TNAG-1819-FCO40-2580-Public-opinion-in-Hong-Kong-Commissioner-for-Administrative--1988 — Page 172

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COMMISSIONER FOR ADMINISTRATIVE COMPLAINTS BILL 1988

16. Clause 12 empowers the Commissioner to require information and documents to be produced to him. He may summon complainants and others as witnesses and examine them on oath. There is provision in clause 12(3) for persons prohibited by any law from disclosing official information (e.g. officers of the Inland Revenue Department) nevertheless to make disclosure to the Commissioner for the purposes of an investigation under the Bill.

17. Clause 13 gives witnesses the same protection as witnesses in a civil action in the Supreme Court. Except on a trial for perjury committed while giving evidence under the Ordinance, no evidence given in the course of any investigation under the Ordinance is admissible in any court or other proceedings.

18. Clause 13(3) empowers the Governor to certify that the giving of evidence might prejudice security, defence, or international relations, and the Chief Secretary to certify that evidence might prejudice the investigation of crime or might disclose the proceedings of Executive Council. In any such case, the Commissioner must not require evidence on these matters. Apart from this, the rule which provides for public interest privilege to be claimed for evidence or documents will not apply to any investigation (clause 13(1) ).

19.

Clause 14 requires the Commissioner and his staff to observe secrecy, save in so far as the Commissioner may decide that disclosure of information (unless it is the subject of a certificate under subclause (3)) is necessary in his report, to show the reasons for his conclusions.

20. Under clause 15 the Commissioner must report his opinion to the head of department affected, with his recommendations, if he considers that there is evidence of any breach of duty by any officers, or that a decision should be further considered, rectified, cancelled or varied, that any view of the law or any practice should be altered or reconsidered or that reasons should have been given or some other steps taken. The report may subsequently be sent to the Governor if not acted upon and the Commissioner may in the case of serious maladministration report to the Governor, so the report may be laid before the Council. By clause 16, the complainant, and the member of the Legislative Council who referred the complaint, must be told of the result of any investigation and of the Commissioner's recommendations.

21. Part VI deals with supplementary matters. By clause 17, publication of certain matters is absolutely privileged for the purposes of defamation actions. Clause 18 makes it clear that an investigation does not relieve a department of its normal duty to take action on a matter of complaint. Clause 19 gives a power of entry to the Commissioner, subject to safeguards where security considerations apply. Clause 20 enables the Commissioner to delegate his powers to members of his staff and he must delegate when he is personally interested in a matter. Clause 21 provides for him to present an annual report to the Governor, who shall lay it before the Legislative Council. Certain offences are listed in clause 22; these deal with obstruction of, or making false statements to, the Commissioner and similar conduct. Clause 23 enables the Governor in Council to amend Schedule 1 to make it conform to changes in, or additions to, the names or organization of government departments.