Administration's Response to Points raised on 15 April 1999 by Members of the Bills Committee on Elections (Corrupt and Illegal Conduct) Bill

C1:	To respond to members' concern about the wide definition of "election advertisement" under the Bill which fails to reflect the policy intention to cover only those materials whose intent (as opposed to effect) is to promote or prejudice a candidate at an election.
A1:	Subject to Members' views, we suggest including an element of intention in the definition of election advertisement by substituting "has the effect" with "is for the purpose". This can reflect more clearly the policy to cover only those publicity materials which are intended to promote or prejudice a candidate or candidates at the election.
C2:	In relation to (1), to advise whether third-party individuals or organizations publishing commentaries on candidate(s) without the authorization of the candidate(s) concerned would be caught by the definition of "election advertisement", hence in breach of clause 23 of the Bill. Consideration should also be given to whether restricting third-party publications of such nature would be in breach of the spirit of Article 27 of the Basic Law which guarantees freedom of speech.
A2:	With the proposed amendment explained in A1 above, whether or not a commentary would be caught by the definition of "election advertisement" would depend on the purpose test. Newspapers carrying out their normal and ongoing activities of reporting and commenting on public affairs in a fair and objective manner would not be caught. The proposed restriction on "election advertisement" is to strike a balance between a level playing field that allows fair elections and freedom of speech.
C3:	To provide details on the existing practices of UGC-funded institutions and public-funded bodies concerning their staff's engagement in remunerated and non-remunerated public office and to consider a member's suggestion that the practices should be standardised under an agreed set of policy guidelines.
A3:	We are collecting the required information from the relevant bureaux and departments. We will respond as soon as possible.
C4:	To advise whether certain comments made by an employer would be regarded as using duress to induce an employee not to stand at an election, e.g. the terms of employment and the promotion prospect of the employee might be affected after being elected.
A4:	It is an offence under clause 8 for a person to use duress or to threaten to use duress to induce a person not to stand as a candidate. However, clause 8 would not prevent an employer from deducting salary from an employee in respect of a period of absence from work or even from sacking an employee for failing to carry out his duties. The clause would not catch an employer who explained to an employee who was a prospective candidate the consequences of being absent from work, of failing to carry out duties or of failing to meet targets. The clause would catch the employer who sacked or threatened to sack an employee simply because the employee was standing as a candidate or electioneering during his private time. Similarly it would catch the employer who imposed or threatened to impose financial penalty in the form of reduction in remuneration or other benefits on an employee simply because the employee was standing for election and electioneering in his private time.
C5:	To advise whether there is any limit on election expenses/election donations in overseas countries which have no restriction on volunteer service provided to candidates (item 3 of LC Paper No. CB(2)1680/98-99(01) refers).
A5:	Please see Annex.

Constitutional Affairs Bureau
26 April 1999

CWP933

Annex

Regulation of Election Expenses in Overseas Countries

Country	Restriction on volunteer service	Limit on election expenses	Limit on donation to candidate
Australia	No	No	No
Canada	No	Yes	No
Germany	No	No	No
Japan	No	Yes	Yes
Singapore	No	Yes	No
United Kingdom	No	Yes	No
United States	Yes	Yes	Yes

CWP936