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What Publishers and Journalists need to know
about Article 23 legislation
- a statement by the Solicitor General, Mr Bob Allcock,
at a luncheon at the Foreign Correspondent's Club, Hong Kong,
on 3 June 2003
| 1. |
Those of you who have heard me before will not be surprised
by my message today - that publishers and journalists have
nothing to fear about the proposed Article 23 legislation.
|
| 2. |
Since the offences relating to sedition and official secrets
are the main focus of media concern, I will concentrate on those
two areas.
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| 3. |
However, rather than repeat what I have said on previous occasions,
I propose to quote what the distinguished academic, Professor Albert
Chen of the University of Hong Kong has recently written. [see annex] |
| Misconceptions |
| 4. |
I think it is fair to say that there have been more myths and
misconceptions generated by this legislative exercise than any other
in recent history. This week a number of misconceptions have been
repeated, and I would like to explain the true position.
| (1) |
Reference has been made to "the new proposed offence
of unauthorized and damaging disclosure of information".
The offence of making an unauthorized and damaging disclosure
of protected information is not "new". It has applied
in Hong Kong since 1992. Before then, an even stricter regime
applied under the former Official Secrets Act. The offence
has not had a "chilling effect" in the media and
there is no reason to believe that its continued application
will do so. |
| (2) |
It has been said that "someone could be prosecuted
solely for possessing so-called unauthorized information".
It is not proposed to create an offence of "possessing unauthorized information". The offence will remain
that of making an unauthorized and damaging disclosure of
protected
information.
|
| (3) |
Contrary to what has been suggested, the proposed new
category of protected information does not apply to any information
regarding relations between the Central Authorities and the
HKSAR. It is limited to information relating to affairs concerning
the HKSAR which are, under the Basic Law, within the responsibility
of the Central Authorities. And the unauthorized disclosure
of such information would only be an offence if -
| (a) |
it had first been the subject of an unauthorized
disclosure by a Hong Kong public servant; or
|
| (b) |
it had been obtained by means of illegal access,
which is defined by reference to certain offences under
Hong Kong law. |
|
| (4) |
It has been stated that no journalist could safely use "unauthorized
information" without meeting an unrealistic standard
of proof. Journalists are not subject to any standard of
proof that will prevent them from disclosing protected information.
If a journalist does in fact make an unauthorized and damaging
disclosure of protected information, the onus will be on
the prosecution to prove that the journalist knew, or had
reasonable grounds to believe -
| (a) |
that it was protected information; and
|
| (b) |
that it came into his possession as a result
of an unauthorized disclosure by a Hong Kong public servant,
or by illegal access (i.e. an offence under Hong Kong
law). |
|
| (5) |
Reference has been made to "the proposed new offence
of handling seditious publications" which may "encourage
self-censorship". The offence is not new, but has existed
under our law for decades. What the Bill does is to considerably
narrow the scope of the offence. I fail to see how that can
encourage self-censorship. |
|
| Public interest defence |
| 5. |
I am aware that media organizations have been pressing for a
public interest defence in respect of unauthorized disclosure. |
| 6. |
The Administration has produced a paper for the Bills Committee
setting out why it considers that such a defence is unnecessary.
In a nutshell, our argument is that the requirement that the disclosure
must be "damaging", as defined in the Official Secrets
Ordinance, means that an offence is committed only where it is in
the public interest to prevent disclosure. For example, disclosure
of certain protected information is an offence if it endangers, or
would be likely to endanger, the safeguarding of the territorial
integrity or independence of the PRC. The Administration cannot see
how it can ever be in the public interest to make a disclosure that
is damaging in that way. |
| 7. |
Some critics refer to a precedent for a public interest defence
in the Prevention of Bribery Ordinance. However, that relates to
a disclosure offence that does not have any damaging test. The two
offences are therefore quite different. |
| The Process |
| 8. |
Before I finish, I would like to say something about the legislative
process. There has been some criticism that this is being rushed.
In my view, the Bills Committee is doing a commendable job in scrutinizing
the Bill in great detail. Each meeting with the Administration last
either 3½ or 4 hours. There have so far been 13 full meetings
with the Administration. In addition, there have been four public
meetings (of 3 hours each), when more than one hundred NGOs and other
interested parties made submissions to the Bills Committee. |
| 9. |
So far, the Bills Committee has been presented by the Administration
or LegCo Secretariat with 61 papers relating to the Bill. |
| 10. |
There is no doubt in my mind that all relevant concerns have
been identified by the Bills Committee and have been pursued with
vigour. By the time the Bills Committee completes its work I am sure
that it will have done a comprehensive and effective job. |
| 11. |
The Administration is now considering what amendments it proposes
to make to the Bill at the Committee Stage. It is expected that these
will be announced shortly. Whatever they are, I remain of the view
that members of the media have nothing to fear from this legislation. |
#67517 |
