LC: Speech by SCMA in moving the resumption of the second reading debate of the Race Discrimination Bill

    Following is the speech (English translation) by the Secretary for Constitutional and Mainland Affairs, Mr Stephen Lam, in moving the resumption of the second reading debate of the Race Discrimination Bill in the Legislative Council today (July 9):
Madam President,

    First, may I thank the Bills Committee for the time and efforts which they have contributed over the past one-and-a-half year, which have enabled us to resume the Second Reading of the Race Discrimination Bill today. Since the Bill was introduced to the Legislative Council in December 2006, the Bills Committee have had 34 meetings, including two public hearing for members of the public to express their views directly to the Bills Committee. To facilitate the work of the Bills Committee, representatives of the relevant Bureaux, Departments and public authorities also participated in the Bills Committee discussions, to respond to Members' enquiries and to explain the proposed provisions as well as the relevant policies and measures.

    I would like to thank members of the Bills Committee and the people from different sectors of the community who have taken part in the discussions of the Bill. They have given us valuable comments and helped us to further improve the Bill. Later, at the Committee Stage, I shall move the Administration's proposed amendments to the Bill. These amendments have been proposed after taking into careful consideration the views we have received from different parties concerned.

    The Bill, when enacted, marks a major step forward for the community of Hong Kong in our endeavours for safeguarding human rights and for the elimination of race discrimination. The legislative process has taken considerable time. During this period, the discussions in the community had helped raise public awareness on human rights protection and on racial harmony. Looking back, 83 per cent of the respondents in the 1997 public consultation were against legislation on race discrimination. With years of continued Government efforts and public education, the situation has, one may say, been successfully turned round. Over the years, the Government has also been steadfast in providing support services to the ethnic minorities, to facilitate their integration into the community and to promote equal opportunities for them.

    The commitment and dedication of the Government in this regard is very clear. I should especially emphasise that we in the Government firmly uphold the principle of equality and is committed to the protection of human rights. This has been the foundation of our continued prosperity and stability. The success of Hong Kong has been the result of Hong Kong people's diligence, as well as the contribution of people from different races who share their talents in a harmonious society. Racial harmony is a particularly important ingredient for a harmonious society. Over the years, we have done much to eliminate racial discrimination. We will continue our efforts and strengthen our services as necessary.

    The main objects of the Bill are –

(a) to make racial discrimination and harassment in prescribed areas (employment; education; goods, facilities, services and premises; election and appointment to public bodies; issues related to barristers; and clubs) and vilification on the ground of race unlawful;

(b) to prohibit serious vilification on that ground; and

(c) to extend the jurisdiction of the Equal Opportunities Commission (EOC) to cover racial discrimination, harassment and vilification. The related functions include conducting publicity and public education to promote equality of opportunity between different racial groups; conducting investigation and conciliation in respect of cases and complaints concerning discrimination, harassment and vilification and issue code of practice to facilitate the public to comply with the provisions of the ordinance.

    The proposed legislation, when enacted, will apply equally to all people in Hong Kong, irrespective of their race. We aim at a scheme of safeguards which balance the rights and freedom of the different parties involved and at a piece of legislation which is reasonable in its justifications and practicable in implementation. On the one hand, the Bill protects the rights of the individual against racial discrimination. At the same time, it also respects the legitimate rights and freedoms of other persons affected.

    In the course of examining the Bill, some Members had expressed concerns on certain provisions of the Bill. I would like to take this opportunity to clarify and explain again the views of the Administration.

Exception clauses

    Some Members questioned the exception clauses in the Bill, which they consider to be narrowing the scope of the Bill. Some even alleged that these provisions would legitimise certain acts of racial discrimination. Such allegations are unfounded. Despite their nomenclature, these provisions have not been proposed purely for excluding certain activities from the application of the Bill. They have been proposed in order to ensure certain fundamental and important protection:

(a) despite no affirmative action being required in the Bill, we need to ensure that special measures which are intended for bestowing benefits on ethnic minorities and promoting equal opportunities for them would not become unlawful, although these measures are targetted at particular ethnic groups to the exclusion of others;

[examples include special measures (Clause 49), charities targeting at certain racial groups (Clause 50), and providing training to promote equal opportunity for ethnic minorities (Clause 51)];

(b) we need also to provide for lawful and justified protection for the legitimate rights and freedoms of others, and for other purposes which are justified on policy grounds and considerations;

[examples include hiring of domestic workers (Clause 10(7)), genuine occupational qualification for a particular racial group (Clause 11), and the choice of a landlord of small dwelling to decide on who can enter the premises and share the accommodation (Clause 29(2) and (30))];

(c) moreover, we need to clearly delineate the scope of the Bill and to provide for clarity and certainty of the law in areas which were not intended to be covered by the Bill;

[examples include matters not within the definition of "race"(Clause 8(2) and 8(3)); offer of overseas term of employment not on the ground of race (Clause 13); and use of language (Clause 58)].

Application to Government

    Some Members have expressed the concern that Clause 3 as originally drafted (i.e. "This Ordinance applies to an act done by or for the purposes of the Government that is of a kind similar to an act done by a private person.") might provide a broad exemption for the Government. On this matter, I should point out clearly that the original draft was to clarify that both the acts the Government and those of the private sector are governed equally by the Bill. It ought not to be misconstrued as an exemption for the Government. Nevertheless, in view of the concern raised by Members, we will introduce a Committee Stage Amendment (CSA) so as to amend Clause 3 as "This Ordinance binds the Government". This is to make clear that the proposed legislation, when enacted, will fully be applicable to the Government.

    Some members have suggested that, in addition to the prescribed areas of activities stipulated in the Bill, the Bill should also cover all the Government functions, including all acts of the Government in "the performance of its function and the exercise of its power". We should note that, unlike discrimination on the grounds of gender, disability or family status, racial discrimination involve much more complex issues and may therefore be easily abused. The inclusion of all government functions beyond the prescribed scope of the Bill could run the risk of an influx of litigation and complaints which are unreasonable and unnecessary. Such litigation is bound to detract government resources from proper use and would hamper efficient administration.

    As a matter of fact, the Bill already covers all the services and facilities provided by the Government. In regard to law enforcement, the Government is bound under the Basic Law, the Hong Kong Bill of Rights Ordinance and administrative laws not to discriminate on the ground of race. Apart from the legal remedy, there are other administrative avenues for redress of complaints against racial discrimination in law enforcement. Therefore, we do not consider it necessary to extend the scope of the Bill to cover such actions.

    There are circumstances, for example in the investigation and prevention of crime, which may call for targetted action at specific racial groups. For example:

(a) selection of passengers of certain ethnic groups for baggage examination at border control points on the basis of information or routine risk-profiling;

(b) stop, search and investigative actions may target at individuals of certain ethnic origins if race is one of the identifying descriptors of the suspect(s) of a particular crime case; and

(c) if intelligence gathered suggests that persons from certain countries are travelling to Hong Kong with plans to undermine the public security of Hong Kong, the law enforcement agencies might have to take follow up actions focusing on individuals from such countries (or ethnic groups).

    Hence, if the remit of the Bill were to be extended to cover all Government functions (including law enforcement functions), there could be a real risk that targets of such operations could raise claims on the allegation that the law enforcement agencies' actions constituted discrimination under the Bill. This would impair seriously the capability of law enforcement agencies to prevent or detect crime. Jurisprudence in the United Kingdom has demonstrated clearly that a police officer in the pursuit, arrest and charging of criminals is not providing a facility or service to the criminals. Therefore, the Bill does not cover these activities. We also do not consider it appropriate to expand the scope of the Bill to cover these activities.

Definition of racial discrimination (Clause 4)

    Clause 4 of the Bill defines racial discrimination. It incorporates, in Clause 4(2) to 4(4), the criteria for assessing whether a requirement or condition imposed by a person may be justifiable, and hence, does not constitute indirect racial discrimination. To address the concern raised by members in regard to the inclusion of the alternative test of "reasonable practicability" in Clause 4(2)(b), we will propose a CSA to delete Clause 4(2)(b) as well as the related Clauses 4(3) to 4(5).

Application of the Bill to new arrivals from the Mainland

    During discussions of the Bill, a number of Members have expressed their concern for new arrivals. Some had misunderstood that new arrivals were excluded from the protection of the Bill.

    I reiterate that the Bill does not exclude new arrivals from its ambit. Like anyone else in Hong Kong, they are protected under the Bill.

    In line with the definition in the International Convention on the Elimination of All Forms of Race Discrimination, the Bill defines "race" as "race, colour, descent or national or ethnic origin". This definition does not include other matters such as the nationality, citizenship, residency status or length of residency of a person. Clause 8 is to provide clarity of the legislation to prevent future dispute on whether these matters fall within the meaning of race and to avoid unnecessary litigations which would be disruptive to society. We also do not support the idea of arbitrarily classifying new arrivals from the Mainland as a distinct racial group.

    On the other hand, we are mindful that, similar to other new immigrants, some of the new arrivals from the Mainland may have difficulties adapting to the living in a new environment in Hong Kong. Hence, the Home Affairs Bureau has established an interdepartmental co-ordinating committee to coordinate the services provided by various departments for new arrivals. They also monitor closely the service needs of new arrivals and ensure that the services provided meet their needs. With a view to strengthening the work in this regard, the Family Council will also establish a subcommittee to examine their service needs and to identify new initiatives and measures to strengthen support services for new arrivals.

Use of language in provision of education, vocational
training and services (Clause 58)

    Language proficiency and use of language is a matter of common concern to ethnic minorities. We share this concern and fully understand the difficulties faced by those members of ethnic minorities who have difficulties in using Chinese. However, we are also cautious that it would not be practicable or reasonable for service providers in the private or public sectors to conduct their business in different languages or provide interpretation. We, therefore, believe that the provision in Clause 58 both necessary and is in the interest of the community.

    That said, we agree that the Government should provide appropriate support to enhance the opportunity for ethnic minorities for education, employment and for integration into the community. In education, the Education Bureau has done a lot, including the exercise of flexibility in regard to the General Chinese Language requirement for admission to universities and to Secondary Six, introducing supplementary guide for non-Chinese speaking students, enhancing support services for designated schools and increasing the number of these designated schools, etc. On vocational training, the Vocational Training Board and the Employees Retraining Board have, having regard to the needs of ethnic minority students, offered more targetted courses, including courses on Chinese language and job interview techniques. On July 7, I wrote to the Chairman and Members of the Bills Committee to lay out in detail the further new support measures which would be implemented to enhance the provision of vocational training for ethnic minorities.

    To facilitate access to public services for ethnic minorities, the Government has allocated $16 million in this financial year for the setting up of four support centres in different districts to provide interpretation services for ethnic minorities. These centres would also organise Chinese and English language courses and other activities to help them integrate into the community. As regard interpretation services for patients at public hospitals and clinics, the Hospital Authority (HA) will arrange, at its public hospitals and clinics, free interpretation for those members of ethnic minorities who require such service. In 2008, the HA will further implement a series of measures to improve its service management, policies and standards, enhance the participation and training for frontline staff. It will arrange for on-site interpretation and, as necessary, telephone interpretation service.

Administrative guideline on promotion of racial equality

    In addition to the support measures described, the Administration will prepare guidelines for the key Bureaux and departments, in their implementation of their relevant policies and measures. The guidelines will focus on key services including medical, education, vocational training, employment and major community services. They are expected to cover the Hospital Authority, Department of Health, the Education Bureau, Labour Department, Social Welfare Department and the Home Affairs Department. They are also expected to involve other organisations including the Vocational Training Council, Employees Retraining Board and Construction Industry Council.

    We would invite Bureaux and Departments to assess the impact of their polices and measures on racial equality, to consider the measures to be implemented to eliminate unlawful racial discrimination, to promote racial equality and to enhance support services to ethnic minorities in the light of such assessments, and to formulate performance pledges, targets or indicators as appropriate. The Bureaux and departments will publicise the measures taken and the relevant assessments or considerations, and will provide training or briefing to staff on the implementation of the guideline.

    We will set up an inter-departmental body to coordinate the preparation of the guidelines. The Constitutional and Mainland Affairs Bureau will take an overview on the implementation in the Administration as a whole. We will consult relevant parties including the relevant ethnic minority groups such as the Committee on Promotion of Racial Harmony and related non-government organisations to solicit their views and suggestions.

    When completed, the guidelines will be published for the information of Legislative Council, the general public, relevant organisations of the ethnic minorities, other interested organisations and the media. They will also be posted on the Government website for public access. We will also brief the relevant Panel of the Legislative Council on the progress.

    In respect to provision of resources, we will ask the Bureaux and Departments concerned to consider the resources required and, as needed, seek additional resources through appropriate channels and procedures.

    To assist the staff in implementing the guidelines, we will explore with the Civil Service Training and Development Institute the feasibility of strengthening training support. We will also discuss with the EOC suitable measures to enhance staff awareness in the light of the Bill.

    Madam President, the Bill represents the important step forward in reinforcing the legal protection and promoting racial harmony within the community, so that Hong Kong people, irrespective of their race, would be protected from racial discrimination. At the same time, the Government will continue to enhance support service for ethnic minorities and new arrivals from the Mainland, in order to facilitate their fuller integration into the community. I ask Members to support the Bill, and the various amendments which I would propose at the Committee Stage.

    Thank you, Madam President.

Ends/Wednesday, July 9, 2008