[Archive] At the Legislative Council on the Resumption of the Second Reading Debate of the Boilers & Pressure Vessels (Amendment) Bill 2001

Madam President,

The Boilers and Pressure Vessels (Amendment) Bill 2001 was introduced into the Legislative Council on 9 May 2001 with the aim of removing the ambiguities in the Boilers and Pressure Vessels Ordinance and the Boilers and Pressure Vessels Regulations.

2. I am grateful to the Honourable Cyd HO and other members of the Bills Committee for their detailed scrutiny of and constructive comments on the Bill. Taking heed of members' suggestions in the Bills Committee, I shall move several amendments to the Bill at the Committee stage to refine our legislative proposals.

3. The Boilers and Pressure Vessels Ordinance, enacted in 1962, controls the safe use and operation of boilers and pressure vessels. It requires, among other things, boilers and steam receivers within its coverage to be operated under the direct supervision of a "competent person", who should possess a certificate of competency issued by the Boilers and Pressure Vessels Authority (the Authority).

4. In 1997, when the proposals for reviewing fees and charges under the Ordinance were examined by the then Legislative Council, ambiguities were identified in the provisions relating to the fee-charging arrangements and the Administration undertook to conduct a review, which resulted in the Bill which is now in front of Members.

5. The Bill seeks to clarify the different fee-charging and refund arrangements. It also clarifies the existing provisions in regard to the issue, endorsement and revocation of certificates, and expressly empowers the Authority to conduct examinations for the issue or endorsement of a certificate of competency. Another proposal of the Bill is to establish an appeal channel for persons aggrieved by administrative decisions in relation to the issue, endorsement or revocation of certificates under the Ordinance.

6. During the deliberations of the Bills Committee, members have raised concern about the proposed provisions which give express powers to the Authority to make rules in relation to examinations conducted for the issue or endorsement of certificates and that such rules are not subsidiary legislation. According to section 3 of the Interpretation and General Clauses Ordinance (Cap. 1), "subsidiary legislation" is defined as "any proclamation, rule, regulation, order, resolution, notice, rule of court, bylaw or other instrument made under or by virtue of any Ordinance and having legislative effect". Hence, the test for determining whether certain rules made by the Authority under powers conferred by ordinances are subsidiary legislation is whether the rules carry any legislative effect. Following the discussion by the Panel on Constitutional Affairs in 1999, the Administration has undertaken to include, where necessary, an express provision in any new legislation to make it abundantly clear whether a statutory instrument is subsidiary legislation. The purpose of doing so is to avoid unnecessary dispute over the legal nature of the relevant instrument. Iunderstand that Members will raise this issue for further discussion at the relevant panel of the Legislative Council. I believe that this issue will be adequately addressed in that forum. Since the rules are intended to cover administrative arrangements for examinations and do not have any legislative effect, Members suggested that the provisions be deleted from the Bill. We agree that the provisions are not absolutely necessary as such power can be deemed to be conferred on the Authority by virtue of section 40(1) of Cap. 1. I shall, therefore, move an amendment to delete these provisions.

7. The proposed amendments in the Bill are basically technical in nature and do not impose any additional statutory duties upon the stakeholders. We, therefore, propose that the Bill, once enacted, should come into operation with immediate effect.

8. I shall introduce several other amendments to the Bill, and explain the reasons for these amendments at the Committee stage. Madam President, I hope that Members will support the Boilers and Pressure Vessels (Amendment) Bill 2001 and the amendments to be moved by me later at the Committee stage.

9. Thank you, Madam President.

SECRETARY FOR EDUCATION AND MANPOWER: Madam Chairman, I move the amendments to the clauses read out just now as set out in the paper circularized to Members.

Clauses 2(a), 2(b) and 2(c) of the Bill set out the grounds on which the Boilers and Pressure Vessels Authority (the Authority) may issue, endorse or revoke a certificate. The clauses as presently worded require the applicant to be a fit and proper or suitable person and in possession of substantial experience, skill and knowledge. The proposed amendment is to remove the reference to "fit and proper" and "suitable" in the Bill, and to prescribe more clearly our policy intention that experience, skill and knowledge are the only attributes that are required by statute.

Clause 2(d) of the Bill gives express authorization to the Authority to conduct examinations for the issue and endorsement of certificates and make rules governing the conduct of examinations, and that such rules are not subsidiary legislation. Having examined this clause, we have come to the view that since the Bill provides the Authority with the powers to conduct examinations, related powers to decide on the administrative arrangements for the conduct of examinations will be deemed to be conferred on the Authority by virtue of section 40(1) of the Interpretation and General Clauses Ordinance. But to put beyond doubt the powers of the Authority to review examination results, we propose to include an express provision to this effect while we delete the provisions that empower the Authority to make rules.

During the deliberations of the Bills Committee, members also considered the existing deemed revocation provision under section 6(4)(b) of the Boilers and Pressure Vessels Ordinance. The provision provides that the certificate of competency shall be deemed to have been revoked if the certificate holder has not, for fours years or more, been engaged in the operation of the class or type of boilers or steam receivers specified in the certificate. Members are concerned that it would be difficult for employers to verify the past service of a certificate holder. Having considered members' view as well as the fact that the provision has never been invoked in the past, we propose to delete the deemed revocation provision from the Ordinance.

Clause 7 of the Bill provides for consequential amendments to the Schedule to the Administrative Appeals Board Ordinance (Cap. 442). The proposed amendments are simply consequential to the proposed amendments to clause 2 that I have just mentioned.

All the above amendments represent the consensus reached between the Administration and the Bills Committee. I hope that Members will support and pass these amendments. Thank you, Madam Chairman.

SECRETARY FOR EDUCATION AND MANPOWER: Madam Chairman, I move that the new clause 2A read out just now as set out in the paper circularized to Members be read the Second time. Members have already passed an amendment to clause 2 which is to delete the deemed revocation provision of the Ordinance. This new clause is added to provide for consequential amendments to the related section in the Ordinance.

SECRETARY FOR EDUCATION AND MANPOWER: Madam Chairman, I move that new clause 2A be added to the Bill.

SECRETARY FOR EDUCATION AND MANPOWER: Madam President, the

Boilers and Pressure Vessels (Amendment) Bill 2001

has passed through Committee with amendments. I move that this Bill be read the Third time and do pass.