Hansard

Evidence Bill 2025

Second reading

Resumed from 29 May.

Hon Nick Goiran (Leader of the Opposition) (7:31 pm): I rise on behalf of the opposition as the lead speaker on this massive 492-clause bill. The bill before us consists of 12 parts and some 356 pages. Amongst other things, this bill seeks to repeal the Evidence Act 1906 and is said will introduce a modernised version of uniform evidence law into our state. It may interest members to know that this massive bill draws heavily on the New South Wales Evidence Act 1995 and the Commonwealth Evidence Act 1995, the current Western Australian Evidence Act 1906 plus new provisions that are not included in the model legislation. The bill also incorporates reforms recommended by law reform bodies and royal commissions, including the Royal Commission into Institutional Responses to Child Sexual Abuse. It is fair to say that the bill is the result of work with a long history, going as far back as 1979, when the Australian Law Reform Commission reviewed the law of evidence. Some eight years later, the Australian Law Reform Commission handed down its final report, recommending that Australia's jurisdictions adopt uniform evidence laws and it proposed model legislation. Since that time, the Commonwealth, New South Wales, Tasmania, Victoria, the Northern Territory and indeed the ACT have introduced uniform evidence laws.

At the outset, I indicate that the opposition supports this massive bill. However, there are key matters regarding parliamentary sovereignty that warrant examination. In particular, Henry VIII clauses have not been appropriately highlighted by the government in this matter despite previous recommendations from the Standing Committee on Uniform Legislation and Statutes Review.

It is also worth us considering the complexity in this matter regarding the bill's commencement. Thirdly, it is worth us considering the scope of the review clause that was found in the bill. Members may be aware that there is currently a supplementary notice paper with a couple of amendments standing in my name to address the latter of those issues.

Each of those three issues I have raised, whether the Henry VIII clauses, the complexity around the commencement clause or the review clause were originally raised by the Standing Committee on Uniform Legislation and Statutes Review when it was considering the predecessor to this bill in the last Parliament. We had two bills before the last Parliament. We had the Evidence Bill 2024 and the Evidence Amendment Bill 2024. The Standing Committee on Uniform Legislation and Statutes Review tabled its 150th report, and it made nine findings and four recommendations. It is reasonable to say that the government has certainly had the benefit of that report and could have implemented all those recommendations in this massive bill before us. Fortunately, the bill before us has been amended in comparison with the predecessor last year to amend some of these parliamentary sovereignty issues. I take the opportunity to draw to members' attention that the standing committee indicated it had a central concern about the 2024 bill and that central concern is set out at page 3 of that standing committee's 151st report, which was tabled this time last week. Paragraph 5.11 says:

The issue of central concern to the Committee when it considered the 2024 Bill was the extended application provided by clauses 3 and 15 that impinged Parliamentary sovereignty as it relates to parliamentary proceedings.

Paragraph 5.12 says:

The Committee notes that its prior concerns have now been allayed as the 2025 Bill has been amended in accordance with the Committee's recommendations.

That is pleasing to see. It is a shame that recommendation 4 of the committee in the previous Parliament has not yet been implemented in the bill before us. Hopefully, if we can agree on the matters on the supplementary notice paper, it will go some way to addressing that matter.

I now take the opportunity to briefly touch on the comparison between the bill before the house and the two bills in the last Parliament. As has been noted by the committee in this 151st report that was tabled on 12 August last week, the main difference between the 2025 bill and the 2024 bill is the inclusion of some additional clauses that were in part contained in the 2024 amendment bill. I will perhaps leave it to the parliamentary secretary in reply to the second reading debate on this bill to indicate the rationale of the government for having split the bills in the last Parliament, but I understand there was a desire to try to expedite the passage of the evidence laws as a package. Noting that some of these matters would have to go to the Standing Committee on Uniform Legislation and Statutes Review, yet also noting that some had appropriation elements, it was decided to have the appropriation dealt with in the other place while the standing committee was looking at the balance of matters in this house. Hence there were two bills to try to see the package expedited. That did not end up happening and now we have this amalgamated bill before us. It is fair to say that the bill before us largely mirrors the amalgamation of those two 2024 bills.

Apart from that, there are some other differences, including some consequential amendments in part 12 of the bill. The opposition has been advised that they are mostly technical and are mainly there to improve consistency between this bill and other acts. In addition, we have the preservation of some current rules regarding business records in property confiscation proceedings. It has been explained to the opposition that this is the result of feedback provided by the Office of the Director of Public Prosecutions. I flag at this early stage for the parliamentary secretary that the opposition would ideally like the government to table that feedback from the Office of the Director of Public Prosecutions. If there is a view that that is undesirable, perhaps that could be explained to the house and at least some form of summary—maybe a precis or synopsis—or further explanation could be provided about this feedback from the Office of the Director of Public Prosecutions. For instance, when did this feedback arise and what was the context for it that would justify these additional clauses dealing with property confiscation proceedings?

Moving on from that, I also note that there are other differences in the form of the removal of certain apparently relevant provisions that do not apply by virtue of the fact that we have not had committal hearings in Western Australia for the best part of two decades. In addition, there are some increased penalties concerning protected recordings. Again, I flag at this early stage that it would be desirable if the parliamentary secretary could provide a further explanation in his reply of what necessitated or gave rise to these increased penalties for protected recordings. In addition, there is the inclusion of a new provision recommended by the Australian Law Reform Commission in March this year in a report regarding sexual violence. As I understand it, clause 206 will exclude evidence relating to a complainant's sexual reputation and disposition, and protect witnesses in civil proceedings in which a witness is alleged to be a victim of sexual abuse or harassment. As I indicated earlier, at least one of the 2024 bills was referred to the Standing Committee on Uniform Legislation and Statutes Review, which resulted in its 150th report.

That said, what will the bill presently before us otherwise do? Perhaps the best way to describe that is to note that it will codify key evidentiary rules previously found only in common law. It includes significant reforms, particularly for vulnerable witnesses, including the following: ground rules hearings to manage the taking of evidence from those with communication needs; witness intermediary services to assist witnesses and the court; recorded statements being admissible as evidence-in-chief in certain trials involving family violence; and a simplification of evidentiary thresholds, replacing sufficient relevance with a more logical connection test.

As I say, this is a massive bill consisting of some 356 pages and 492 clauses. A third of those clauses set out a number of terms that are to be used in what will be the new package of evidence laws in our state. Two terms deal with the issue of credibility. I draw to the attention of members the definition on page 5 at line 21, which reads:

credibility, of a person who has made a representation that has been admitted in evidence —

(a) means the credibility of the representation; and

(b) includes the person's ability to observe or remember facts and events about which the person made the representation;

I will just repeat that. It:

(b) includes the person's ability to observe or remember facts and events about which the person made the representation;

Immediately underneath that at line 27, it states that credibility of a witness is as follows. It defines this term as:

(a) means the credibility of any part or all of the evidence of the witness; and

(b) includes the witness's ability to observe or remember facts and events about which the witness has given, is giving or is to give evidence;

This is a very important part of the bill dealing with the terms of credibility. It has material application in how cases are run before the courts. It reminds me very much of a case before the Federal Court of Australia some three years ago. It is quite a famous case. For the benefit of the record, the citation of the case is Palmer v McGowan (No 5) [2022] FCA 893. In that, we have the judgement of His Honour, Justice Lee, who made a number of findings on the credibility of witnesses, including the person's ability to observe or remember facts and events about which the person had made a reputation or in respect of matters that they had given or is giving, or to give evidence. By further explanation, I refer in particular to paragraph 140 of the judgement by Justice Lee in that case, in which he says as follows:

140 Mr McGowan is often required to field questions from journalists. Superficially, such engagements might be perceived as being similar to exchanges between a witness and cross-examiner in a courtroom. But there are many differences, including one critical distinction: in the courtroom, a witness cannot (or at least should not) avoid a question with an indirect answer. The witness is there on the cross-examiner's terms.

141 Mr McGowan was generally an impressive witness, but sometimes when he was pressed on aspects of his evidence, he did exhibit what might be described as the muscle memory of a questioned politician in being non-responsive.

The judgement goes on later at paragraph 145 to conclude His Honour's consideration of the credibility of Mr McGowan as a witness in this matter by saying:

Although I will address further aspects of Mr McGowan's evidence below, I consider that although Mr McGowan was sometimes non-responsive, he was otherwise generally candid in his evidence.

What then happens in this particular case is that His Honour, Justice Lee, then spends some time considering the credibility of another high-profile witness in this case. This particular witness's name was Mr Quigley. We see at the judgement at paragraph 146 that His Honour has this to say about the credibility of that witness:

146 Mr Quigley is the Attorney-General of Western Australia. Prior to his election in 2001, he was a barrister and solicitor having been admitted in 1975.

147 Regrettably, his evidence was both confused and confusing.

His Honour then goes on at paragraph 149 to say:

149 During cross-examination, however, Mr Quigley gave contradictory evidence … He accepted that what he had said in the interview was indeed to claim that he and Mr McGowan had engaged in a plan, but that the explanation he had given to the public on the radio about those tactics was "completely false" …

His Honour goes on later at paragraph 150 to say:

… He said in his oral evidence that he did not even know about the topic of registering the awards, at all, at the time he gave the interview … He insisted that what he had said in the interview, namely that such a "weakness" had been identified, and what had led to the preparation of the legislation, was "completely and utterly false … In doing so, he engagingly accepted that his version in the witness box was "truly spectacularly different" to what he had said at length and in detail in the interview with ABC Radio Perth … and repeatedly stressed that his evidence should be preferred because he was under oath …

His Honour then goes on to say at paragraph 151:

Then, on 8 April 2022, Mr Quigley was recalled.

At paragraph 152, he says:

With respect, Mr Quigley's second appearance in the witness box just added to the brume of his testimony. Even though his return was at his request, for the purpose of correcting "mistakes"

At paragraph 154, His Honour says:

With a degree of understatement, this evidence sits unhappily with the evidence given on 9 March to the effect that "he hadn't even turned his mind to registration" and "didn't even think about registration" of the awards at the time he gave his interview with ABC Radio Perth … Indeed, Mr Quigley was placed in the uncomfortable position of having to concede that part of the account he gave in the radio interview was not "completely and utterly false" – as he had asserted on 9 March – but was, in fact, "completely and utterly true" … In other respects, Mr Quigley's evidence was that he had no recollection of various matters, even though they were the subject of his original affidavit, his oral evidence on 9 March and/or his further evidence on 8 April …

Later, at paragraph 157, Justice Lee concludes his consideration about the credibility of the witness by saying:

Counsel for Mr McGowan conceded that "[i]f one were to try logically to reconcile [Mr Quigley's evidence], you would be utterly defeated", labelling it as "outright silly" … To similar effect, my comment at the time was that I considered Mr Quigley's evidence was not dishonest, but was "all over the shop" …

He goes on later to say:

It suffices to note that Mr Quigley was not a reliable historian of events.

… It follows that I do not consider it is safe to place any reliance upon Mr Quigley's evidence.

As I said, they are some excerpts from Justice Lee's decision in the Federal Court, some three years ago. I hope it is illustrative for members so they understand exactly how important the issue of credibility of witnesses is, as is found particularly at clause 3 of the bill, which deals with a person's ability to observe or remember facts and events about which the person made the representation and also includes the witness's ability to observe or remember facts and evidence about which the witness has given, is giving, or is to give evidence. Certainly, if I can say, the case with respect to Mr Quigley highlights that in particular.

I move to other concerns that I flagged earlier this evening, particularly the notion of Henry VIII clauses. Henry VIII clauses occur when an act of Parliament is able to be amended by subordinate legislation or some other executive action. The concern has always been that this shifts the lawmaking power from Parliament to the executive and erodes Parliament's sovereignty. The Standing Committee on Uniform Legislation and Statutes Review will be aware that it has had a long history of speaking about this matter and that it has recommended on more than one occasion that when a bill contains Henry VIII clauses, the minister responsible should clearly identify them in the explanatory memorandum and provide a rationale for it. This goes back as far back as 2010 in this house, some 15 years ago, when a report was published by the committee.

In the case of the bill before us, we can see that the committee has already found that the second reading speech and the explanatory memorandum did not identify any Henry VIII clauses or explain their effect, yet the Standing Committee on Uniform Legislation and Statutes Review has itself identified some of those clauses, including clauses 241(1), 253(1), 378(8), 412 and 383.

Those are five clauses that the committee has particularly drawn to our attention. It bears noting that in each of those instances, the committee has taken the opportunity to consider the arguments as to whether the Henry VIII clauses are justified, and in each instance it has found that they are. We thank the committee for undertaking that scrutiny work on behalf of the house. It is pretty clear that the inclusion of such clauses without clear justification undermines transparency and accountability in the legislative process. It is a good thing that we were obliged, under our standing orders, to send this bill to the Standing Committee on Uniform Legislation and Statutes Review—not all bills are—which then had the opportunity to pick this matter up. The opposition again implores the government to ensure that these matters are set out in second reading speeches and explanatory memoranda.

We have just finished debate on another matter in which we discussed the notion of Premier's circulars. Part of the justification for rescinding a particular Premier's circular was that at the time, the Premier of the day, Mr McGowan, was of the view that that practice was already well entrenched, so there was no need to continue with it. It may be the case that it is time for a Premier's circular to be drafted to deal with this matter; or, if one already exists, maybe it needs to be publicised more widely with respect to those who have responsibility for the drafting and creation of such legislation.

The committee's next concern deals with the issue of the complexity of the commencement provisions in the bill before us. The committee described the commencement provisions as complex. If members take the opportunity to look at clause 2, it provides that all provisions besides part 1 are to come into effect by proclamation. There is the possibility of different days being used to proclaim different parts, which means that different parts of the legislation could come into operation at different times. The committee already noted that such commencement clauses erode parliamentary sovereignty. Again, this is consistent with many reports from that committee. I know that the same point has been made consistently in reports over the last four years. In this instance, it is worth noting that the Attorney General has advised the committee, as I understand it, that it is intended that the implementation of the legislation will occur over an 18-month period. There will certainly need to be time for legal practitioners, police officers and others who have an obligation to be heavily involved in this legislation to be well across it as they embark upon this new regime; it is not something that can simply be done next week.

I turn to the third area of concern in respect of the review clause. As I have indicated, there is an amendment standing in my name on the supplementary notice paper. Clause 384 of this massive bill provides for a statutory review to take place on the fifth anniversary of the date on which that provision comes into operation. Members will recall what I just said about clause 2—that different provisions can commence at different times. The situation here is that, unlike in some other bills in which the commencement of the review clause is linked to a main operative provision elsewhere in the legislation, in this instance it is not linked to anything. It is simply captured by this global provision at clause 2(d) that will allow that clause, amongst others, to be proclaimed on a different day from any other clause. The point made repeatedly by the standing committee is that this could mean that the review clause, in and of itself—that is, clause 384—might never be proclaimed. It is useful that we are dealing with this bill straight after the Statutes (Repeals and Minor Amendments) Bill 2025, because several of the questions posed during Committee of the Whole on that bill dealt with the issue of unproclaimed legislation and whether certain provisions would be repealed. In this situation, without any amendment, it could be the case that this review clause will never see the light of day. I am sure that the government will say that that is not its intention. One might say that if that is not its intention, let us make sure that the clock starts to run on this review clause at the earliest possible opportunity.

In the 151st report, the standing committee said that the review should commence from the day on which the substantive provisions of the bill come into operation. As I said earlier, the Attorney General's response simply seems to be that we expect all these things to come into effect in 18 months time. It is not clear why we cannot provide greater certainty around the commencement of the review clause to avoid any doubt. As I say, ironically, the current drafting actually risks the review. If anything, even if it is left as it is and we are able to leave it with the government, it risks the review being conducted before the act has had enough time to properly evaluate its practical effect. It is for that reason—we will get to that in Committee of the Whole House—that I say that there should be, at the very least, a review done after five years and a second review done after 10 years. This will then put to bed any argument from the government or anywhere else that if we do a review after five years, and maybe time has begun to run earlier that there has been insufficient time to properly consider the operation of the matter, in any event, there will be a second review at the 10-year mark.

With respect to the issue of stakeholder support and consultation, it is fair to say that the government has consulted with a large number of stakeholders on this matter. As I understand it, that consultation process was almost exclusively done in respect of the 2024 bills that were mentioned earlier. I am not aware of any fresh consultation occurring with this 2025 bill. In fairness to the government, given how much of this bill before us mirrors the bill from last year, it would not be necessary to embark upon a fresh round of consultation, but I will give early notice to the parliamentary secretary that when we do go into Committee of the Whole, it will be important to have some kind of explanation from the government about those provisions that are different—those new provisions that have come in. An example was the one I spoke about earlier with regard to the Office of the Director of Public Prosecutions. For those particular new provisions that were not there in 2024, what was the consultation process? It is also fair to say that there is broad support for modernising Western Australia's evidence laws. Indeed, the Law Society of Western Australia has been advocating for uniform evidence legislation for the best part of 15 years. In my view, there is no reason to oppose a bill that largely mirrors evidence laws in other jurisdictions and has broad stakeholder support.

In conclusion, the opposition is satisfied that the bill before the house will simplify the evidence law in our state and bring Western Australia into line with the rest of the jurisdictions in our nation. In addition, it will provide some improvements and protections for vulnerable witnesses. Some will say that this is long overdue, and I have no reason to dissent from that view. The process has been a long time in coming. As I indicated earlier, some of the history of this goes back as far as the model legislation produced by the Australian Law Reform Commission in 1987. We now have the benefit of having been able to observe much of this legislation operate in other jurisdictions, particularly New South Wales, for the last 30 years.

Nevertheless, we note the points that have been made by the Standing Committee on Uniform Legislation and Statutes Review. We thank it for its work. We will seek the support of the government or, alternatively—or in addition—other members for the matters on the supplementary notice paper, particularly to amend the review clause so that it is in line with the fourth recommendation of the standing committee in its 150th report to support an additional review period to ensure that the practical effect of this bill can be sufficiently considered.

Hon Pierre Yang (Parliamentary Secretary) (8:05 pm): Thank you, Acting President, for the rare opportunity to make a second reading contribution. It gives me great pleasure to say a few words about the Evidence Bill 2025. What I have in my hands is a copy of the Evidence Bill 2025. For the understanding of those who are listening to the recording of today's proceedings, it is a pretty thick bill. It has a total of 355 pages. The intent of the Evidence Bill 2025 is to completely overhaul the evidence law framework in Western Australia. It will introduce a version of uniform evidence law to the state of Western Australia based on the Commonwealth legislation.

Obviously, we have heard from Hon Nick Goiran, the Leader of the Opposition, whom I have had the pleasure of serving with since I came to this place in 2017. As I mentioned in my previous contribution earlier today, Hon Nick Goiran and I served on the Standing Committee on Legislation in the 40th Parliament between 2017 and 2021. During that period, we looked at quite a number of bills that were referred to the Standing Committee on Legislation. I recall that in the twilight days of the 40th Parliament, the house was still referring bills to the legislation committee and we were looking at bills nonstop, supported by the able committee staff and clerks.

Of course, this bill was referred to the Standing Committee on Uniform Legislation and Statutes Review. I have here the 151st report of the uniform legislation committee. The committee took the opportunity during the winter recess to investigate and review the bill and deliberate on the content of the report, which was tabled this time last week by the Chair of the Standing Committee on Uniform Legislation and Statutes Review, Hon Dr Steve Thomas. The winter recess was not a time for a break for the uniform legislation committee. We looked at two other bills at the same time, one of which was the omnibus bill that has since successfully passed through this house and now been sent to the other place. No doubt Hon Dan Caddy, the honourable parliamentary secretary who had carriage of that bill, will speak to the Attorney General in the other place about the speedy passage of the omnibus bill. Hopefully, we will see that bill come into effect in due course.

I come back to the Evidence Bill. The executive summary of the 151st report states:

The Evidence Bill 2025 … proposes to introduce a version of the Uniform Evidence Law in Western Australia. The law introduced by the 2025 Bill is drawn from the current Evidence Act 1906 (WA), Evidence Act 1995 (Cth), Evidence Act 1995 (NSW), and also contains new clauses unique to the 2025 Bill.

As we have heard from Hon Nick Goiran during his contribution, the Standing Committee on Uniform Legislation and Statutes Review in the last term of Parliament also considered the Evidence Bill 2024. What I have here in my hand is a copy of report 150 of the uniform legislation committee and its determination on the Evidence Bill 2024. What I plan to do is spend a bit of time looking at these two reports and, of course, at the Evidence Bill 2025, which is the centre of my contribution today.

I practised law in Western Australia from roughly 2007 to the time that I was elected to this place in 2017. The majority of my practice was in general practice, a fair bit of family law, a bit of commercial-related cases and a small number of criminal cases. From time to time, I had to rely on the EvidenceAct 1906 during my time of practice. I must confess that, as a lawyer practising in the field, I am not an expert on the Evidence Act; however, I am extraordinarily pleased to see that Western Australia is now taking steps towards modernising our evidence legislative framework. This 355-page bill will bring Western Australia into the next stage of the evidence laws and bring us in line with many other jurisdictions in our Commonwealth, including the federal sphere.

As the parliamentary secretary, my good friend Hon Dan Caddy, stated in his second reading speech, the Evidence Bill 2025 is aimed to repeal the EvidenceAct 1906. I am skipping half of that sentence and will continue by saying that this bill combines the provision of the previous bill, the 2025 bill, and the Evidence Amendment Bill 2024, which was introduced last year but lapsed on the prorogation of the last Parliament. The bill also implements the recommendations of the Standing Committee on Uniform Legislation and Statutes Review. That is in reference to the 150th report. This bill represents the most significant reform to Western Australia's evidence laws since 1906.

I want to pause here to say that the current legislative framework has been around for almost 100 years. In that sense, this chamber was built in 1904. This building has stood for more than 121 years and the Evidence Act 1906 has been the foundation of the evidence laws in Western Australia for more than 100 years. It is time that we modernised our Evidence Act, and I am pleased to see that the government is taking this very important step by introducing the rather significant and bulky Evidence Bill 2025 to this place.

I wish to continue by referring to the second reading speech of the parliamentary secretary to the Attorney General, Hon Dan Caddy, who said:

In line with the government's commitment to support victim-survivors of family violence, the bill introduces several important reforms and protections that will improve the process of giving evidence for children, family violence victims and other witnesses. These reforms are aimed at ensuring that the experience of giving evidence is less traumatic and that a witness's evidence is as complete, accurate and coherent as possible. The bill will also implement recommendations from the reports and recommendations of bodies such as the Royal Commission into Institutional Responses to Child Sexual Abuse and will bring evidence law in Western Australia into line with best practice. Importantly, the bill will preserve some provisions from the current Evidence Act in order to appropriately recognise Western Australia's unique local circumstances and conventions.

The parliamentary secretary then referred to the concept of when uniform laws began, and when the Australian Law Reform Commission conducted a significant and comprehensive review of the law of evidence, commencing in 1979. The commission's final report into it was established in 1987. In that report, it was recommended that Australian jurisdictions adopt uniform evidence laws and propose model legislation so that there would be no significant differentiation in evidence law across all jurisdictions. We live in the Commonwealth. It is important that, when appropriate, we should have similar laws for all Australians; however, at the same time, we must recognise that we are also a Federation. Each state has its own sovereignty and we must respect that. That is why the Evidence Bill 2025 represents an attempt at modernisation while at the same time preserving our Western Australian uniqueness in our evidence laws.

New South Wales was the second jurisdiction after the Commonwealth to adopt model legislation. It was followed by Tasmania in 2001; Victoria in 2008; the Australian Capital Territory in 2011; the Northern Territory in the same year, 2011; and Norfolk Island in 2004.

The parliamentary secretary stated:

The bill before the house substantially aligns with the uniform evidence law that is in place in those jurisdictions.

The advantages of the uniform evidence law include introducing a comprehensive, internally consistent scheme with an overriding policy framework; adopting various improvements to the law of evidence, including hearsay evidence and documents; and ensuring that there is one set of evidence laws that apply in Western Australian state courts and courts in Western Australia exercising federal jurisdiction. Under uniform evidence law, the rules of evidence are primarily found in statute rather than in case law. Adopting a version of the uniform evidence law will make the law more easily accessible and comprehensible and will reduce complexity in court proceedings.

I think we can also add that it will make a lawyer's life a little less complex if the same type of evidence law applies to both state and federal cases, in state jurisdictions.

Obviously, I am the Deputy Chair—not the Chair yet; maybe one day!—of the Standing Committee on Uniform Legislation and Statutes Review. As I mentioned in my previous contribution—

Hon Klara Andric: That's an aspiration.

Hon Pierre Yang: Yes. As I said earlier, I was traumatised when I missed out on a spot on the uniform legislation committee. I had a great time working with Hon Michael Mischin.

Hon Kate Doust: You need to get a life, member!

Hon Pierre Yang: This is my life! I had a great time working with Hon Michael Mischin, Hon Laurie Graham and Hon Robin Scott on the uniform legislation committee in 2017 and 2021. We all know that Hon Michael Mischin served as the Attorney General and the Minister for Commerce and held many other portfolios during his time in Parliament. He was from the Liberal Party. Hon Laurie Graham, a living legend from Geraldton, served in Parliament and also on the uniform legislation committee, and I had the honour of having him as my Deputy Whip when I was the government Whip during the 41st Parliament. Hon Robin Scott was a member of the One Nation party. When we were working together on the Standing Committee on Uniform Legislation and Statutes Review, we put aside our political differences and looked at the concept and rationale of uniform laws—the essence of what we needed to apply in the uniform legislation committee for bills that were referred to us. That was a great experience. We were working across parties.

For the uniform legislation committee in the 42nd Parliament, Hon Dr Steve Thomas is the chair and Hon Klasey Hirst, Hon Philip Scott and I are members of the committee. I want to pause at this point to thank the chair of the committee and my fellow members, Hon Philip Scott and Hon Klasey Hirst, for the collegial approach that we all take to the bills. It gives me a sense of deja vu. When I first came to Parliament, I was the deputy chair of the committee and I worked with a Labor Party member, a Liberal Party chair and a member of the One Nation party. I certainly look forward to continuing in the 42nd Parliament what I experienced back in the 40th Parliament. I certainly look forward to working with both those honourable members in our committee work. When Hon Samantha Rowe concluded her contribution earlier in relation to another bill, I understand that it was referred to the uniform legislation committee. I certainly look forward to working with those honourable members in the very new future. I am probably going to get a phone call from Hon Dr Steve Thomas tomorrow morning, telling us when we need to meet again.

The uniform legislation committee looked into the Evidence Bill 2025. In that report, we referred to the 150th report of the previous iteration of the uniform legislation committee, which looked at the Evidence Bill 2024. We also took the opportunity to look at the provisions of the Evidence Amendment Bill 2024. As I mentioned earlier, the Australian Law Reform Commission started its process in 1979 to look into whether Australia should have a uniform evidence legal framework, and its final report was delivered in 1987. The uniform legislation committee spent a little bit of time on the Evidence Bill 2024. This is what the committee said in its 151st report:

5.1 The 2025 Bill was introduced in a similar format in the 41st Parliament as the 2024 Bill and was referred to the Committee for consideration and report.

5.2 The Committee wrote to the former Attorney General seeking his advice about several clauses which raised concerns about Parliamentary sovereignty.

5.3 The Committee tabled its report on 22 October 2024 … Appendix 1 of Report 150 is the former Attorney General's response to the Committee's queries. The response, given in September 2024, is a useful reference and is attached as Appendix 1.

In that letter, Hon John Quigley, who served this state between 2017 and 2025 as the Attorney General of Western Australia, provided a table on the Evidence Bill 2025 containing his responses to the committee's questions and queries. At this point, I think it is important that we pause and reflect on just how significant the contribution made by Hon John Quigley was as the first law officer of Western Australia during his time as Attorney General. It is no small feat. We have to remember that we introduced significant legislative reforms during his time, including the Evidence Bill 2024. Now, with the groundwork set by him and his team, we are able to continue on that trajectory. With minor changes and tweaks, we now have the Evidence Bill 2025.

If I may, I would like to come back to where I left things in the committee's report. The committee noted that the 2025 bill is slightly different from the 2024 bill. The 2025 bill has more clauses, as it incorporates the provisions that were included in the Evidence Amendment Bill 2024. The committee explained that the Evidence Amendment Bill 2024 was introduced into the Legislative Assembly on the same day the Evidence Bill 2024 was introduced into the Legislative Council. The bills were introduced separately because the Evidence Bill 2024 contained provisions that were required to be considered by the committee, pursuant to its terms of reference. At the same time, the 2024 amendment bill contained provisions that appropriated revenue or moneys, or imposed taxation, and was therefore required to be introduced into the Assembly. As we all know, any bills that contain a monetary nature cannot commence in the Legislative Council. That is why that step was undertaken.

Although neither bill was passed in the 41st Parliament, the committee continued its work. The committee understands that the purpose of separating the bills was to give them the best chance to pass before prorogation. The 2025 bill, having already been introduced in and passed by the Legislative Assembly, has not faced the same obstacles as the two 2024 bills. The government summarised the key differences between the 2024 bill and the 2025 bill in the supporting information. The summary is set out at appendix 2. The current Attorney General, Hon Dr Tony Buti, provided the committee with the supporting information, which was very helpful to the committee's work and deliberations. The supporting information is categorised as appendix 2, "Summary of differences between 2024 bill and 2025 bill" and contains six paragraphs. I wish to refer to them quickly. The key amendments in the Evidence Bill 2025 include:

a) Amendments to address the Committee's recommendations on the Evidence Bill 2024 that affected the definition of 'person acting judicically' in clause 3 and some related clauses, aimed at preserving parliamentary sovereignty.

b) The provision regarding the exclusion of evidence relating to the complainant's sexual reputation and disposition (clause 206) has been expanded to protect witness in civil proceedings where the witness is alleged to be a victim of sexual abuse or harassment. This is based on a recommendation in the Australian Law Reform Commission's March 2025 report Safe, Informed Supported: Reforming Justice Responses to Sexual Violence.

c) The penalties for offences concerning protected proceedings (Part 7 Division 10) have been increased following feedback that they were inconsistent with those in other jurisdictions. These recordings contain sensitive and personal information from witnesses, so it was considered appropriate that the penalties reflect this seriousness and that they are consistent with other jurisdictions'penalties.

d) Removal of what was clause 353. This clause made evidence obtained during desposition hearings at the preliminary or other investigative stage of a charge able to be received in evidence at trial.

…

e) Additional consequential amendments created new Divisions in Part 12, most of most of which are technical or improve consistency between the Bill and other Acts …

f) A consequential amendment Division has been added in Part 12 to preserve the current evidentiary rules about business records in confiscation proceedings under the Criminal Property Confiscations Act 2000.

Late feedback was received from stakeholders—if the 2024 Bills' business records rules applied in confiscation proceedings, they would significantly hinder the practices and procedures which the Office off the Director of Public Prosecution and the WA Police Force have established for confiscation proceedings, which are a unique variety of proceeding.

The consequential amendment will ensure that the business record rules that are contained in the Evidence Act 1906 will continue to apply in State confiscation proceedings, while all other proceedings will fall under the Evidence Bill 2025's business record rules.

I started my learning of law in the year 2002. I recall that in 2003, there was a yearlong subject called criminal law. During that study, the Criminal Property Confiscation Act 2000 was criminal law subject matter during that year. At the time, as we can see, that legislation was in place and in effect for about three years. It was new and quite unique legislation in support of the law enforcement agencies in Western Australia, ensuring that people who have committed crimes and gained a benefit as a result cannot retain the benefit they derived from their criminal activities. I am pleased to see that the Evidence Bill 2025 will have a mechanism to support our law enforcement agencies, such as the Western Australia Police Force and the Office of the Director of Public Prosecutions. It is important to note that they are doing a fabulous job in protecting Western Australia and Western Australians. We should do anything and everything we can in support of their work.

Coming back to the content of the report, it outlined:

The Committee has considered all clauses in the 2025 Bill. It has only reported on clauses that it considers impact on Parliamentary sovereignty, in accordance with its terms of reference, and to assist the Legislative Council during debate.

Talking about parliamentary sovereignty, we must all be mindful of the potential impact of Henry VIII clauses. I am sure a lot of executive governments of all colours would like to see some of them from time to time. The committee has been very helpful in the sense that it provides a bit of an explanation. It is a good refresher for members who have been around for a little while as to what a Henry VIII clause looks like.

At paragraph 7.1 the committee states:

A 'Henry VIII' clause allows an Act to be amended by subordinate legislation or Executive action. Providing this power to the Executive erodes Parliamentary sovereignty.

Paragraph 7.2 states:

The Committee has previously recommended that when introducing a Bill to the Legislative Council that proposes Henry VIII clauses, the responsible Minister provide in the explanatory memorandum the rationale for that provision.

Debate adjourned, pursuant to standing orders.