Reforming Hong Kong public sector law after Lam Siu Po and Rowse: some useful comparisons from Australian law

Abstract

The recent Hong Kong decisions of Rowse and Lam Siu Po have struck down as illegal certain longstanding policy provisions and black letter laws which effectively denied public servants any real right to be legally represented in civil service disciplinary proceedings. As a consequence of these decisions, Hong Kong public sector employment law is in need of reform, in order to ensure the necessary procedural fairness found lacking in those decisions. In such an exercise Australian law may provide some lessons. Recent Australian decisions and statutory law aims to facilitate a public sector system of employment which is both flexible for the government (and recognises its unique character) and also fair to employees. While these new laws, themselves, have shortcomings, they may nonetheless be seen as a baseline standard of fairness, especially since Australia does not have a Bill of Rights. In addition to that comparative analysis, this article considers criticisms, in both Hong Kong and Australian case law, of civil service investigative processes and how they can be improved.