On 7 October 2014, the Hong Kong Equal Opportunities Commission (“EOC”) will conclude its inaugural review of the anti-discrimination legislation (the “Consultation”) in the Special Administrative Region of China (the “SAR”). The Consultation represents an ambitious project to align domestic laws with Hong Kong’s constitutional guarantees of equality and obligations under international covenants and with contemporary social values. Simplification, modernisation and harmonisation of laws and mainstreaming of equality principles are the cornerstones of the Consultation.
Among other issues, the EOC has invited comments on the following issues:
- whether the existing anti-discrimination laws, namely, the Sex Discrimination Ordinance, the Disability Discrimination Ordinance (“DDO”), the Family Status Discrimination Ordinance and the Race Discrimination Ordinance (“RDO”), should be unified in one legislation;
- whether the grounds of protection should be expanded to include nationality, citizenship and residency; de facto relationships; and potential pregnancy;
- whether a duty of reasonable accommodation should be imposed on employers, schools, owners and managers of premises and other service providers (currently, there is a broad defence of “unjustifiable hardship”, as defined in the DDO, s 4);
- whether the burden of proof should shift to the respondent to prove no discrimination once the claimant establishes that facts from which discrimination can be inferred;
- whether protections against harassment should apply uniformly to all protected grounds; and
- whether a duty on public authorities to promote equality across all the protected attributes should be introduced.
Current laws protect people from discrimination, harassment and victimisation on the grounds of their sex, pregnancy, marital status, disability, family status and race. The laws apply to the contexts of employment, education, retail consumption and government services. However, the EOC has identified numerous gaps and limitations in the existing anti-discrimination framework as well as discrepancies in the way the four Ordinances protect the relevant grounds. For example, the RDO does not cover government bodies, unlike the other three Ordinances. The law does not protect a person from sexual harassment by another in a common workplace, where there is no employment relationship between them. Indeed, the EOC’s public consultation document contains a long list of issues for legislative spring-cleaning.
The Consultation is motivated by the urgent need to ease certain social frictions that have flared in Hong Kong’s rapidly changing demographics. The expansion of the racial grounds is meant to address the growing prejudice experienced by new immigrants and visitors from Mainland China. Discrimination between ethnic Chinese Hong Kong-ers and ethnic Chinese Mainlanders, for example, is not unlawful in the RDO. The scope of the Consultation, however, excludes examination of the potential grounds of sexual orientation, gender identity, intersex status and age. It will be difficult for the Consultation to thoroughly address the reform of family and marital status protections in light of such exclusions. The EOC has indicated that it will consider reviewing these grounds in separate consultations.
The EOC seeks to modernise Hong Kong laws by drawing on international practices, and has made preliminary recommendations based on the laws of Australia and England and Wales. While these recommendations are sensible, whether the pending law reform will garner public support depends on how different interests are balanced by the defences, exemptions and procedural safeguards –relevant proposals have yet to be disclosed. Moreover, a major concern for Hong Kong-ers is that legal reform could lead to a Pyrrhic victory for “equality” when underlying tensions are left unresolved, if not aggravated. Anti-Mainlander sentiments have been attributed to ineffective immigration policies vis-à-vis Mainland arrivals, which Beijing has overriding influence over due to Hong Kong’s status as a SAR. This throws a unique spanner in the works for adopting suggestions based on foreign laws.
The outcome of the Consultation is expected to have enormous impact on equality and human rights protection in Hong Kong. The EOC will submit its findings to the Hong Kong government in mid-2015.
The South China Morning Post reported on 29 Oct, 2014, “[a]n unprecedented flood of submissions on planned amendments to anti-discrimination laws will delay results of the public consultation on the changes by two to three months. With three days left for submissions, more than 80,000 have been received, with many revealing misconceptions about the planned amendments.” (The Consultation was extended to 31 Oct 2014.)