Bills
Evidence Bill 2025
Committee of the whole
Resumed from an earlier stage of the sitting. The Deputy Chair of Committees (Hon Simon Ehrenfeld) in the chair; Hon Dan Caddy (Parliamentary Secretary) in charge of the bill.
Clause 3: Terms Used
Committee was interrupted after the clause had been partly considered.
Hon Dan Caddy: I want to make some brief remarks on the closing remarks of Hon Nick Goiran, before we were so rudely interrupted for question time, around the number of clauses a person acting judicially affects. I read that list in, and the honourable member made a point of saying that it was a long list containing more clauses than some bills that come to this chamber, which is indeed true. But to be clear, it was 15 clauses in a 492-clause bill, which is 3% of the clauses in the bill. The purpose for the inclusion of the list and reading it out was to demonstrate that whilst important, it is a very small component in total of the bill that we have been debating for some time now.
Hon Nick Goiran: It is good to be back! Might I take this opportunity to commend the parliamentary secretary representing the Attorney General, who is new to the role, for the hardworking approach he is taking. He is certainly following in the footsteps of his predecessor, Hon Matthew Swinbourn, who is away from the chamber on urgent parliamentary business. I thank the parliamentary secretary for his hard work dealing with this bill and during question time.
We paused for a moment to consider the definition of the term "person acting judicially". It is not my intention to spend any further time talking about the term "credibility of a witness". I spent a bit of time on that during my second reading contribution, and I went through a couple of high-profile examples of the credibility of witnesses. It is not my intention to spend any further time on that.
I want to conclude consideration on "person acting judicially". This is more of a statement because we have had a reasonable amount of dialogue on this point already. For the purpose of the record, it seems to me somewhat unsatisfactory that a decision has been made by government to insert a definition of a "person acting judicially" and, in doing so, to carve out the State Administrative Tribunal. That was a decision made by the government in the last Parliament, and a package of bills was presented to the house that sought to do that. In the intervening period, the government has decided to carve out another class of persons acting judicially—that is, to incorporate an exemption with respect to parliamentary proceedings. To be clear, the opposition has no objection to the State Administrative Tribunal and the proceedings in Parliament being exempted from the definition of "person acting judicially" for the purposes of the Evidence Bill 2025. I would, however, note, and put to the parliamentary secretary rhetorically—I do not necessarily need a response, but of course he is at liberty to provide one—that it is not necessary to have lines 22 through to 29 on page 9 of the bill. That is the provision that expressly goes out of its way to exclude the State Administrative Tribunal and parliamentary proceedings, but they would be excluded in any event. In the case of the State Administrative Tribunal, that would be by virtue of the provision that the parliamentary secretary has referred to already.
The examination of this clause and this term have been instructive, because it has identified other examples of persons or bodies that have the authority to hear, receive and examine evidence. Two examples that we identified earlier this afternoon have been the criminal injuries compensation assessors and the WorkCover WA assessors, or whatever their formal title is, be it assessor or arbitrator, under their legislation. They are also persons who have the authority to hear, receive and examine evidence. As I understand from the parliamentary secretary, those individuals are carved out anyway by virtue of a section in their own statute, just like the State Administrative Tribunal, so why do we bother to do this? To the extent that we had an explanation during the examination of this clause it was that the State Administrative Tribunal is by its very name a tribunal and therefore the government wanted to put it beyond doubt, but of course there are other tribunals in Western Australia. Might there therefore be some confusion as to the situation with those bodies? As I say, I do not think we will be making any progress here. It is not my intention, nor is it the responsibility of the opposition, to now go through the process of trying to identify all those other bodies like the State Administrative Tribunal and the Parliament that might also need an exclusion to put things beyond doubt. That is not the job of the opposition; that is the job of the government. It is the government's bill. It takes responsibility for this and the term that is found on page 9. I simply make these comments for the purpose, if nothing else, of the review that will be conducted into this legislation in five years time, in the hope that somebody will take the time to examine this definition and ensure that it is entirely consistent rather than what it is at the present time, which is partially consistent.
Clause put and passed.
Clauses 4 and 5 put and passed
Clause 6: References to documents
Hon Nick Goiran: As we are considering clause 6, I want to consider clauses 6, 7 and 8 as a package. For the benefit of the chamber, depending on what other questions members might have, I indicate to the Deputy Chair that my next clause for questioning is clause 13.
As we consider clause 6 as a package with clauses 7 and 8, members may note that clause 6 is entitled "References to documents", clause 7 is "Representations made in documents" and clause 8 is "References to availability of documents and things". My attention is particularly drawn to the definition of "document", found in clause 6(1), which states:
A document is any record of information and includes the following —
(a) anything on which there is writing;
(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them;
(c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else;
(d) a map, plan, drawing or photograph.
Clause 6(1)(a) is particularly pertinent in light of some developments that happened in the chamber yesterday. According to that provision, a document is a record of information and includes anything on which there is writing. Clause 6(2) states:
A document also includes the following —
(a) any part of the document;
(b) any copy, reproduction or duplicate of the document or of any part of the document;
(c) any part of a copy, reproduction or duplicate of a document.
Yesterday, the Parliamentary Secretary to the Minister for Health Infrastructure tabled three documents when she made a statement. These documents had to do with a reported radioactive water leak at Sir Charles Gairdner Hospital. I have those documents in my possession, but, of course, they are a copy or a reproduction of those documents. They are not the documents that the parliamentary secretary tabled; they are now in the custody of the Parliament. I have in my possession this afternoon a copy or reproduction of those documents. I indicate to the chamber that this reproduction was printed by me by virtue of the electronic copy that had been provided. The definition in clause 6(3) at page 16 of the bill also refers to what a public document is and states:
A public document is a document that —
(a) forms part of the records of the Commonwealth, a State or a Territory; or
(b) forms part of the records of the government of a foreign country; or
(c) forms part of the records of a person or body holding office or exercising a function under or because of the Commonwealth Constitution, an Australian law or a law of a foreign country; or
(d) is being kept by or on behalf of the Commonwealth, a State or a Territory, a government of a foreign country or a person or body referred to in paragraph (c).
By virtue of clause 6(4), we know that there are further examples of what a public document is. Clause 6(4) states:
A public document includes the records of the proceedings of, and papers presented to —
(a) an Australian Parliament, a House of an Australian Parliament, a committee of a House of an Australian Parliament or a committee of an Australian Parliament; and
(b) a legislature of a foreign country, including a House or committee (however described) of a legislature of a foreign country.
All of that is to say that there is no doubt in my mind that the documents presented by the Parliamentary Secretary to the Minister for Health Infrastructure yesterday are indeed documents that would meet the definition of not only a document, but also a public document pursuant to this provision of the bill.
As I say, it is useful to consider clause 6 in light of what is contained in clauses 7 and 8. Clause 7 is entitled "Representations made in documents" and says:
For the purposes of this Act, a representation contained in a 16 document is taken to have been made by a person if —
(a) the document was written, made or otherwise produced by the person; or
(b) the representation was recognised or acknowledged by the person as the person’s representation by signing, initialling or otherwise marking the document.
Interestingly, in the example I have provided the house now, these documents tabled by the Parliamentary Secretary to the Minister for Health Infrastructure on the reported radioactive water leak at Sir Charles Gairdner Hospital, certain provisions have been redacted. Three documents were tabled yesterday by the parliamentary secretary. I note that one of those documents has provision for it to be signed. In fact, this document is entitled "Maintenance Advice Form". We know that the maintenance advice form is dated 27 March 2023. One of those dates is handwritten and the other is type recorded but both of them have provision for a signature and both of them have been redacted. I take that to mean that but for the redaction the documents tabled yesterday would otherwise contain two signatures, which have been redacted. Therefore, the representations made in these documents have been made by the persons in the documents and, in particular, that they would then meet the definition in clause 7, as read in conjunction with clause 6. Of course, of those representations include things such as a work description that said:
URGENT RAPID RADIATION LEAKAGE: Pipe blocked leaking to corridor in sub-basement. Need plumber to unblock. Call Physicist to supervise ...
That is what was recorded in one of the documents tabled yesterday. In addition, the second document records the following:
Radioactive waste pipe in the sub-basement has began leaking from the seal in 2 entrance values. Radioactive water is dripping down onto the floor. Require a plumber to stop the leak. Work must be carried out early morning and completed before radioactive therapies begin at 7am. Must called physicist on—
Then, there is presumably a number that has been redacted:
—before beginning work.
That is what is contained in two of these documents. Then, there is a third document dated 27 March 2023. The first two documents are dated 13 and 14 March 2023. These documents are about this reported radioactive water leak at Sir Charles Gairdner Hospital, and, I might add in passing, the government has been very resistant to providing them to the Parliament. The extraordinary extent necessary to obtain these documents has been quite unbelievable.
Hon Dan Caddy: Can you read the answer to the question?
Hon Nick Goiran: Does the parliamentary secretary want me to read the answer to the question?
Hon Dan Caddy: The answer said there was no radioactive leak.
Hon Nick Goiran: The parliamentary secretary has invited me to do so and it is interesting that he should ask because the statement, rather than the answer, that was provided yesterday—I think this is the portion of the document that the parliamentary secretary is referring to—by the Parliamentary Secretary to the Minister for Health Infrastructure says:
The Department of Health advice has remained consistent throughout and that advice is ... The incident in the Sir Charles Gairdner Hospital G-block sub-basement was not a radioactive leak. It involved a non-hazardous water leak from a pipe, which was repaired without further risk. A physicist confirmed that there was no detectable radiation present prior to remedial works being undertaken.
I think that is the portion of the statement that the parliamentary secretary has invited me to read out.
The Deputy Chair: I give the honourable member the call again.
Hon Nick Goiran: It is very interesting that there were no documents tabled yesterday to the parliamentary secretary that confirm what the government suggests the physicist has confirmed. The government simply said that a physicist confirmed there was no detectable radiation present prior to remedial works being undertaken. Where are the documents that support that? Where is the evidence that would support the assertion that was made by Minister Carey. Minister Carey seemed to suggest that that was the case, and he has been invited, repeatedly, to provide documents that would support his assertion. He has been incapable of doing so, or unwilling. It has been quite an extraordinary episode. It is very, very rare for the Parliament of Western Australia to have to pass an order to produce, and on the cusp of that potentially happening I note the government produced these three documents yesterday, none of which verify the assertions put by Minister Carey. One might say in passing that perhaps Minister Carey has too many portfolios and is therefore incapable of doing his job when it comes to health infrastructure, but that is a matter for the government for another day.
I return to clause 6. If we read the clauses in conjunction, clause 6, "References to documents"; clause 7, "Representations made in documents", which include whether they have been signed, initialled or otherwise; and clause 8, which refers to references to availability of documents and things, we can note, here at page 17 of the bill that clause 8 says:
For the purposes of this Act, a document or thing is taken not to be available to a party if and only if —
(a) it cannot be found after reasonable inquiry and search by the party;
The clause then goes on to provide other examples. Line 1 of page 18 of the bill says:
(b) it was destroyed by the party, or by a person on behalf of the party, otherwise than in bad faith, or was destroyed by another person;
I go back to the example of this document that meets the definition here in clause 6. Clause 6 defines what a document is, and that means the document tabled yesterday by the Parliamentary Secretary to the Minister for Health Infrastructure. What is very interesting is that other documents have been asked to be provided. The question then becomes: Has reasonable inquiry and search been undertaken by the Minister of Health Infrastructure as per clause 8(a). Can they not be found? Has somebody in the Cook Labor government made reasonable inquiries and search about this verification by the physicist—the suggestion by the government that the physicist has confirmed that there was no radioactive water leak? We do not know. Remember, this is the government that promised gold-standard transparency, of which all it has delivered is gold-standard secrecy for the last nine years. Be that as it may, more concerning is this provision in clause 8(b) that talks about the destruction of documents otherwise than in bad faith. I trust that there are no documents about this reported radioactive water leak that have been destroyed, whether in good or bad faith. I charitably assume that is not the case. I trust that the parliamentary secretary will understand point being made here. The government is asking the chamber today—preferably today, debate might not finish today—to pass the Evidence Bill 2025. It would like the bill to bring Western Australia into line with the other jurisdictions. It would like to retain to contain many provisions under the existing Western Australian law that has been here since 1906. It wants to codify certain provisions that have been made over time, courtesy of the common law. It says this is very important. In fact, it is the most important bill for the government this week. It says that it will take about 18 months to bring this Evidence Bill into effect. It has agreed that there will be a review of this law in five years time and, indeed—well, we hope—subject to a further amendment, a second review five years thereafter.
This is how important this matter is to the government. Then, I think it is reasonable for members to expect that the government will be the model citizen, that the government will be the model litigants, that the government will ensure that it adheres to the very things that it expects everybody else to do, and if it expects to enshrine into our statute this definition of a document, including what is a public document, that it will itself accept that the documents tabled yesterday by the parliamentary secretary for the Minister for Health Infrastructure was indeed a document that makes this definition. Then it will also accept that there are representations that were made in those documents by the persons who created the documents consistent with clause 7 in the bill. It will also accept that the onus is on it to demonstrate whether it has made reasonable inquiry, and search for documents before there is an assertion made that the documents are taken not to be available. The government cannot have it both ways.
It decided, albeit yesterday, to belatedly bring this bill on in virtually the final few minutes of yesterday's proceedings. Now it has decided to make it its priority for today. Then the government needs to be held to account with respect to the content of the documents, including the bill that is presently before us. Might I say on behalf of the opposition as we are considering the passage of clause 6—I think I have already indicated that my next round of questions and examination will be at clause 13—that the opposition supports clause 6, the opposition supports clause 7, the opposition supports clause 8. We expect the government, Minister Carey in particular, to be reminded of his obligations when it comes to public documents and the importance of representations in these public documents, especially if there is a public officer who is brought to the government's attention or a concern about a radioactive water leak in a hospital.
We certainly expect that the government will respect those representations found in the documents and will agree to be held to account for those representations. Now, if there is a very good reason that the representations are inaccurate, for example, that there was no radioactive water leak, then provide documents to suggest that, to confirm it. Provide the evidence. It is not going to be good enough, with all due respect, to have the word of Minister Carey. That is not going to satisfy us. I dare say, on his track record, that it is not going to satisfy a lot of Western Australians. So, we support the passage of clause 6, we support the passage of clause 7, we support the passage of clause 8, and we call on the government to ensure that it maintains the standard that it is expecting of everybody else.
Hon Dan Caddy: The was not really a question in there, but there is a lot to respond to, and I am happy to respond to most of it. Essentially, the member is asking for us to give proof that something did not happen or does not exist. The matter relating to the plumbing at the hospital happened on 13 March 2023 and the honourable member has asked questions on notice and has indeed received a very fulsome answer to those questions, as we just heard. He quoted at some length not just the answer that I suggested he quote, and I thank him for that, but from some of the reports as well. A list of relevant work orders associated with the leak was released under a freedom of information request and the only other material relevant to it that exists was a maintenance advice form, which was tabled either in this house or the other. I am not sure whether it has been tabled and in any case the honourable member has a copy of it because he was reading from it.
The Department of Health advice has remained consistent throughout this. The incident in the G block sub-basement was not a radioactive leak. It involved a non-hazardous water leak.
Hon Nick Goiran: How do we know that?
Hon Dan Caddy: We know because the leak involved the non-hazardous water leak from a pipe that was repaired without further risks. The member has read the report or the work order that he has there. A physicist has confirmed that there was no detectable radiation present prior to the remedial works being undertaken. The leak was repaired consistent with hospital safety protocols. The matter did not require reporting to the Radiological Council. These hospital systems are managed under Australian Radiation Protection and Nuclear Safety Regulations in line with the Radiation Safety Act 1975, which, as a closing comment, I would say has nothing to do with the Evidence Bill 2025, so maybe we might get back to that. Thank you.
Clause put and passed.
Clauses 7 to 12 put and passed
Clause 13: References to offspring and parents
Hon Nick Goiran: How is the definition of "parent" in clause 13 intended to operate in light of the definition in clause 5 of the Interpretation Act?
Hon Dan Caddy: The short answer is the definition is non-exhaustive and will be informed by the definition of "parent" currently in the Interpretation Act 1984.
Hon Nick Goiran: So, despite the fact that the bill before us is intended—as I said earlier, for lack of better words—to be a one-stop shop for those who need to be concerned about the state of the evidence laws in Western Australia, it appears that when it comes to the definition of a parent, that going to the specific provision at clause 13, which seeks to define a parent, that it is not exhaustive. The parliamentary secretary will note that there is a very helpful part that has been done by the drafters and those involved in the production of this document.
There is a note at the bottom of this particular clause. It says that we should compare this with the Commonwealth act. Is there a definition of "parent" in the current Evidence Act 1906?
Hon Dan Caddy: Member, neither "offspring" nor "parent" are terms defined in the current act, but "child" is defined in the current act; however, this is a reference to a child being a person under the age of 18 years rather than the status of "being the child of a person". The definition in the bill has been amended from the Commonwealth act, as the definition in the Commonwealth act is now somewhat outdated and may inadvertently capture a person living with a child who is not undertaking a parental role. That is some further information.
Hon Nick Goiran: Notwithstanding the fact that there is a note with respect to the Commonwealth act, I understand that the definition of "parent" under clause 13 will not be consistent with the definition under the Commonwealth legislation.
Hon Dan Caddy: No, member, the definitions are not the same. There is a note to compare the clause to the Evidence Act 1995. Those notes refer the reader to either a former act or another act wherein a definition or a choice of wording is the closest possible place where that could be found.
Hon Nick Goiran: Therefore, I take it that in some instances there will be a definition in both the existing 1906 Western Australian act and the Commonwealth's Evidence Act 1995. Are there instances of a double notation in the bill?
Hon Dan Caddy: I am informed that when the wording in a bill has been formed through a combination of what may appear in two or more acts, they will be listed.
Hon Nick Goiran: I return to the definition of "parent", notwithstanding its deviation from the Commonwealth definition. The parliamentary secretary indicated that we will have to take into account the definition in the Interpretation Act 1984. Will we also have to take other Western Australian statutes into account when defining what a parent is?
Hon Dan Caddy: That is an incredibly broad question, as the member would realise. For the purposes of this legislation and for people working with it, it will be the definition in this act and the Interpretation Act 1984.
Hon Nick Goiran: Is the definition of "offspring" also based on a provision in the Commonwealth act or is it only the definition of "parent"?
Hon Dan Caddy: The section in the Commonwealth act references children and parents. It does not use the word "offspring". The act defines children and parents and their relationship. That may not be helpful to the member—it may not answer his question—but it is the best answer I can give with reference to that act.
Hon Nick Goiran: I understand from the parliamentary secretary's answers that the 1906 Western Australian act has a definition of "children". The Commonwealth act has a definition of "children", yet we have decided not to use the definition of "children" in this legislation; instead, we have the definition of "offspring". Can an explanation be provided for that?
Hon Dan Caddy: I will give the member the long explanation. As I said before, neither "offspring" nor "parent" are defined in the current act and "child" is defined in reference purely to age, not to any sort of relationship. The Commonwealth act does not clearly distinguish between a child being a person under the age of 18 years and the child of a person who is related in that way, but may be of any age. Context usually clarifies which of the meanings was intended. The current act defines "child", but for the purposes of a child being a person under the age of 18 years. For clarity, the bill has adopted an updated version of the definition of the Commonwealth act, as I referred to before—schedule dictionary part 2, clause 10, but changed the name of the term. The definition is non-exhaustive. As I mentioned, the specific kinds of people mentioned as included by the definition are mentioned to explicitly bring them within the definition wherein there might be cause for debate.
The Commonwealth act refers also to an adoptive parent and the father of a person born exnuptial. This definition was part of the original version of the Commonwealth act from 1995. Times have moved on, and some of the items that were included in the definition would no longer be debatable inclusions in the definition of "parent". The specific reference to an adoptive parent is unnecessary in WA as it is already captured by the Interpretation Act's definition of a parent. The reference to the father of an exnuptial child is outdated, gendered and is not required given that it is assumed by the modern standard English definition of "parent", so that is the reason it has not been included.
The remaining provision has been modified to make clear that a person living with a child as if the child were a member of the person's family is only to be regarded as the child's parent if they are acting in that role. This excludes, for example, siblings who live with a child but are not responsible for the child. This was a drafting amendment to explicitly avoid an interpretation whereby a sibling or a relative who is not and has not acted as a parent might fall within that definition.
Hon Nick Goiran: We have already made reference to the fact that there are notes in the current act of 1906 and there are notes in the Commonwealth act of 1995. I note that there are also some notes in the 1995 New South Wales legislation. Does the New South Wales legislation have any definitions of "child", "offspring" or "parent"?
Hon Dan Caddy: A quick review, member, but it appears that the New South Wales legislation mirrors the Commonwealth legislation.
Hon Nick Goiran: For the purposes of what will be the evidence act 2025, assuming we pass it this year, is it intended that the definition of a "child" is the offspring of a parent who is yet to have attained the age of 18?
Hon Dan Caddy: A child—and I have said this previously—is defined by age. A child is under the age of 18, whereas "offspring" denotes a relationship, so offspring, by its very nature, could be a child of any age, but it is more in defining the relationship that that person—the offspring—has with a third person or second person, however we are going to put it.
Hon Nick Goiran: Clause 13(2) states:
A parent, in relation to a child, includes a person who acts as a parent to the child and with whom the child lives as if the child were a member of the person’s family.
The word "child" appears four times in the space of that subclause, yet there is no definition of "child". I am seeking to confirm whether by necessary implication, if you like, it is intended that for the purposes of the Evidence Bill 2025 that a child is the offspring of a parent who is yet to attain the age of 18.
Hon Dan Caddy: I refer to clause 3 on page four of the bill, which states, in part:
child means —
(a) a person under 18 years of age;
So there is a definition of "child" within the bill, but as I explained, the definition of child is done by age; "offspring" is to denote a familial relationship. A person may well be both a child and offspring, as defined by the bill, but this was done very deliberately to avoid confusion.
Clause put and passed.
Clause 14 put and passed
Clause 15: Extended application of certain provisions
Hon Nick Goiran: It is specified at clause 15(1):
A provision of this Act applies to a proceeding before a WA tribunal or a person acting judicially, whether or not the tribunal or person acting judicially is a court, if this Act expressly provides that the provision extends to a proceeding before a WA tribunal or a person acting judicially.
Clause 15 (2) states:
If a provision of this Act extends to a proceeding before a WA tribunal or a person acting judicially, a reference in the provision to a court includes a reference to a WA tribunal, or a person acting judicially, as the case requires.
Is there a list of which WA tribunals and types of persons acting judicially are intended to be captured by the application of the act?
Hon Dan Caddy: Member, "tribunal" is defined in the legislation and "person acting judicially" is also defined, as we spoke about for some time earlier, but there is no list as such.
Hon Nick Goiran: When the parliamentary secretary says that "tribunal" has been defined, if I look at page 12 of the bill, going back to clause 3, the definition of "tribunal" states:
tribunal, of a State or Territory, means a person or body authorised by or under a law of the State or Territory to take evidence on oath or affirmation;
There is also the definition of "WA tribunal" on page 13, from line 11 onward. It states:
(a) means a tribunal established in this State under a written law; but
(b) does not include the State Administrative Tribunal;
Which tribunal is it in Western Australia that we say is captured by the application of the bill, other than the State Administrative Tribunal, which we know is not captured?
Hon Dan Caddy: As I said before, we do not have a list, but the answer to the member's question is essentially any tribunal established under a state law that does not have an exemption to the Evidence Act. It is a very broad question and that is a very broad answer, but that is the best that I can give the member.
Hon Nick Goiran: I probably cannot take it too much further at this time, other than to simply indicate that the government is going out of its way here to define what is a WA tribunal but is not in a position to provide examples. Perhaps that is a little unfair, because I do not think I have asked the parliamentary secretary to provide an example. So I will start with that. Other than the State Administrative Tribunal, and without necessarily expecting the parliamentary secretary to provide an exhaustive list, because he has indicated that no exhaustive list has currently been prepared, what are the types of tribunals that the government intends to have this evidence act apply to? The parliamentary secretary has indicated that they are tribunals that exist, other than those that have exemptions. What would be one or two examples of such tribunals?
Hon Dan Caddy: I can give the member one example, and I give it advisedly, having not checked the legislation. The Mental Health Tribunal may be one such tribunal.
Clause put and passed.
Clauses 16 to 18 put and passed
Clause 19: Application of common law and equity
Hon Nick Goiran: There is reference here to a carve-out on bail. Why has bail been included as part of the carve-out at clause 19(2)(b)?
Hon Dan Caddy: The paragraph that the member has referred to is the application of the uniform provision, which is why it is how it is.
Hon Nick Goiran: So this is the provision that will apply the uniform provision. Can the parliamentary secretary elaborate on what he means by that?
Hon Dan Caddy: It is worded almost identically to section 9(2)(b) of the Commonwealth act. It is the same; it refers to bail, so it is uniform law.
Hon Nick Goiran: My question was why has bail been included in the carve-out in clause 19(2) and the explanation that has been provided is that it is because that is what the Commonwealth has done. The Commonwealth has carved out any common-law rules that apply to bail. I take it that this has not been necessary in the current 1906 act in WA because the 1906 act that we are using at the moment has the evidence statute, and then some common-law principles apply with respect to bail and the amalgamation of those two things then form the law that needs to be applied for bail. In this particular instance, I assume that the government therefore wanted to retain those common-law principles or common-law evidence laws for bail and that is why we are including clause 19(2)(b). As it so happens, this provision also exists in the Commonwealth legislation, so to that extent it is uniform. Is that the purpose of the carve-out in clause 19(2)(b)?
Hon Dan Caddy: Yes. What the member has said is accurate, but I will build on that. Obviously, this is uniform legislation, so our starting point is that we do what we can to keep uniform and consistent with other jurisdictions. I can give the member more if he wants. There are obviously specific laws. Bail law is very specific. By carving this out, we will not be in conflict and we will fall back to the laws on bail that exist in the state, as is the case in other jurisdictions and at the Commonwealth level.
Hon Nick Goiran: The outworking of clause 19—I think we had this discussion during debate on clause 1—is that we are not completely codifying the evidence law in Western Australia; we are partly codifying the evidence law in Western Australia.
Hon Dan Caddy: Correct.
Hon Nick Goiran: Thank you. Have any other jurisdictions completely codified their evidence law?
Hon Dan Caddy: I can confirm that the uniform jurisdictions have not completely codified.
Hon Nick Goiran: Obviously, Western Australia will be one of them once this bill passes and comes into full effect. New South Wales evidently is one of those, as is the Commonwealth. What other jurisdictions are part of the uniform scheme?
Hon Dan Caddy: At the moment, those that are not a part of it are Western Australia, Queensland and South Australia.
Clause put and passed.
Clauses 20 to 24 put and passed
Clause 25: Compellability: foreign sovereign and others
Hon Nick Goiran: Members should be not only familiar with but also supportive of clause 25 because one of the purposes of clause 25 is so that it is not permissible to compel a member of Parliament. There are 37 members of the Legislative Council in Western Australia in this 42nd Parliament. It will not be permissible to compel a member of Parliament to give evidence if the compulsion to give the evidence conflicts with the member fulfilling their duties in the sense that there is a sitting of Parliament, a joint sitting of Parliament or, indeed, a meeting of a committee of which a member is part. They are the circumstances in which a member of Parliament will be immune from being compelled to give evidence. It is partial, not complete, immunity, and one that ought to be supported. It also says in this provision that certain other peoples are not compellable to give evidence. One of them is a foreign sovereign and the other one is the head of state of a foreign country. They are the ones who are not able to be compelled to give evidence. Of course, circumstances were set out earlier, such as a person who has reduced capacity, which is set out in clause 24. There are other circumstances that we will get to shortly with respect to judges, jurors and, indeed, a co-accused. Clause 27 deals with circumstances in which that might be permissible, depending on whether they are in separate trials or in the same trial and so forth. There is also a restriction on the compellability of a person to give evidence if they are a spouse and another provision deals with witnesses in public revenue cases, which I intend to get to specifically when we get to clause 29. But for the time being, I think what members can see from that package of clauses is that only a small class of individuals are not captured by clause 22, which we have already passed. It states that every person is competent to give evidence and a person who is competent to give evidence about a fact is compellable to give that evidence.
This very much reminds me of an episode involving the Standing Committee on Estimates and Financial Operations in the 41st Parliament with which the parliamentary secretary would be very familiar. In that episode involving the Standing Committee on Estimates and Financial Operations—might I mention in passing what an outstanding Chair that committee has in this 42nd Parliament. The committee had an equally excellent Chair in the 41st Parliament in Hon Peter Collier. I had the opportunity to serve on that committee, as did the parliamentary secretary, Hon Dan Caddy, when he was serving his apprenticeship prior to being elevated to being the Parliamentary Secretary to the Attorney General. Members may well like to familiarise themselves with report 90 of the Standing Committee on Estimates and Financial Operations, which looked into the budget estimates process for 2023–24. I will invite members to familiarise themselves with paragraphs in the report on another occasion so as to not unnecessarily hold up the passage of this bill. Page 21 of that report has four very pertinent paragraphs.
Progress reported and leave granted to sit again, pursuant to standing orders.
