Law Yuk Kai Director, HK Human Rights Monitor 13 October 2004

1. Comments on controversial issues in the Consultation Paperon Legislation Against Racial Discrimination Law Yuk Kai Director, HK Human Rights Monitor 13 October 2004

2. Four areas to work on • Legislation • Policies & practices • Education • Media

3. Racial Discrimination – Definition • Discrimination based on “race (種族), colour (膚色), descent (世系), or national or ethnic origin (民族或人種)” ---- Source: Article 1(1), International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) • Problems in the step by step approach: • lack of willingness to address all kinds of discrimination • non-inclusion of new arrivals in the concept of "ethnic group"

4. A functional definition to include new arrivals from Mainland China? • "Functional": based on the nature of the domestic problems and solutions. • Australia: status as immigrant or ex-immigrant – why not even migrant and ex-migrant • UK: nationality in spite of Article 1(2): "This Convention shall not apply to distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non-citizens."

5. New arrivals from Mainland China • Reasons for non-inclusion: • The SAR Government 's stated position: • new arrivals from the Mainland are of the same ethnic stock as local Chinese and therefore do not constitute a racial or ethnic group in HK according to ICERD (CP24-25); • claimed that experts in the UN Race Committee share its view • not within the Common Law definition of ethnic group • Floodgate? • There will be a lot of cases initiated by these new arrivals. • Rumor? • The inclusion will make Mainlanders (and Chinese leaders) look bad if they need the new law for protection.

6. New arrivals from Mainland China • Alternatives: • Expand the definition to include new arrivals from Mainland China. • Expand the definition to cover immigrant and ex-immigrant. • HK Human Rights Monitor's proposal: To expand the definition of national origin to include nationals from each of the legal jurisdictions in China namely, Mainland, Taiwan, Macau and Hong Kong. • Failing that • Ask the Government for a time table to address discrimination against

7. Language and religion -- not included in the definition • May be taken as the grounds in indirect discrimination • but with much greater difficulties (See problems in proving indirect discrimination)

8. Six types of racial discrimination to be addressed (CP34) • Direct racial discrimination • Indirect racial discrimination • Discrimination on the basis of the race or ethnic origin of the spouse or a relative of a person (transferred discrimination) • Discrimination by way of victimization • Racial harassment • Racial vilification

9. Direct discrimination: • Definition specific for Racial Discrimination to be adapted from SDO, DDO & FSDO (CP33). • Definition of Direct Racial Discrimination (based on CP35 and the above Ordinances): "A person (X) discriminates against another person (Y) if on racial or ethnic grounds he (X) treats that person (Y) less favourably than he (X) treats or would treat other persons (Zs)."

10. Stages of proving discrimination • The victim's (Y's) needs to • prove differential treatment • prove less favourable / detriment • identify and prove Y's race • find a comparator (may be a hypothetical person) • prove casual relation -- on the ground of Y's race • If there is a prima facie case, the defendant (X) has a case to answer. Then after X's answer, taking into the evidence adduced by both sides, the court need to decide, based on a standard of "on the balance of probability" (whose story is more likely to be true) and on who has the burden of the proof, whether there was racial discrimination.

11. Difficulties in proving direct discrimination • Differential treatment – usually involves problems of evidence • less favourable / detriment – mixed test (of objective and subjective ones) • Identify Y's race – choosing the right race • find a comparator – finding an actual comparator or a hypothetical person • casual relation -- on the ground of Y's race: multiple discrimination, factual evidence. • Probably no need to proved element on motive, intention or knowledge. Legal definition to clarify this is desirable.

12. Who has the Burden of Proof? • Two possibilities: • P: Ordinary tort cases (seems to have been proposed under CP83) :– • Y has the burden. • i.e. Y has to prove that Y's story to be more likely than X's • Q: In accordance to the EU Race Directives and Burden of Proof Directive :-- • X has the burden. • i.e. X has to prove that Y's story to be more likely than Y's • Therefore: • Need to specify the burden of proof in the law. • Alternative Q should be adopted. • I.e. the standards in EU Race Directives and Burden of Proof Directive should be adopted.

13. Definition of a "Person": • What is a "Person"? • Does a "Person" cover a discriminator? • Does a "Person" cover a victim? • Does a "Person" include a legal person? • Does a "Person" include different kinds of organizations? • Does a "Person" include a state organ? • Should a "Person” be protected / caught by extraterritorial jurisdiction? • Not explicitly defined in the CP. Need to be explicitly defined in the new law.

14. Definition of a "Person": • Based on • ICERD, • the Interpretation and General Clauses Ordinance, and • the stated objective of the CP (save on the part on protected areas of activity concerning the Government and some of the exclusions): • the definition should be as inclusive as possible.

15. Definition of a "Person": • An inclusive definition should at least include: • Individuals and all kinds of organisations, incorporated or not, • Natural and legal persons, and • The HKSAR Government. • But the CP does not propose to bind the Central People's Government and Mainland governmental bodies. None of the existing discrimination legislation covers them.

16. Indirect Discrimination -- Definition • Under the Bill, it is proposed, “a person (X) should be regarded as indirectly discriminating against another person (Y) if he (X) applies to that other person (Y) a requirement or condition which he applies or would apply to persons not of the same racial or ethnic group as that other person but- • which is such that the proportion of persons of the same racial or ethnic group as that other person who can comply with it is considerably smaller than the proportion of persons not of that racial or ethnic group who can comply with it; • which he cannot show to be justifiable irrespective of the race, colour, descent, or national or ethnic origin of the person to whom it is applied; and • which is to the detriment of that other person because he cannot comply with it.” (CP36)

17. Stages of proving indirect discrimination • The victim's (Y's) needs to identify and prove • Y's race • a requirement or condition • applied to him (Y) by the discriminator (X) • he (Y) cannot comply with it • determent to him (Y) as a result • a considerably lower proportion of persons of his (Y's) race can comply with it • If there is a prima facie case, the defendant (X) has a case to answer. Then after X's answer, taking into the evidence adduced by both sides, the court need to decide, based on a standard of "on the balance of probability" (whose story is more likely to be true) and on who has the burden of the proof, whether there was racial discrimination.

18. Difficulties in proving indirect discrimination • "requirement or condition" • At English common law, informal practices may not be included. • If a criterion is not absolute (like "knowledge of Chinese preferred") then it is not a "requirement or condition" within the meaning of the RRA. • Therefore, the term "provision, criterion or practice" should be adopted in the law in line with the Race Directive to overcome the old narrow interpretation associated with the old terms.

19. Difficulties in proving indirect discrimination • "considerably smaller proportion": • statistics are difficult to come by • At English common law, a case can only be brought after harms are done. • Therefore, • the concept should be replaced by "would put persons of a racial or ethnic origin at a particular disadvantage" in the law in line with the Race Directive. • This will make statistics some time unnecessary. • It will also enable some cases to be brought before harms are actually done or when the harms done are still not serious.

20. Difficulties in proving indirect discrimination • "detriment" • At English common law, a mixed test is usually used: • An objective test is used to reject the victim's case blaming him to be too sensitive • A subjective to reject a firm victim's case saying that he was not actually hurt • Therefore, an objective test within specified limits should be adopted in the law in line with the Race Directive which seems to be a fairer test (but there is a school of view that a subjective test will require a lower standard to protect the weakest.)

21. Difficulties in proving indirect discrimination • "justification": • pre-existing Ordinances and subsidiary legislation will be used to justify discrimination (see SDO & CP58 & 68). • Discriminatory legal provisions (including subsidiary ones), justified or not according to international standards, are entrenched. • Thereby re-affirming institutional discrimination and defeat the very purpose of indirect discrimination provisions. • Therefore, • Pre-existing Ordinances and subsidiary legislation can only be used as justification if they are justified themselves. • So there should not be such a category of justification by pre-existing Ordinances and subsidiary legislation or the justification should be further qualified to narrow its scope to those really justified ones in accordance to international human rights standards.

22. Redefining indirect discrimination: • A new definition based on the following one provided in Article 2(b) Race Directive of the European Commission should be adopt : • "indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

23. Transferred racial discrimination • – discrimination transferred to him due to other's race or similar grounds. • Third category of racial discrimination in the CP to be outlawed: "discrimination on the basis of the race or ethnic origin of the spouse or a relative of a person" (CP34) • If a salesman is sacked for having served an Indian contrary to an instruction of his racist supervisor not to serve any non-white customers, he suffers from transferred racial discrimination. However, the restriction in CP34 excludes him from the protection of the new law because the customer is not his "spouse or a relative".

24. Transferred discrimination • The restriction is inconsistent with ICERD. • Article 1(1) of ICERD: 'In this Convention, the term "racial discrimination" shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.‘ • As far as someone's right is adversely impaired on racial grounds, it is racial discrimination against which he should be protected. The proposed definition will prevent the law from protecting him.

25. Transferred discrimination • The restriction is inconsistent with the Government's stated policy. • The Government's stated policy in CP22(a): • "to eliminate and combat all forms of racial discrimination"

26. Transferred discrimination • Comments: • The concept should widen to include: • any person he related to him or not, • at least those related to the person by blood, marriage, adoption or affinity (s. 2, FSDO), and • "associate" (c.f. ss.2 & 5, DDO), which consists of • any relatives or carers of the person; • [any person cared by the person;] • any person who is living with the person on a genuine domestic basis; and • another person who is in a business, [education,] sporting or recreational relationship with the person.

27. Victimization (CP38) • Problem: • Do not protect those whose complaints fail. • Suggestion: • The protection should be extended to person whose complaint was rejected by the court as false if the complaints had been made in good faith.

28. Victimization (CP38) • Problem: • The coexistence of casual test and motive test based on subsequent event like withholding reference to preserve legal position leads to confusion. Motive test reduces the protection to a victim. • Suggestions: • The law should make a choice between the two. • The casual test is preferred.

29. Racial harassment • Definition unclear based on CP39-41). • Reference could be made to those corresponding definition of harassment in SDO & DDO.

30. Sexual harassment • Section 2(5) of SDO: "a person (howsoever described) sexually harasses a woman if- • the person- (i) makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to her; or (ii) engages in other unwelcome conduct of a sexual nature in relation to her, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that she would be offended, humiliated or intimidated; or • the person, alone or together with other persons, engages in conduct of a sexual nature which creates a sexually hostile or intimidating work environment for her. • Note: An independent arm on "sexually hostile or intimidating work environment" is provided for in SDO.

31. Disability harassment • Section 2(6) of DDO: "a person (howsoever described) harasses another person if that first-mentioned person engages in unwelcome conduct (which may include an oral or written statement) on account of that second-mentioned person's disability, or on account of the disability of an associate of that second-mentioned person, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the second-mentioned person would be offended, humiliated or intimidated by that conduct. • Note: "Transferred harassment" is provided for and the concept of "associate" is included in DDO.

32. Racial harassment • Definition in the prospective law should include the positive features provided in the harassment definitions in SDO & DDO: • An independent arm on "hostile or intimidating work environment" (SDO). • "Transferred harassment" is provided for and the concept of "associate" (DDO).

33. Racial harassment • CP39 states: "It is proposed that a person (the harasser) harasses another person (the person harassed) if the harasser engages in unwelcome or unwanted conduct (which may include verbal abuse or hate mail) on account of the racial or ethnic background of the person harassed in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated by that conduct. An example of racial harassment is that if a person frequently makes racist remarks against an Indian colleague at work in order to humiliate or intimidate him. It is proposed that the Bill should make unlawful racial harassment in the protected areas of activity."

34. A very restrictive definition of Racial harassment in CP39 ? • Comments: • This definition found in fact denies the positive elements found in the corresponding definition in SDO and DDO: • This definition spelt out in the first sentence in CP39 resembles closely with the one in DDO except that "transferred harassment" has been removed. • The definition has also failed to include an independent arm of "hostile or intimidating work environment". However, the word "frequently" in the second sentence in CP39 seems to fit more with an "hostile or intimidating work environment" arm. • The positive aspect of the definition in CP39 is that the definition includes an objective test making the proof of intention and actual knowledge unnecessary.

35. Racial harassment only restricted to protected areas of activity • Unfortunately, there are gaps in the protected areas of activity in the SDO and DDO. Such gaps, like those found in SDO in respect of service and goods providers, in clubs and between tenants and subtenants, should be filled or avoided in the racial discrimination legislation.

36. Vilification and Serious vilification -- Inadequate definitions (CP42-43) • Problems: • Definitions include only damages to premises or property but not injury to person. Even though a victim may still seek justice relying on other torts involving personal injury, he will be deprived of the assistance by EOC or a racial equality commission. • No "transferred vilification" is provided for (e.g. incitement of hatred toward a teacher of ethnic minority children not covered).

37. Defective protected areas of activity -- Employment (CP45-50) • The proposed law protects employees from racial discrimination in the work place but only against discrimination by the employers or their agents, probably not discrimination by their customers or certain players (e.g. visitors and family members of employers or other employees) in the work place. • Suggestion: A more comprehensive protection is needed in the new law.

38. Defective protected areas of activity -- Housing • Housing has not been explicitly spelt out but inferred from CP44(c) and CP52. • There is no protection for a sub-tenant being racially discriminated by a tenant in respect of small dwellings. • Suggestions: • Housing should form a separate area of protected activity with details specified in the law. • The ground to exempt racial discrimination in housing is unjustified and too wide. No exclusion should be allowed here. UK has removed all exclusions in respect of housing.

39. Defective protected areas of activity -- Education • School’s liability in protecting students (CP51) • Problem: • There is no protection of students against racial harassment by other students or their parents. • Suggestion: • Such protection such be provided for. The school should be held responsible for allowing this to happen or for not prevent a racially hostile environment from developing.

40. Nature of key enforcement body • EOC will probably undertake the responsibilities in relation to the new racial discrimination law. • Suggestions: • An independent statutory human rights commission formed and operating in line with the Paris Principles should be set up to enforce such kinds of laws. • Entrusting to EOC should only be a temporary arrangement provided that the Government should refrain from undermining the independence and credibility of EOC whether by way of appointment or otherwise.

41. Government’s statutory positive duty • The law should be enacted with provisions to cover the two missing obligations: • The Government and public authorities should be under a positive duty to combat discrimination, to promote racial equality and racial harmony (c.f. RRA, s.71) • The Government should be required to monitor closely the situation by keeping of statistics and conducting survey, to perform impact assessment exercise, to work for race mainstreaming, and to formulate and implement plan of actions for racial equality.