Chapter V. The HKHRC in Operation
1. The Division of Work of the HKHRC and the HKEOC
1.4. Other forms of discrimination and a single equality legislation
812 Best Practice at 36.
813 Id.
814 People’s Republic of China (including Hong Kong and Macao),” (E/C.12/2005/SR.6-10, 25 April-13 May 2005), paragraph 81.
815 People’s Republic of China (including Hong Kong and Macao), (CEDAW/C/CHN/CO/6, 25 August 2006), paragraph 39.
816 Id, paragraph 35.
755. If possible, a comprehensive piece of legislation prohibiting discrimination on grounds not currently covered under HK law, such as race, age, sexual orientation and political orientation besides disability, sex and gender and family status should be enacted.
1.4.1. The advantages of single equality legislation
756. The advantage of the single statute method is the delivery of consistent legal treatment and procedures.817 One piece of legislation that provides for equal treatment of complainants across different strands “minimize[s] hierarchical differences between the grounds, and enhance[s] understanding and appreciation of the underlying principle of equality law.” 818
757. Moreover, the UCL survey comments that a piece of single equality legislation can simplify the work of a single equality commission:-
“The ability of a single commission to offer a cross-strand, one-stop shop, will be hampered by the confusion between the requirements imposed by different strands.819
758. Thereby, many jurisdictions for example Canada, and New Zealand have adopted a unified and single equality act, with slightly different approaches across the strands.820 All have comprehensive legislation extending to goods and services.821
759. In the UK, there has been some support for enacting a single equality act. Lord Lester of Herne Hill and Kate Beattie commented that “the CEHR will not be able to operate effectively unless it is able to operate within a legal framework which provides equal protection from unlawful discrimination to all. There is an urgent need for a comprehensive, coherent and user-friendly Single Equality Act to replace tangled and incoherent mess of existing equality laws…”822
760. The JCHR recognizes the advantage of a single equality act, but accepts a deferral in drafting and implementing the single equality act due to a lack of political and other
817 Ian Clyde and Simeon Beckett at 138.
818 UCL Survey at 9.
819 Id at 9.
820 Canadian Human Rights Act, Part I, Section 3(1); The Human Rights Act 1993 (New Zealand), Part II, Section 21.
821 UCL Survey at 9-10.
822 Lord Lester of Herne Hill and Kate Beattie at 207.
resources. The JCHR urges the administration to “address this issue before too long.” 823 It said:-
“Almost every submission we received regretted the lack [of]… a single equality Act, and several argued that the decision to proceed with the new body before the legislation had been rationalised and consolidated was either wrong in principle or unworkable. We recognise that it is not always possible to find the political and other resources to secure a neatly rational approach to legislative and institutional change. Nonetheless, we would urge that the time is found to address this issue before too long. We look forward not only to rationalisation of the existing equality legislation, but to the "levelling-up" of the laws relating to discrimination on all the grounds which are now identified, particularly by the extension of anti-discrimination provisions for the "new strands" beyond employment and training into the areas of the provision of education, goods and services and by the widening to all areas of discrimination of the concept of "positive duties"
requiring public authorities to promote equality of opportunity and treatment. We recommend that legislation to accomplish this, preferably within a single Equality Act, be introduced and enacted with all deliberate speed.”824 [emphasis added]
761. In addition, Amnesty International strongly endorses JCHR’s call for a Single Equality Act.825
762. The UK government, nevertheless, has rejected a single equality act without giving any substantial reason. It said:-
“We do not believe, however, that the complete legislative overhaul which the introduction of a Single Equality Act would require would be the best way forward at this stage. Experience has shown us that legislation alone will not deliver the changes necessary to promote equality and diversity in our society. We have, therefore, been working towards developing greater coherence within the legislative framework, via an incremental approach…”826
763. The Northern Ireland Equality Commission, in the absence of single equality legislation in the UK, have initially imposed differential treatment across the strands and experienced cost over-run difficulties in its legal work. While the Northern Ireland cannot
823 JCHR 11th Report, paragraph 46.
824 Id, paragraph 46.
825 Amnesty International UK, “Fairness for all: a new Commission for Equality and Human Rights,” (August 2004), available at http://www.womenandequalityunit.gov.uk/equality/project/consultations/amnesty_international_uk.doc
826 UK Government’s Response at 8.
enact single equality legislation on its own, its Equality Commission adopted a common protocol for handling cases following a report by an external consultant.827
1.4.2. According special attention on particular grounds
764. In a country where a specific ground of discrimination is of widespread concern and importance, the single equality legislation should accord special attention to such ground of discrimination by, for example, widening the scope of protection of victims being discriminated against, allocating more funding, or providing more protective remedies to the victims on such a ground.
765. In New Zealand, where the racial and ethic discrimination between the white people and the local Indians is deeply rooted, the Human Rights Act 1993 has widened the scope of protection of victims being discriminated against on the ground of race.
766. The Human Rights Act 1993, in addition to prohibiting discrimination on the grounds of age, colour, disability, employment status, ethical belief, ethnic or national origins, family status, marital status, political opinion, race, religious belief, sex and sexual orientation828, regards racial harassment and the excitement of racial disharmony as particular types of discrimination that are unlawful.829 Racial harassment is the use of language, visual material or behaviour that is racist, hurtful or offensive to a person subjected to it, either repeated or significant enough to have a detrimental effect on the person subjected to it830. Exciting racial disharmony is distributing material that is, or using words that are, threatening, abusive or insulting and are likely to provoke hostility and contempt towards people because of their race, colour or ethnic or national origins.831
767. In Hong Kong, the course of restructuring the institutional framework provides an opportunity for the HKSAR Government to consider whether single equality legislation prohibiting discrimination, not exhaustively, on the grounds of disability, sex and gender, family status, race, and age should be introduced.
768. The uniform approach provided by a single equality statute can simplify the casework of the HKEOC. In addition, the call against scattered pieces of antidiscrimination legislation
827 Equality Commission for Northern Ireland, “Report on the Implementation of the Section 75 Equality and Good Relations Duties by public authorities,” (1 January 2000 - 31 March 2002), available at
http://www.equalityni.org/uploads/word/280503FinalFullS75Report.doc at 56, paragraph 8.11.
828 The Human Rights Act 1993 (New Zealand), Part II, Section 21.
829 Id, Sections 61-63.
830 Id, Section 63.
831 Id, Section 61.
has been existed for a long time and the groundwork for such a reform has already been done: see the Human Rights ad Equal Opportunity Commission Bill 1994 prepared by Ms. Anna Wu and Ms. Carole Peterson832.
769. It is appreciated that determining the grounds of discrimination prohabited by the statute may require a period of consultation and deliberation with civil society as well as negotiation and compromises among the stakeholders. Regardless the possibly lengthy consultation period for the introduction of such single equality legislation should not delay the establishment of the HKHRC. As such, the Government should launch the campaign on the single equality legislation before or once the HKHRC and the HKEOC are in operation.
770. As Hong Kong has been long regarded as a diverse and multi-national community, there are seemingly no grounds of discrimination that would require special treatment under a single equality legislation.
771. If single equality legislation is delayed minimally, a common protocol for handling cases akin to that of the Northern Ireland Equality Commission should be implemented to simplify the work of the HKEOC during this interim period. Meanwhile, the HKHRC should advocate for the introduction of a piece of single equality legislation.