XN000022-1996-11-27 — Page 25

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The provision for the Commissioner for Transport to amend the tolls by notice in the Gazette in both the Eastern Harbour Crossing Ordinance and Tate's Cairn Tunnel Ordinance is governed by the agreement between the Governor-in-Council and the Company or an award by arbitration under the Arbitration Ordinance. Although the gazetted notice is a subsidiary legislation and must therefore be laid before the Council in accordance with Section 34(1) of the Interpretation and General Clauses Ordinance, this Council can only amend it pursuant to Section 34(2) "in any manner whatsoever consistent with the power to make such subsidiary legislation". In other words, the limitations which apply to the Commissioner for Transport, who is the authority empowered to make this subsidiary legislation, would equally apply to this Council. The Commissioner has no discretion as to the terms of a tolls variation notice he is obliged to make it in accordance with either an agreement reached between the [tunnel] Company and the Governor-in-Council, or, in default of such agreement, the terms of an arbitral award. [The provision of an arbitration mechanism would clearly be nugatory if this Council could disturb its outcome.] The Legal Adviser to this Council has, in fact, come to the same conclusion.

To sum up, it has always been the administration's intention, from the time the Bills for the Eastern Harbour Crossing and the Tate's Cairn Tunnel were drafted, that variation of tolls would be by agreement between the Governor-in-Council and the Company or failing that by arbitration under Arbitration Ordinance which is final. This intention is reflected in the way the legislation is constructed. Its effect is to displace the operation of Section 34(2) which, like all other provisions of the Interpretation and General Clauses Ordinance, only applies "unless a contrary intention appears". Given that the statutory provisions governing toll variations are worded as they are the Administration's contractual commitments to the Company are enshrined in the legislation.

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