The Equal Opportunities Commission (EOC), a statutory body mandated to implement the anti-discrimination ordinances in Hong Kong, has launched a 3-month public consultation on the Discrimination Law Review (DLR) from 8 July to 7 October 2014.
This is the first review since the passage of the four antidiscrimination ordinances in 1996 covering bias on the ground of sex, disability, family status and race. The EOC is seeking the public’s views on whether to extend the antidiscrimination laws to protect mainlanders (PRC nationals visiting Hong Kong), new migrants, and unmarried couples. Same sex marriage however is not part of this consultation due to its relatively more controversial and complex nature, which has to be dealt with separately.
The EOC believes that it is an appropriate time to conduct a comprehensive review and make proposals to the Government on reforming the discrimination laws so as to ensure that the discrimination laws in Hong Kong continue to be effective in protecting equality of rights as guaranteed under the Basic Law and relevant international covenants.
One of the issues on the agenda is whether to consolidate all four discrimination laws into one so that it is more consistent and easier to understand and apply. The review also aims to modernise the current laws taking into account improvements in similar international jurisdictions.
A key proposal is to legislate against prejudice based on nationality, citizenship and residency. Currently, there are protections for race discrimination in relation to the “race, colour, decent, national or ethnic origin” of a person, but bias against people of one’s own race is not covered. In view of the growing tensions between persons from Hong Kong and Mainland China which has led to verbal and even physical assaults in the Hong Kong society, it has been suggested that residency and related immigration status should be added to the forms of protection from race discrimination. This relates to differences of treatment based on whether the persons are Hong Kong permanent residents, immigrants to Hong Kong or other types of residents. Consideration is given whether the current exceptions to race discrimination on the grounds of permanent residency, length of residence in Hong Kong, and resident status of a person in another country should be repealed. This may have an impact on existing public policies, such as the “locals-only” land sales rules and the eligibility for subsidised housing and welfare payments for Hong Kong residents. The proposal is designed to address prejudice against new immigrants and tourists in Hong Kong.
Another issue is whether to broaden the definition of marital status to expressly include de facto relationships (homosexual or heterosexual), which may be known as civil unions or common-law partnership in other countries. If de facto relationships are protected from discrimination, this may have far-reaching implications as entitlement to employment and health benefits can potentially be extended to unmarried couples, regardless of sex.
The EOC also seeks the public’s opinion on whether to explicitly include a requirement to provide reasonable accommodation for the disabled. This requirement would help the disabled to better participate in all areas of life, such as education, employment and travel.
In relation to sexual harassment, it has been suggested in the DLR that protection should be given to workers employed by different employers in a common workplace as the current legislation only offers protection from sexual harassment by fellow employees.
Separately, the government recently introduced a bill to amend the Sex Discrimination Ordinance to protect service providers from sexual harassment by their customers following the recommendations by the EOC. The amendment seeks to fill a loophole of the current legislation. The bill also seeks to outlaw sexual harassment taking place on a Hong Kong-registered ship or aircraft while outside Hong Kong. If the bill is passed by the Legislative Council, it is believed that this will give greater protection to employees in the service industries.
The EOC has been relatively robust in suggesting amendments and improvements to the anti-discrimination laws. This is partly due to the increasing awareness of equality issues and higher expectation for equal rights in Hong Kong. Some of the issues may have a serious impact on public policies.