XN000022-1995-07-27 — Page 21

Coming into operation of the Ordinance

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Clause 1(2) provides for the Ordinance to come into operation on a day to be appointed by the Governor by notice in the Gazette. This is a traditional legislative provision. It is all the more surprising, therefore, that some Members are asking for the appointment of this day to be subject to a resolution of this Council. I must say I do not see any necessity for such an unusual provision which I understand would be without precedent in Hong Kong.

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Let me explain why. In practice, we would not want to, nor would we, bring the Ordinance into effect until the relevant items of subsidiary legislation were in place. As part of this process, we wish to see the early establishment of the MPF Schemes Authority so that it could be involved fully in the preparation of the necessary subsidiary legislation, as well as in the process of approving trustees and registering schemes. Nor would we be advising the Governor to introduce clause 6 of the legislation, requiring employers to arrange schemes for their employees, and the self-employed to make parallel arrangements, until the necessary legislation was in place. The provision in clause 6 are unenforceable in isolation. They require subsidiary legislation to be in place. Given that Members would need to be satisfied with the specific provisions of subsidiary legislation on which they would have been consulted in any case before these could be enacted by a positive resolution of this Council and on this I shall speak further in a moment I cannot understand the reasoning behind their demand.

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Some Members have pointed out that there is a precedent in the United Kingdom for the date of coming into operation of a piece of legislation to be subject to the prior approval of the legislature. That is so. The Easter Act 1928 does indeed make such a provision. I shall not speculate in this Council on the reasons for such a provision. What I shall point out, however, is that the legislation itself has never been brought into effect.

I cannot understand, Mr President, how it can be in the best interests of those who will benefit from this Bill to introduce such a provision. It seems to me that it could be used to delay its coming into operation indefinitely. I have no intention of changing the existing clause 1(2) of the Bill, and I urge Members not to support any amendments to do otherwise.

Even more disturbing is the suggestion that there should be a statutory provision linking the bringing into operation of the Ordinance with the implementation of related regulations and rules. This is objectionable. It introduces the element of uncertainty to the statutory power to commence that is contained in clause 1(2). If it was necessary to consider, on each occasion that it was proposed to use the power in clause 1(2), whether the related rules and regulations provided in clauses 44 and 45 had been made, we would be faced with a number of problems: