XN000022-1985-06-26 — Page 18

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WEDNESDAY, JUNE 26, 1985

+LIKEWISE WITH CLAUSE 17(A) AND (B) WHICH PROVIDE THE PENALTY OF OFFENCES COMMITTED UNDER CLAUSE 13 THE ORDER MADE BY THE COUNCIL OR A COMMITTEE MUST BE LAWFUL AND THE QUESTION PUT BY THEM TO A WITNESS MUST BE 'LAWFUL' AND RELEVANT, SHE SAID.

MISS TAM SAID THIS AMENDMENT WOULD ACHIEVE THE OBJECTIVE OF SUBJECTING THE EXERCISE OF THE LEGISLATIVE COUNCIL'S HOUSE-KEEPING AND INVESTIGATORY POWERS TO THE COURT'S SCRUTINY.

IT WAS ALSO THE OVERRIDING CLAUSE UNDER WHICH THE WORDS +USAGE AND PRACTICE AND THE WORDS +RESOLUTION OF THE COUNCIL+ UNDER CLAUSE 15 MUST OPERATE, SHE ADDED.

MISS TAM SAID ONE OF THE COMMENTS MADE BY THE BAR ASSOCIATION AND THE LAW SOCIETY WAS THAT THE COMBINED EFFECT OF CLAUSES 15 AND 24 RESULTED IN AMBIGUITY.

IT WAS SAID THAT CLAUSE 24, WHICH OUSTS THE JURISDICTION OF THE COURTS WHERE THIS COUNCIL HAS EXERCISED ITS POWER +LAWFULLY+ GAVE RISE TO AMBIGUITY AS TO THE POWERS GIVEN TO THE COUNCIL TO DECIDE ON MATTERS OF PRIVILEGE UNDER CLAUSE 15.

+IN FACT, A CAREFUL READING OF BOTH CLAUSES REVEALS NO AMBIGUITY AND NO INHERENT INCONSISTENCY, SHE SAID.

CLAUSE 15 IS CONCERNED WITH RIGHTS RELATING TO MATTERS OF EVIDENCE. MISS TAM SAID THE INTENTION OF THIS CLAUSE WAS TO ENABLE UNUSUAL QUESTIONS, IF NO SPECIFIC PROVISION HAD BEEN MADE WHICH OFFERED A SOLUTION, TO BE RESOLVED BY LOOKING AT THE USAGE AND PRACTICE OF THE COUNCIL BOTH BEFORE AND AFTER ENACTMENT OF THE BILL.

+ IF A SITUATION SHOULD ARISE WHERE GUIDANCE IS NEEDED BY REFERENCE BACK TO THE PAST, IT IS ABUNDANTLY CLEAR THAT CLAUSE 15 WOULD NOT PERMIT THIS COUNCIL TO ACT. EVEN IF IT DESIRED TO DO SO WHICH IS MANIFESTLY UNLIKELY, ON SOME ALLEGED USAGE AND PRACTICE WHICH NEVER IN FACT EXISTED AT ANY TIME.

+ IF THIS COUNCIL SHOULD EVER SEE FIT TO ACT IN THAT FASHION, IT WOULD LEAVE ITSELF OPEN TO CHALLENGE IN THE COURTS ON THE BASIS THAT ITS ACTION WAS NOT 'LAWFUL' WITHIN THE MEANING OF CLAUSE 24, SHE SAID.

MISS TAM SAID THAT THIS WAS ONLY ONE EXAMPLE OF THE WAY CLAUSE 24 WAS INTENDED TO OPERATE, THOUGH OF COURSE IT APPLIED IN RELATION TO OTHER PROVISIONS AS WELL AS CLAUSE 15.

+THERE IS NO DEGREE OF AMBIGUITY ABOUT THOSE TWO CLAUSES AND THERE IS NO BASIS FOR THE COMMENT MADE IN THAT RESPECT, + SHE REITERATED.

CONCLUDING HER SPEECH, MISS TAM SAID ALTHOUGH TWO OUT OF 16 REPRESENTATIONS SUGGESTED THAT CLAUSE 24 SHOULD BE DELETED ALTOGETHER, UNOFFICIALS FELT THAT THE MORE PRACTICAL APPROACH AND THE MAJORITY VIEW ON THIS POINT SHOULD BE TAKEN AND CLAUSE 24 AMENDED ACCORDINGLY,

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