA)3 informed members that the Charter which set out the principles and goals of youth development was drawn up in 1993. Since then, the Commission had carried out two reviews on the implementation of the Charter, and the recent review meeting was held in December 1997. PAS(HA)3 added that the Preparatory Committee for the Review of the Charter for Youth, with members elected from all subscribers of the Charter, was set up last year specifically for reviewing the implementation of the Charter.

17.Members were concerned about the coordination and possible overlap of work between the Government and non-Government organisations (NGOs) in the implementation of the Charter. Some members pointed out that insufficient resources were allocated to NGOs providing youth services. In response, PAS(HA)3 informed members that NGOs could apply for funding support from various sources. Taking the Commission on Youth as an example, the Commission had just been allocated $3 million to subsidize youth activities organised by NGOs to the mainland, with a view to promoting our youth's better understanding of China.

18.PAS(HA)3 informed members that the Commission was serviced by staff from the Home Affairs Bureau, with a recurrent expenditure of about $ 900 000.

19.Mr WONG Ying-ho said that the Administration had not responded to the Motion on Youth Policy moved by him and passed by PLC on 3 December 1997. Another member referred to paragraph 2.4.2 of HKCSS's submission and enquired about the Administration's application of the indicators proposed by the Commission in its publication entitled "Youth in Hong Kong : A Statistical Profile". Some other members also requested for more information about the way forward on youth policy and the findings of the recent review on the implementation of the Charter in December 1997.

20.As the Administration would need time to prepare its responses to members' questions and views expressed by the deputations, the Chairman suggested and members agreed that discussion on the subject should continue at the next Panel meeting. The Chairman requested the Administration to provide the following information at the next meeting -

1. the way forward on youth policy, together with the concrete proposals and timetable for the implementation of such policy;

2. the annual breakdown of the resources allocated in the past three years for implementation of youth policy;

3. the accomplishments in respect of youth policy since the establishment of the HKSAR Government;

4. the Administration's response to the Motion on Youth Policy passed by PLC on 3 December 1997;

5. the youth-related programmes to be financed by the Quality Education Fund; and

6. the employment situation of tertiary education graduates and the Administration's plans to assist these graduates.

IV. Items for discussion at the next meeting

[Paper No. CB(2)866(04)]

21.Members considered the list of discussion items for future meetings and agreed to discuss the following at the next meeting on Monday, 16 February 1998 -

1. follow-up on the discussion of youth policy; and

2. division of work for projects under the Rural Planning and Improvement Strategy (RPIS).

22.The meeting ended at 12:20 pm.

Provisional Legislative Council Secretariat
10 March 1998