Legislative Council

LC Paper No. CB(1)857/98-99

Ref : CB1/SS/3/98

Purpose

This paper reports on the deliberations of the Subcommittee on Ozone Layer Protection (Controlled Refrigerants) Regulation (Commencement) Notice 1998.

Background

2. To enable Hong Kong to meet its international obligations under the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer, the Ozone Layer Protection Ordinance (Cap. 403), was enacted in June 1989. The Ordinance provides for the control on import and export of ozone depleting substances controlled under the Protocol, as well as the prohibition of their manufacture in Hong Kong. In November 1992 the Parties to the Protocol decided to accelerate the phasing out of production of halon, chloroflurocarbons, carbon tetrachloride and methyl chloroform. Legislative amendments were thus made to enable Hong Kong's continued compliance with the obligations under the Protocol. Amongst those legislative changes, there was the Ozone Layer Protection (Controlled Refrigerants) Regulation (the Regulation) which was made in May 1993.

3. According to the Administration, the original intention was to put the Regulation into operation on 1 January 1994. However, a Commencement Notice in the Gazette which appointed 1 January 1994 as the commencement date was published as a Government Notice (G.N. No. 4794) and was not laid on the table of the Legislative Council as is required of subsidiary legislation under section 34(1) of the Interpretation and General Clauses Ordinance (Cap. 1). The Administration is of the view that the requirement of tabling of subsidiary legislation in the Legislative Council is mandatory, the Commencement Notice is therefore ineffective. To give the Regulation legal effect, the Administration published another Commencement Notice which appoints 1 January 1999 as the day on which the Regulation is to come into operation.

The Subcommittee

4. Members decided at the House Committee meeting on 8 January 1999 to set up a Subcommittee to study the issue. Hon Ronald ARCULLI was elected Chairman of the Subcommittee. The Subcommittee has held one meeting with the Administration. The membership list of the Subcommittee is at Appendix I.

Deliberations of the Subcommittee

5. The Subcommittee reckons that the crux of the issue is whether failure to table would make a piece of subsidiary legislation invalid. Members note that there is no express statutory provision or binding judicial authority on the validity or otherwise of subsidiary legislation which has not been tabled. The Administration's stance on the issue is inconsistent. Whilst maintaining that the commencement notice in respect of the Ozone Layer Protection (Controlled Refrigerants) Regulation was invalid because it had not been tabled, the Administration provided a contrary advice when dealing with a similar situation in 1997. On that occasion, pursuant to Regulation 35 of the Rabies Regulation (Cap. 421 sub. leg.), a piece of subsidiary legislation was published as a Government Notice No. 2346 in 1995. It was then replaced by a Legal Notice i.e. Rabies Regulation (Replacement of Schedule 1) Notice 1997 (L.N. 194 of 1997). The Administration's then view was that the former Notice in question had legislative effect and such legislative effect was not dependent on the tabling of the Notice in the Legislative Council.

6. The Subcommittee has identified two provisions in the Interpretation and General Clauses Ordinance, Cap. 1 relevant to the consideration of the issue, namely sections 28 and 34. Section 28 of Cap. 1 provides that a piece of subsidiary legislation comes into operation at the beginning of the day on which it is published in the Gazette. Section 34 requires all subsidiary legislation to be laid on the table of the Legislative Council at the next meeting after the publication in the Gazette. This section is silent on the consequences of failing to table.

7. Whether tabling of subsidiary legislation is part and parcel of the legislative process for the purpose of giving legal effect to the subsidiary legislation is considered a crucial question by the Subcommittee in determining the validity of the piece of subsidiary legislation in question. Section 34(2) provides that if the Legislative Council passes a resolution to amend a piece of subsidiary legislation, the subsidiary legislation shall be deemed to be amended as from the date of publication in the Gazette of such resolution. The Administration confirms that anything done under the subsidiary legislation before it is amended by the Legislative Council shall not be prejudiced. In other words, that subsidiary legislation has already had legal effect prior to any amendment passed by the Legislative Council. Members further note that there have been occasions on which the Legislative Council repealed a piece of subsidiary legislation during the scrutiny period for various reasons. This constitutes unequivocal evidence that the subsidiary legislation in question is valid, otherwise there will be no point in repealing it. The Subcommittee therefore forms the view that the legislative process has been completed upon the publication of the subsidiary legislation in the Gazette. The tabling requirement stipulated in section 34 provides a mechanism for the Legislative Council to scrutinize subsidiary legislation made pursuant to delegated authority conferred in primary legislation. This enables the Legislative Council to supervise its delegates in the exercise of the power in making subsidiary legislation.

8. As the legislative process is considered completed upon the publication of the subsidiary legislation in the Gazette and there is no specific requirement on whether this should be in the form of a Government Notice or Legal Notice, the Subcommittee concludes that the Government Notice No. 4794 in 1993 was validly made. This being the case, the Subcommittee considers it both unnecessary and lacking in legal authority on the part of the Administration to publish the second Commencement Notice to appoint a fresh commencement date of the Ozone Layer Protection (Controlled Refrigerants) Regulation. In the absence of a proper authority to publish the second Commencement Notice, the legal effect of this piece of subsidiary legislation is in doubt. The Legislative Council therefore cannot rely on section 34 to amend or repeal it. Although the Administration has advised members that the trade has complied with the provisions of the Regulation since 1 January 1994 and that no prosecution action has been taken, the Subcommittee is of the view that the existence of two commencement dates in the Gazette for the same regulation would cause confusion and has requested the Administration to find the best way to tackle the issue. One of the ways suggested by the Subcommittee is to issue a corrigendum notice.

Recommendation

9. The Subcommittee considers it necessary to record its view on the validity of the Government Notice No. 4794 at a Council meeting before the expiry of the scrutiny period of the second Commencement Notice on 10 February 1999. Subject to the view of the House Committee, the Subcommittee suggests that a report on its deliberations be presented to the Council on 10 February 1999 under Rule 21(1) of the Rules of Procedure.

Advice sought

10. Members are requested to support the recommendation of the Subcommittee at paragraph 9 above.


Legislative Council Secretariat
4 February 1999

Appendix I