CLAUSE
16
16(4) & 23(1)
17(4) & (5)
18(4)
19(1) & 20(4)
REMARKS
In the UK Act the Government department or authority concerned must be given the opportunity to comment on any allegation in the complaint. It is important to provide this opportunity since the Commissioner might otherwise waste his time on complaints which he might well decide to disregard if he was aware of the background. Clauses 16(4) and 22(3) of the Hong Kong Bill do not go far enough.
Should the Commissioner, in the course of investigation, uncover oriminal acts or omissions, is it envisaged that he would then refer the case to the Police for further investigation without making a roport? If so, then there would need to be a rider to the requirement that he should advise an officer of adverse criticism in cases which appear to involve possible criminal action, so that the person concerned would not be forewarned.
Presumably this is adequate safeguard for e.g. C.I.R. but it may be as well to check. It may also be necessary to consider whether there are any other special cases where sccrecy needs to be maintained. For example, the oaths of members of Executive Council are over-riding, but the Bill does not mention this, which could be awkward for a Head of Department who is also a member of the Council. Possibly the protection afforded by clause 19(1)(c) will suffice?
What is the position of material exchanged between Government and: the Legal Department, where they stand in client/solicitor relationship? Such exchanges are absolutely "privileged" even in a Court. While the security of the Commissioner and his staff is a safeguard, such evidence, if permitted, ought not to be given in the presence of the complainant or other witnesses. Such material does not appear to be protected by clause 19(1).
This could have considerable financial implications.
May not afford wide enough protection against the disclosure of papers. In the U.K. Parliamentary Commissioner Act, a Minister of the Crown may give notice in writing to the Commissioner that the disclosure of any document or clase of document would be contrary to the public interest; the Commissioner isnot then authorised to communicate its comments to any person or for any purpose.
In Hong Kong it is suggested that such decisions should be taken by the Colonial Secretary or the Deputy Colonial Secretary: and (since several cases per week may arise) there may in addition be a need for some other senior officers with "ministerial" functions to be able to prevent disclosure to the Commissioner. (It is felt that this is an administrative decision, not a legal one.)
The Defence Secretary has minuted as follows:
"I am not happy about these provisions, and further clarification is required. Section 19(1) relates to the production of papers, not I think to a decision that a case is not subject to investigation. You may have a case under investigation and the A.G. says that you
/can't.....
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