Bills
Evidence Bill 2025
Committee of the whole
Resumed from 9 September. The Deputy Chair of Committees (Hon Dr Brian Walker) in the chair; Hon Dan Caddy (Parliamentary Secretary) in charge of the bill.
Clause 1: Short title
Progress was reported after the clause had been partly considered.
Hon Nick Goiran: We had a very, very short time on clause 1 yesterday evening, and so we now resume it this afternoon. I note that Hon Dr Brad Pettitt is away from the chamber on urgent parliamentary business. Those who might be interested in his best interests might want to draw to his attention that the bill is now being considered. I understand he has some remarks to make at some stage. Until that time, Deputy Chair, we resume consideration of the first clause.
Yesterday evening I asked the parliamentary secretary what was the basis for the changes that had been made to the bill in the other place. Members will note that the Evidence Bill 2025, the version before us, is bill number 9 bar 2, indicating that some changes have been made in the other place. Yesterday evening the parliamentary secretary indicated that the justification for the changes pertained to the intention on business record rules. Who drew that issue to the attention of the government and when was it drawn to the government's attention?
Hon Dan Caddy: It was brought to the attention of the government by the Parliamentary Counsel's Office (PCO) after the bill had been introduced.
Hon Nick Goiran: Therefore, parliamentary secretary, it was PCO that drew to the attention of the government this issue with regard to the business record rules. Which agency makes use of these rules?
Hon Dan Caddy: Primarily, the Director of Public Prosecutions (DPP).
Hon Nick Goiran: Parliamentary secretary, did the DPP raise any concerns about this issue?
Hon Dan Caddy: No, member.
Hon Nick Goiran: In the second reading speech in reply, the parliamentary secretary addressed the query I had raised in my speech in the second reading debate to do with the request, on my part, for the feedback that had been provided by the DPP to be released, and the parliamentary secretary indicated that the government was not prepared to do that; however, the parliamentary secretary provided an explanation on that point. That feedback from the DPP, and I acknowledge that it is not going to be provided in the sense of it being tabled this afternoon, did it ever raise this issue about the business record rules?
Hon Dan Caddy: Member, there are two issues we are dealing with here with amendments in this space. Some of the changes to the bill that have been made between the 2024 bill and the 2025 bill in this space was in response to the DPP, and I will use the word "advice" from the DPP. These particular amendments the member is referring to, which are the amendments we made after the bill was introduced this time, were based on advice from the PCO.
Hon Nick Goiran: Yes, and so just to conclude that point then, in the feedback provided to the government in January 2025, did the DPP never raise this issue of the business record rules?
Hon Dan Caddy: My understanding, as best as I can put it, is that DPP raised that issue in between Parliament being prorogued and the introduction of this bill, which happened in the new Parliament. That issue was addressed. Subsequent to that being addressed, the PCO raised a technical issue with those changes, which is the action that has resulted in this amendment to the bill.
Hon Nick Goiran: Okay. Parliamentary secretary, the feedback that was provided by the DPP in January 2025 was on what topic?
Hon Dan Caddy: The advice or the feedback, if you like, from DPP was that the way the bill was drafted, the business record rules—sorry, I will get this right. The way the bill was drafted initially in 2024 meant that uniform evidence business record rules would have applied to confiscation proceedings, which was not what was desirable, and so the DPP requested that when we reintroduce the bill the wording within it would retain the status quo. Therefore, that is the extent of the feedback that then led to the changes, which were then subsequently amended by PCO because of a technicality.
Hon Nick Goiran: Parliamentary secretary, in summary, in January of this year, the DPP drew to the attention of the government an undesirable element in the 2024 drafting of the bill insofar as the business record rules would apply in all circumstances, and the DPP did not want that to occur with regard to confiscation proceedings, and, therefore, it advocated to the government in this feedback from January of this year that it would be desirable from the DPP's perspective that that business record rule would be carved out as it applies to confiscation proceedings. That then explains why, in part, the bill that is before us—as it was originally introduced in the other place—is different from the 2024 bill. But since that time, there has been a further amendment made in the other place, also as I understand it pertaining to this business record rules issue—and it has been drawn to the government's attention not by the DPP but parliamentary counsel. I think that is a fair summary of this issue as it has been unpacked this afternoon.
My question, parliamentary secretary, is: what confidence can we have that the DPP, which was the original advocate on this issue, is satisfied with the version that is now presently before us?
Hon Dan Caddy: Yes, that is a fair summation of what happened. Given that the Director of Public Prosecutions had asked to retain the status quo with respect to the conditions that we are talking about, and given that is what has happened and that is fundamentally what they have been working under for some time, hence the status quo, I would suggest that they will be satisfied because they have exactly what they asked for.
Hon Nick Goiran: Which clause gives effect to the request by the DPP to carve out the business records rule?
Hon Dan Caddy: It is clause 466. It will insert proposed sections 109A to 109E into the Criminal Property Confiscation Act.
Hon Nick Goiran: With the parliamentary secretary's indulgence, just so we can close the circuit on this now, if I look at clause 466—I commend those responsible for utilising this drafting technique—it is unlike many other provisions in the bill that have a note comparing clauses with the Evidence Act 1906, which we currently use in Western Australia, or indeed the Commonwealth act, on which much of this uniform approach has been based. When I turn to 466, which begins at page 332 of the bill and is an exceptionally large clause that continues until page 338, there does not appear to be similar notation. The parliamentary secretary indicated that the intent here is to retain the status quo. Is the drafting of clause 466 based on an existing provision? That is the primary question I have here. But if the parliamentary secretary can indulge me again with a supplementary question, I really want to know this: Given the DPP understandably made some noise about the inclusion of this provision, did somebody draw clause 466 to its attention and ask, "Does this meet with your expectation in the feedback you provided us in January of 2025?" and said, "By the way, it's not exactly the version that we, the government, introduced into the other place"? It seems to me that that would be good practice and a good way to close the circuit on all of that. Could the parliamentary secretary offer to the chamber any advice he might have on it?
Hon Dan Caddy: There are three parts to the member's question. The first part is around whether the DPP is happy. The DPP obviously saw this legislation as it stands when it was introduced into the other place and it has not provided feedback one way or another on it. I can only—I hate to use the word assume—make the assumption that if the DPP were unhappy, it would have provided feedback. It is based on sections 79B to 79F of the current act. That is to answer the second part of the member's question. The third part of his question was around why the clause is not annotated as clauses are in other parts of the bill. That is because it will amend the Criminal Property Confiscation Act 2000. As a consequential amendment, it is put together in the format of the act that it will be inserted into.
Hon Nick Goiran: I know I will be stretching things if I ask further questions about clause 466 now. I think if I pursue this line of questioning on clause 466, the parliamentary secretary would be quite within his rights to say, "How about we take this up at 466?" So I might just pause this line of inquiry for now. Given that we are only on clause 1, it is going to take some time for us to get to clause 466. Might I just make the goodwill suggestion that during one of the breaks, because I doubt that we are going to be finishing this between now and question time in an hour's time, somebody might make an inquiry of the DPP, and by the time we get to 466, we can then ascertain the answer. It seems to me that if the government is going to consult with an agency that has said, "This is very important for us; let's carve out these particular provisions", that it would go and check with that agency. The fact is that we are not certain and we are making certain assumptions. I would just offer that there is a better way. As I say, I just give that as a preliminary indication of what I might take up at consideration of clause 466. If we get to clause 466 and somebody says to me that the DPP has looked at it and is satisfied with it in its amended form, we will move on quickly.
That said, parliamentary secretary, I have a number of other questions in respect of clause 1. I anticipate at least one other member will want to make a contribution, so can I at least ask this question first? We have now discussed at some length the inclusion of the business records rule carve out provision at the relevant section, which is at clause 466 of part 12 of the bill. Other than the substantive matter we have now dealt with, are there any other substantive differences between the package of bills that were introduced in 2024 and the bill presently before us?
Hon Dan Caddy: Yes. I will just get the honourable member the detail of that.
There are eight substantive amendments and I will just go through them quickly. In clause 3, there is an amended definition of "person acting judicially". The reason for this is to give effect to recommendation 1 of the Standing Committee on Uniform Legislation and Statutes Review. In clause 178, we have deleted the reference to "a proceeding before a member of a House of Parliament or a Committee of a House, or both Houses, of Parliament who, by law, has authority to hear, receive and examine evidence". This has been done to give effect to recommendation 2 of the Standing Committee on Uniform Legislation and Statutes Review. In clause 206, we have extended the application of the clause to witnesses who are alleged victims of sexual abuse in civil proceedings. This has been done to give effect to paragraph 1l of recommendation 46 of the Australian Law Reform Commission's 2025 report Safe, Informed, Supported: Reforming Justice Responses to Sexual Violence. In division 10 of part 7, we have increased penalties for committing a protected recording offence. This has been done to make the penalties comparable with those for similar offences in other jurisdictions. There has been a substantive amendment to clause 353 in that the clause has been deleted. It was unnecessary in WA and the wording of it was considered to be confusing. In clauses 360 to 362, references to "DNA profile certificates" have been replaced with "forensic biology certificates" and the process for appointing forensic biologists has been amended. This is to use accurate terminology and to make the process for appointing forensic scientists more efficient. In clause 409, the words "by a court, judge or person acting judicially under the former Act" have been replaced with "under the former Act by a court, judge or person acting judicially (as that term is defined in section 3 of the former Act)". This has been done to give effect to recommendation 3 of the Standing Committee on Uniform Legislation and Statutes Review. Division 13 of part 12 contains consequential amendments to the Criminal Property Confiscation Act, which we have been talking about, to allow the current act's rules regarding business records to continue to apply in criminal property confiscation proceedings. That is the list of substantive amendments.
Hon Dr Brad Pettitt: I will save most of my questions and comments until we get to clause 240, but I have a quick question about consultation while we are on clause 1. My staff have been provided with a stakeholder list that goes from 2020 to 2024. It is titled "Complete stakeholder list", so I assume the parliamentary secretary has that. It is useful; thank you. The concern is that it appears that the only Aboriginal community–controlled organisations that were consulted on this were the Aboriginal Legal Service of WA and Aboriginal Family Legal Services. I want to know when that consultation happened. Were other organisations that specifically represent women, as they are obviously more likely to be complainants under this bill, not listed? Were they consulted on this bill?
Hon Dan Caddy: I thank the member for the question. It obviously would have been a lot easier if the member had made a second reading contribution in which he asked questions like this that required us to go through tables and pull out information, because this could become reasonably time consuming. To answer the first question, the Aboriginal Legal Service of Western Australia was engaged in 2018 and then again in 2021 and 2024. It has been engaged in an ongoing fashion.
On the member's other question about organisations that specifically deal with women's interests and women's safety, I can tell him that the Centre for Women's Safety and Wellbeing, Women Lawyers of Western Australia and the Women's Legal Service WA were consulted. I also make the point that a number of community legal services were consulted as part of this at multiple stages, and a lot of those legal services either deal primarily with or have a division or section of their practice, for want of a better term, that deals specifically with the area that he is referring to.
Hon Dr Brad Pettitt: Were there any specific consultations with First Nations women? If not, that is okay. I understand it might have been captured through some of those others, but I would be interested to know to make sure that that voice was captured through this process.
Hon Dan Caddy: If the member is asking whether we consulted with First Nations groups et cetera, the answer is no, other than those I have mentioned. The Aboriginal Legal Service represents the entire community, including First Nations women.
Hon Nick Goiran: This is really an intersection between clauses 1 and 2. I appreciate that we can talk a little bit more about the precise timing and the intention of the government with the commencement of the provisions, but they are going to commence at some time. Let us say for the sake of this exercise that there is a case due before the courts on 30 November. I do not have my calendar readily in front of me, so I do not know whether it is a weekday, but let us assume that it is. Let us assume that it is a Thursday and that the intention is that on 1 December, this new evidence law will come into effect. We are midway through the trial and the trial was adjourned at, say, 4:00 pm on Thursday 30 November. On Friday 1 December, the court resumes and everyone stands as His or Her Honour takes their chair. How will those types of cases be dealt with in a transitional sense?
Hon Dan Caddy: Part 11, "Repeal, savings and transitional provisions", deals with this issue. The short answer to the question is if you are part way through a trial, the current act will continue until the end of that trial.
Hon Nick Goiran: Let us take this scenario a little bit further. The existing law, which is the 1906 law, would continue to have full force and effect for the duration of that trial so long as the trial had commenced prior to this new law coming into operation. The trial would end at some point in time. If there was an appeal and the outcome of the appeal was the order of a retrial, which evidence law would apply?
Hon Dan Caddy: A new trial would be a completely new proceeding and would therefore be bound by the new Evidence Act.
Hon Nick Goiran: My last line of inquiry in clause 1 deals with the issue of common-law rules of evidence. As I understand it, a significant impetus for the bill that is presently before us is to try to codify the range of common-law rules on evidence. Does the parliamentary secretary have readily to hand a list of the common-law rules of evidence that are being codified in the bill and the clauses that will do exactly that?
Hon Dan Caddy: I do not have a list in front of me. A readily available list does not exist. As soon as is possible, I can provide Hon Nick Goiran with some examples of the things that are not in the act that will exist in the new act, which goes to the heart of the member's question about codifying what is common law, if that would satisfy him.
Hon Nick Goiran: I thank the parliamentary secretary for the offer. What I would like to know is how we satisfy ourselves of the government's assertion that these common-law rules of evidence are being codified in legislation. I appreciate that certain examples can be provided. Perhaps the best question to ask at this point in time is this: Is it the intention or expectation of the government that all common-law rules on evidence will be codified in the bill?
Hon Dan Caddy: Clause 19 deals with how this bill and its formation interacts with common law. Clause 19 states that the bill does not affect the operation of a principle of common law except so far as expressly stated in the bill or by necessary implication. Common law obviously refers to law principles that are developed in court decisions. Other lower courts are obliged to apply that rule or principle. As the member knows, statutes can override common law. For example, clause 319 of the bill states that courts are no longer to apply the rule from the case of Longman V The Queen 1989. There are aspects of common law that the bill does not touch and are not intended to be replaced. For example, there are aspects of common-law legal professional privilege that are relevant to disclosing documents. The associated client legal privilege only deals with claiming that privilege while giving evidence.
Hon Nick Goiran: Parliamentary secretary, I had understood that part of the, shall we say, enthusiasm for this gigantic new replacement evidence law was that it would help practitioners. It is not just, of course, lawyers who have use of evidence laws; indeed, they are used by police officers, amongst others. Part of the enthusiasm was to try to bring everything together under one regime. Part of the impetus was to say that we have these laws operating at the commonwealth level and they are being rolled out in most other jurisdictions. South Australia continues to have standalone evidence law, but I gather most of the other jurisdictions are now applying what might be described as uniform law. My point being that, as I say, the enthusiasm for it was that everything would be brought together under one statute, making it easier for all concerned. I think there may have been a comment to that effect possibly. I would have to re-read the second reading speech, but I think there was something to that effect said in one of the houses. I should say on the record on behalf of the opposition that that is a noble aspiration and one that we support because we want to make access to justice as efficient as possible. Therefore, having one place to work out what the evidence law is a noble aspiration. If it is the case, however, that a decision has been made by government to leave hanging in the realm of common-law decisions by the court certain rules with regard to evidence, it would be useful to have an explanation as to why the government has decided to do that in the case of some common-law rules, while seeking to codify others. The parliamentary secretary helpfully gave the example of the Longman decision or the clause that will remove the requirement for a Longman direction to be given. No explanation is required there. Clearly, in the absence of this bill passing, there would be a requirement to continue to have to provide that direction. If the bill passes, that will no longer be required. This bill will, if you like, expunge that common-law rule. But in terms of other rules that continue to apply, is there an explanation as to why we are not seeking to codify those particular rules?
Hon Dan Caddy: The member is absolutely correct. This is the biggest rewrite of the Evidence Bill. The bill is over 100 years old in its original form. The member is absolutely right to say there was some excitement around the legislation. The whole idea was to redo the act from the ground up and create, as the member said, a substantial act in which everything is found.
I want to clarify that codifying the law was one of a number of policy issues, obviously. Another was uniformity with other uniform jurisdictions. Obviously, there is more in this act than there was in the previous act; we only need to look at the size of it and the number of clauses in it. This act will contain significantly more rules of evidence than the current act. The act is not intended to be a code once enacted. That goes to what I was saying before; it sits where it sits. Clause 19 specifically states:
This Act does not affect the operation of a principle or rule of common law or equity … except so far as this Act …
If enacted, this act will sit over the common law. When it is incompatible or absurd for common law to continue to operate, obviously the act will prevail. However, if it does not touch on an issue and the common law does, the common law will continue to apply. In this aspect, we have done our best to take the same approach as the other uniform jurisdictions in the creation of this act.
Hon Nick Goiran: Is the parliamentary secretary or the advisers aware of a common-law rule of evidence that presently exists in Western Australia—if there is none, that is fine; we will move on to clause 2—that will continue to exist because of clause 19, which allows for that to continue to exist and obviously would also allow the common law to continue to develop into the future, which the government has expressly decided not to codify by way of some other provision in the bill?
Hon Dan Caddy: I will give the member one example. There are aspects of the common-law legal professional privilege that are relevant to disclosing documents. The associated privilege that is in the bill—client legal privilege—only deals with claiming that privilege while giving evidence. That is one example. I think I already said that in an earlier answer. That is an example of exactly what the honourable member was referring to.
Clause put and passed.
Clause 2: Commencement
Hon Nick Goiran: There was some discussion about this clause during the second reading debate. The parliamentary secretary will note that clause 2(b) deals specifically with part 12, division 1. It all hangs on the commencement of the Aquatic Resources Management Act 2016, in particular, section 240. Has that section come into operation?
Hon Dan Caddy: Not that I am aware of.
Hon Nick Goiran: I think that needs to be checked. Clause 2(c), "Part 12 Division 17", hangs on when section 158 of the Privacy and Responsible Information Sharing Act 2024 will come into operation. Has that section come into operation?
Hon Dan Caddy: Once again, not that I am aware of.
Hon Nick Goiran: I certainly agree with the parliamentary secretary with regard to the Privacy and Responsible Information Sharing Act 2024 but I would like to encourage verification with regard to section 240 of the Aquatic Resources Management Act 2016. Whilst that work may be getting done, the parliamentary secretary would be aware that I have an amendment standing in my name. I do not intend to labour the point because he kindly indicated in his reply that the government does not oppose the amendment. For the sake of other members, the amendment standing in my name seeks to ensure, consistent with a finding and recommendation made in the previous Parliament with respect to the previous package of bills, that there will be certainty with regard to the review clause. For those who are interested, the review clause in this particular instance can be found at clause 384. When read with clause 2, as it presently stands, it could mean that we would have the perverse effect when a government of the day never allowed the review clause to commence. I appreciate that that is not the intention of this government. There is no suggestion that that is the intention. Nevertheless, for Parliament to be able to have its way and ensure that certainly gets done, the amendment standing in my name would give effect to that. There is, of course, a later amendment at the review clause. That is a separate but related issue insofar as it would allow for two reviews to be done rather than one. The amendment that stands in my name, which I will move momentarily, simply seeks to ensure that the review clause will begin on the day after this legislation receives royal assent. For those reasons, I move:
Page 2, after line 8 — To insert:
(ab) Part 10 (but only section 384) — on the day after the day on which this Act receives the Royal Assent;
Hon Dan Caddy: I will just make a few comments on the honourable member's amendment. I understand that the honourable member is seeking to give effect to a recommendation of the 2024 Standing Committee on Uniform Legislation and Statutes Review report on the Evidence Bill 2024. Recommendation 4 of that report stated:
Subclause 372(1) of the Evidence Bill 2024 be amended to link the timing of review of the Act to the day on which the substantive provisions of the Act come into operation.
As I said, the government will be supporting this amendment; however, I want to draw to the honourable member's attention the effect the amendment will have on the utility and quality of the first five-year statutory review of the legislation. As has been indicated, the government expects time will be required to prepare for the implementation of the legislation. This is expected to be approximately 18 months after the passage of the bill. This is required for the training of legal practitioners, lawyers and others operating in the justice system or using evidence law in their day-to-day work; establishing the witness intermediary scheme; and preparing necessary regulations and rules of court.
I also note the bill has been drafted with the intention of coming into operation on a single date. Although the government intends for all the provisions to commence on the same date, the commencement of provisions on proclamation acts as a safeguard in the event particular provisions need to come into effect on different dates. This instrument exists and was a point explained in my second reading reply speech. With the review clause being tied to clause 2, the five-year anniversary of the legislation will be considered to commence the day that the legislation receives assent. This, given the time required to prepare for implementation and then proclaim the substantive provisions of the legislation, will likely mean that the first statutory review will take into account only the operation of the act over what may perhaps end up being a three or even three and a half year period. I wanted to flag this to the honourable member so expectations can be tempered in respect of what the first five-year statutory review may be able to deliver. Even five years is not a long time in the course of court proceedings, as the member especially would be well aware. Three and a half years means many matters operating under the new evidence legislation may not have concluded. Opportunities for refinement of the legislation's implementation and operation based on its real-world application in Western Australian courts may be limited.
The government will be supporting the amendments. These amendments mean that the bill, once it becomes an act, will be subject to three statutory review requirements. The first is the review requirement in clause 384. This provides that a review must be conducted as soon as practicable after the fifth anniversary of the legislation. The review report should be tabled in Parliament as soon as practicable after it is prepared, but no later than 12 months after the act's fifth anniversary. The second is the requirement in clause 385 that requires the operation of the recorded statement provisions of the legislation be reviewed between the act's second and third anniversaries. The third review requirement will be the one that is a result of this amendment. Clause 384 will be amended to provide that a review is required following the 10th anniversary of the act. That report should then be tabled in Parliament as soon as practicable after it is prepared, but no later than 12 months after the act's 10th anniversary.
Hon Nick Goiran: I think the parliamentary secretary has made some excellent remarks and I concur with his assessment. It is for that reason that in a later amendment, at clause 384, I have sought to ensure that indeed a second review takes place so that in effect, if we understand correctly, this will take the best part of 18 months to come into effect, and the first review will have the benefit of about three or three and a half years' worth of experience—and then, because that is arguably a short period of time, we can have confidence that there will be a second review a further five years later so that as a package we have the benefit, might I say, of two reviews rather than one as is currently proposed. We have the benefit of an early review and also the benefit of a latter review. I think it is the best of both worlds. It is one of those matters, ultimately, in which fair minds can disagree and where exactly you put the line in terms of the review—should it be two years, three years, five years et cetera? As I say, fair minds can disagree on this, but I am grateful that the government has indicated it does not oppose the amendment.
Amendment put and passed.
Hon Nick Goiran: Before we move off clause 2, parliamentary secretary, is there any further advice with regard to whether section 240 of the Aquatic Resources Management Act 2016 has come into effect?
Hon Dan Caddy: I am advised that section 240 of the Aquatic Resources Management Act is not yet in effect.
Hon Nick Goiran: When we look then at clause 2(d), it indicates that the bulk of this gigantic act that is before us can commence on a day fixed by proclamation, and different days may be fixed for different provisions. The parliamentary secretary has indicated, from what I can gather, that this has been included for flexibility purposes. Is there any provision that the parliamentary secretary can identify, or any part of the bill that might give cause for Parliamentary Counsel having drafted this in this fashion? The parliamentary secretary will be familiar with the fact that there are many bills in which it would say that the rest of the act will begin on a day fixed by proclamation—full stop. It will not then say "and different days may be fixed for different provisions". There have been many times that debates have been had and the word "flexibility" has been included. The problem I have always had with that is that if we draw that to its logical conclusion, we would always include that in every single bill. There would not be a bill in which we would not say that different days may be fixed for different provisions. Where it is justified is when government is able to identify particular points of concern. At the present time, I gather that there are no particular points of concern. Would there be a fundamental objection if there was an amendment moved to delete line 28 on page 2?
Hon Dan Caddy: The member asked about specific points of concern being the reason for the provision that might give cause for it being drafted in this fashion. I said in my second reading speech, I think, and certainly in my second reading reply, that the main reason was for flexibility. The member's point is taken about why do we not put it into all other acts, but as we have already outlined today, there is an 18-month implementation phase for this. A lot of work flows once the bill becomes an act, and we want that flexibility built in because, essentially, we cannot predict the future. We do not know whether something will come up during that implementation phase and we do not want the bill as a whole to be just completely blocked because of some unforeseen circumstance.
Clause, as amended, put and passed.
Clause 3: Terms used
Hon Nick Goiran: Deputy Chair, I have a small question on clause 3, and then, to assist your carriage of this matter, I can indicate that my next question will be on clause 6.
The parliamentary secretary indicated in response to an earlier question on clause 1 that one of the substantive matters that had been changed from the package of bills in 2024 to the bill that is presently before us was in clause 3, and particularly, if I recall correctly, he indicated that it was in the definition of "person acting judicially" that is contained on page 9 of the bill at lines 18 to 29. I invite the parliamentary secretary to clarify for the chamber what specific changes have been made to that definition.
Hon Dan Caddy: The member asked me what is the change, which I have already outlined, which was basically a change in the words. Is the member asking for the reason?
Hon Nick Goiran: By way of explanation, I understood that in the previous package of bills there was a definition of "person acting judicially". In this bill there is also a definition of "person acting judicially", but there has been a substantive difference. It may well be the case that there was not a definition in the 2024 bill. I just seek clarification on what precisely the change is.
Hon Dan Caddy: "Person acting judicially" is defined in clause 3 and always was. The words that have been added in at part (b) of the definition are:
(ii) a member of a House of Parliament or a committee of a House, or both Houses, of Parliament who, by law, has authority to hear, receive and examine evidence;
Hon Nick Goiran: I take it, then, that the exclusion of the State Administrative Tribunal from the definition that is presently before us was included differently in the package of bills. If you like, there are two classes of exclusions. One is "the State Administrative Tribunal or a member of the State Administrative Tribunal exercising the jurisdiction of the Tribunal"; the other is the parliamentary exclusion, which the parliamentary secretary has touched on. I take it that the State Administrative Tribunal exclusion was part of the package in 2024?
Hon Dan Caddy: Yes.
Hon Nick Goiran: Where does the Office of Criminal Injuries Compensation assessor sit in respect to these exclusions? Is the Office of Criminal Injuries Compensation assessor intended to be captured by this definition of "person acting judicially"?
Hon Dan Caddy: The Office of Criminal Injuries Compensation assessor mostly operates administratively, as the member would probably know. It is extremely rare, but they do occasionally hear evidence from live parties, and in that instance, yes, they would be captured. I also point out that the number of clauses in the bill that apply to a person acting judicially are extremely few—very few.
Hon Nick Goiran: The government has decided to carve out the State Administrative Tribunal, which also conducts, to use the parliamentary secretary's phrase, live hearings. Why the distinction? Why do we exclude the State Administrative Tribunal from this provision but include the criminal injuries compensation assessor?
Hon Dan Caddy: The State Administrative Tribunal was in part established to create a less formal, less expensive and more flexible procedure than traditional courts. Under the current act, the tribunal does not strictly apply the rules of evidence unless it chooses to adopt them. This position will not change under the bill. The tribunal will be able to benefit from provisions in the bill in situations in which it decides they will be beneficial. However, it is not bound to apply technical rules, for example, about the admissibility of documents et cetera.
Hon Nick Goiran: My point here is: Why would that same rationale not apply to the Office of Criminal Injuries Compensation assessor? If the argument here is to say that the State Administrative Tribunal was established to make it less expensive and more flexible, let us keep in mind that when it comes to the Office of Criminal Injuries Compensation assessor, we are talking about victims of crime, and they are making an application because of an individual having offended against them—offended in the sense that there is even a criminal conviction against the individual and the victim is now seeking some recompense as a result. Often, sadly, individuals who seek this compensation are victims of violent sexual offences. I stand to be corrected: I do not think that the State Administrative Tribunal is dealing with a plethora of individuals who have been victims of sexual violence. If the argument here is that the State Administrative Tribunal, worthy and noble as it is, should have some kind of less expensive, more flexible regime, I think that the same rationale should apply to the criminal injuries compensation assessor, and I seek an explanation as to why we are creating a distinction between the two.
Hon Dan Caddy: The member questioned why it does not apply to the criminal injuries compensation assessor, or why there is a difference. Section 18 of the act that governs the assessor says:
(2) In deciding a compensation application an assessor is not bound by rules or practice as to evidence…
The way the Evidence Bill works when it crosses over with other bills is that it is, certainly in this case, subordinate to that act.
Hon Nick Goiran: In other words, the parliamentary secretary is indicating to the chamber that by virtue of the special provision in the Criminal Injuries Compensation Act 2003, the philosophy still flows through that the criminal injuries compensation assessor is not bound by those rules of evidence, much like the State Administrative Tribunal. Is there a like provision in the legislation that creates the State Administrative Tribunal?
Hon Dan Caddy: Yes. The Office of Criminal Injuries Compensation is not a tribunal. The State Administrative Tribunal obviously is and it was thought that, because of that fact, we would make it abundantly clear that it does not apply to the State Administrative Tribunal. That is the short answer.
Hon Nick Goiran: I do not think we will make any further progress, but perhaps the parliamentary secretary can empathise—even if not, maybe sympathise—with the fact that I am not really persuaded about this particular provision. If we are going to go out of our way and expressly carve out the State Administrative Tribunal from the definition of "person acting judicially", then there has to be a rationale for it. I do not think the rationale can be "because it has got the word ‘tribunal’ next to it," because we have other tribunals that are not mentioned.
If we are then looking for similar organisations like the criminal injuries compensation assessor, who hears evidence, and we say that that is not going to be excluded because it has got a special statutory provision, then that is not satisfying as an explanation because we now know that the State Administrative Tribunal has a similar provision. So, I do not expect that we will make much more progress with respect to this, but I would get it on the record now, because this is exactly the type of thing that I would like people to look at in five years' time when there is going to be a review of this particular act. Let us look at the definition of a person acting judicially and make sure that it is consistent.
While we are looking at that, another body that receives evidence, including in hearings, is WorkCover. Injured workers will seek to exercise their rights under the workers compensation legislation. Is it intended that decision-makers at WorkCover would be captured by this definition of a person acting judicially?
Hon Dan Caddy: I will answer the member's substantive question in a minute, but I want to go back and make the point—we are very caught up on a person acting judicially. There are very few clauses within the bill that this applies to. There are so few that I am going to read them out: clause 187, "Effect of evidence certificate"; clause 189, "Effect of disclosure certificate"; clause 328, "Judicial notice to be taken of Australian laws"; clause 332, "Presumption as to authenticity of official publications"; clause 333, "Presumption as to regularity of acts notified in official publications"; clause 334, "Presumption as to authenticity of Parliamentary documents"; clause 335, "Presumption as to authenticity of Commonwealth records and public documents"; clause 336, "Presumption as to authenticity of copies, extracts and summaries of public documents"; clause 337, "Presumption as to the authenticity of official seals and signatures"; clause 338, "Proof of public documents of other States or Territories"; clause 339, "Proof of public documents relating to judgements, acts and processes of courts"; clause 340, "Proof of official statistics"; clause 347, "Proof of foreign documents admissible in foreign countries"; clause 369, "Impounding documents"; and, finally, clause 409, "Continuation of orders, directions, leave and other things done under former Act".
With regard to the member's question about workers compensation legislation and whether a similar clause appears in that bill, I am informed that it is clause 336.
Hon Nick Goiran: I make the observation that the parliamentary secretary says that it is not a long list of clauses, but that was quite a long list that he provided to the house. In fact, there were so many clauses there that we have had bills passed through this house that have had fewer clauses than what was just read. I do not think that it is persuasive to say that there are not many clauses that are impacted by this. First of all, I think there are quite a few clauses for the reasons I just gave. But, again, fair minds might disagree about that. We cannot then just say, "Well, there are not that many clauses so therefore it's not really a big deal." I appreciate the member did not say, "It's not a big deal." That is me taking some literary licence.
We have gone out of our way here to change the definition of "person acting judicially" from the last package of bills because of the work of the Standing Committee on Uniform Legislation and Statutes' review. The government has gone out of its way to also carve out the State Administrative Tribunal. If we are going to do all of that to specially, if you like, protect the State Administrative Tribunal and especially to protect Parliament, despite the fact that the State Administrative Tribunal has its own statutory provision—
Committee interrupted, pursuant to standing orders.
(Continued at a later stage of the sitting.)
