Hansard

Bills

Evidence Bill 2025

Committee of the whole

Resumed from 10 September. The Chair of Committees (Hon Steve Martin) in the chair; Hon Dan Caddy (Parliamentary Secretary) in charge of the bill.

Clause 25: Compellability: foreign sovereign and others

Progress was reported after the clause had been partly considered.

Hon Nick Goiran: We are currently considering clause 25. This deals with the compelling of a foreign sovereign and others. Yesterday, prior to the adjournment pursuant to standing orders for the taking of members' statements, we were considering this clause and its subclauses dealing with scenarios of whether somebody is compelled to give evidence in a hearing. The context here is that clause 22 specifies that every person who is competent to give evidence about a fact is compellable to give that evidence. There are, of course, certain circumstances that are an exception to that, in which somebody might lack capacity in their competence or have reduced capacity. Then there is this situation that we are dealing with at clause 25 about the foreign sovereign and others. The point I made yesterday was, in particular, to draw to members' attention that they themselves, the 37 members of this chamber, are impacted by clause 25(3), which states:

A member of a House of an Australian Parliament is not compellable to give evidence if the member would, if compelled to give evidence, be prevented from attending —

(a) a sitting of that House or a joint sitting of that Parliament; or

(b) a meeting of a committee of that House or that Parliament, being a committee of which the person is a member.

The clauses that follow deal with judges and jurors in which there is an accused and co-accused with a differing approach taken depending on whether the co-accused is being tried jointly. There are also provisions that follow dealing with spouses and their compellability to give evidence, and witnesses in public revenue cases. I foreshadowed yesterday that the next clause that I would like to examine once we are finished with clause 25 is clause 29, dealing with witnesses in public revenue cases. Before we do that, I had foreshadowed that this whole issue of compellability and its intersection with exceptions for members of Parliament in certain circumstances, including in committee hearings, reminded me of an episode that occurred in the 41st Parliament. I had begun drawing members' attention yesterday to report 90 of the Standing Committee on Estimates and Financial Operations, which was tabled in November 2023. In particular, I was drawing to members' attention paragraphs 6.10 to 6.13, found at page 21 of that report. This dealt with the non-appearance at a hearing of the Chief Assessor of Criminal injuries Compensation. What happened there is that the Standing Committee on Estimates and Financial Operations requested that the chief assessor appear at a Department of Justice hearing on 16 June 2023 and the chief assessor did not attend.

When that happened, as we can see in this report at paragraph 6.11, the Standing Committee on Estimates and Financial Operations resolved to hold another hearing to take place on 9 August 2023. The committee requested that the chief assessor and the director general appear. Note here that unlike the language in this clause and the clauses under part 2, division 1, which outline compelling a person to give evidence, the language used in the committee report is that those individuals, or the chief assessor in particular, were requested to attend. One might say that a courtesy was extended by the parliamentary committee to this witness requesting that the person attend, but not compelling the person to attend this particular committee hearing. What is then recounted in the committee report is worth noting. The committee states that the chief assessor advised:

I have been informed an invitation to attend the Standing Committee on Estimates and Financial Operations in August 2023 has been extended to me through the Deputy Director General of Court and Tribunal Services and thank you for the invitation.

However, I decline the invitation as the business of the Standing Committee is not within the ambit of the operations, roles and responsibilities of the Chief Assessor as set out in the Criminal Injuries Compensation Act 2003.

What we have here is a standing committee of Parliament requesting a witness to attend. In this particular instance, the Chief Assessor of Criminal Injuries Compensation was requested to attend not once, but twice, and then the chief assessor sent a letter saying that she declines.

Back to this clause, dealing with the compellability of, specifically, foreign sovereign, we see that they are not compellable to give evidence. It also says here that a member of Parliament is not compellable to give evidence—not in all circumstances, but only if the circumstances are such that it would prevent a member from attending a sitting or a joint sitting of Parliament, or indeed, a committee member meeting of which that individual is a member of that committee. In those circumstances, the person would not be compelled. I note that, in this section, there is no reference to the Chief Assessor of Criminal Injuries Compensation or special privileges given to that individual to be able to say that they decline to attend. We are currently considering clause 25, but I note that clause 26 states:

(1) A person who is a judge or juror in a proceeding is not competent to give evidence in that proceeding.

(2) However, a juror is competent to give evidence in the proceeding about matters affecting the conduct of the proceeding.

(3) A person who is or was a judge in an Australian or overseas proceeding is not compellable to give evidence about that proceeding unless the court gives leave.

When I examine these clauses, specifically in part 2, division 1 of the bill, dealing with witnesses, it would seem to me—I get to my point and my question to the parliamentary secretary at this time—that the Chief Assessor of Criminal Injuries Compensation is captured by part 2, division 1 because she is a person who is competent to give evidence about a fact and compellable to give that evidence. It seems to me that there is no special provision here for the chief assessor. My question, parliamentary secretary, is two-fold. First of all, is it the case that the Chief Assessor of Criminal Injuries Compensation is a person who is able to be compelled to give evidence at a hearing? Secondly, is there anything in the bill that would prevent a parliamentary committee from compelling the chief assessor to attend a parliamentary hearing? To be clear, before the parliamentary secretary takes advice on this, I am making a distinction at this time between a hearing and a parliamentary hearing. My first question is whether the chief assessor is a person who is competent to give evidence about a fact and therefore compellable to attend a hearing. Secondly, is there anything in the bill that would prevent a parliamentary committee from compelling the chief assessor to attend a hearing?

Hon Dan Caddy: This bill obviously governs hearings in court and tribunals; it does not cover hearings that are part—

Hon Nick Goiran: Not the State Administrative Tribunal.

Hon Dan Caddy: Basically. I thank the member for the correction there. Parliamentary procedures are governed by standing orders, as the member knows. That sort of answers the first part of his question. With respect of the member's specific question: Can the chief assessor be called? Yes, she can be called to hearings governed by this bill. As far as a parliamentary hearing goes, the answer is no.

Hon Nick Goiran: Let us deal with the second of those. When the parliamentary secretary says no, to be clear, is there nothing in this bill that would prevent the chief assessor from being compelled to attend a parliamentary hearing? The parliamentary secretary is saying that the bill does not impact upon parliamentary proceedings.

Hon Dan Caddy: By way of interjection, the standing orders are what govern that.

Hon Nick Goiran: Is there nothing in the bill that prevents the assessor from being compelled to attend a parliamentary hearing because the bill does not impact upon parliamentary hearings?

Hon Dan Caddy: If I may, the member is correct. There is nothing in here that prevents it, but there is nothing in here that allows it either. The bill is silent on this.

Hon Nick Goiran: I accept that. I accept that there is nothing in the bill here that would compel the chief assessor to attend a parliamentary hearing, but the point is that we are not doing anything here that might prevent the committee from compelling the chief assessor to attend, assuming that the committee wanted to do that, and assuming that the committee had the power to do that under its standing orders.

That being so, I am happy to leave that point there. But I want to seek clarification on the chief assessor being able to attend hearings. For example, the member might be aware that there was a highly controversial incident in which a District Court judge made certain remarks impacting upon the conduct of the chief assessor and one of the other assessors. I have spoken about this previously and it is on the parliamentary record. Today is not the day to relitigate those issues. They are on the public record. There is a District Court judge who called into question the conduct in the Office of Criminal Injuries Compensation. I think that is a fair and accurate statement of fact. It is on the record and those who might not be sure of that can reflect on that record.

If it were the case that there were legal proceedings on foot in a court and a District Court judge wanted to satisfy himself or herself with respect of matters in the purview of the chief assessor, I take it that it would be possible for the chief assessor to be compelled to attend before a court to give evidence in those circumstances. The point being, there is no special carve out for the chief assessor. I know I have made quite a bit of a point about the chief assessor, but as the parliamentary secretary would be aware, the chief assessor is what is referred to as a quasi-judicial officer. I want to make sure here, and let it not be confused that I am not only concerned about the chief assessor, I am merely using that as an illustration for quasi-judicial officers. There is clearly a provision dealing with judges, which follows at clause 26.

To bring me to my question, is there anything in part 2 division 1 or indeed in any other part of the bill that might exempt a quasi-judicial officer from being compelled to give evidence in the same way that there are provisions in this part and division that prevent a foreign sovereign, a member of Parliament, a judge or a juror from being compelled in certain circumstances to give evidence?

Hon Dan Caddy: The short answer is no. Obviously, clause 26(1) states:

A person who is a judge or juror in a proceeding is not competent to give evidence in that proceeding.

That obviously means that in other proceedings, if someone who is a judge is required for whatever other reasons to give evidence, they may well be called.

Hon Nick Goiran: I thank the parliamentary secretary for that response. With his indulgence, I think it is still useful to continue to use this as a package of clauses considered in context. As I have already indicated, the next substantive one I want to look at is clause 29. Looking at that issue of judges, the parliamentary secretary will see that at clause 25, which we are on at the moment, there are limited circumstances in which a member of Parliament can exercise some form of immunity from being compelled as a witness. There are limited circumstances. They would have to be able to demonstrate that it would prevent them from attending a sitting of Parliament, a joint sitting of Parliament or a meeting of a committee.

As the parliamentary secretary just pointed out, it seems that the only circumstances in which a judge is not able to be compelled is if the matter on foot is about the proceeding over which they are obviously presiding. Is there any explanation as to why, necessarily, a judge would be compelled to attend another hearing when a judge might be scheduled to attend a different hearing? Judges have hearings scheduled all the time, as we do as members of Parliament.

We already know that we are due to be here next Tuesday, Wednesday and Thursday. The parliamentary secretary and I would not be able to be compelled to give evidence in a hearing next week on Tuesday, Wednesday or Thursday. I know the parliamentary secretary is very busy because he is on a lot of committees, in particular. He could be compelled to attend on Monday or Friday next week, depending on what his committee schedule looks like. Judges also have hearings scheduled for next week. Why is it that judges do not have the same, if you want to call it, privilege of being immune from being called as a witness in hearings and compelled to do as a member of Parliament?

Hon Dan Caddy: If a judge is called to appear in another proceeding, that judge would be treated like if any other witness was called. If there is a conflict, it is managed around the availability of witnesses. An example may be that a surgeon may get a summons and request through process for that summons to be put aside until such time as they are available and can make themselves available to the court.

Sitting suspended from 1:00:00 pm to 2:00:00 pm

The Deputy Chair (Hon Andrew O'Donnell): Members, we are dealing with the Evidence Bill 2025 and the question is that clause 25 stand as printed.

Clause put and passed.

Clause 26: Competence and compellability: judges and jurors

Hon Nick Goiran: Parliamentary secretary, I had indicated that my next round of questions would be on clause 29, but given the discussion we have just had on clause 25, I want to close the loop on the issue about judges. Where we landed was with an indication from the parliamentary secretary that if a judge were compelled to give evidence at a hearing, the judge would be treated in the same way as any other witness. In particular, we were talking about a scenario in which the judge had competing court commitments and court hearings, and the parliamentary secretary provided a useful example of a surgeon who might have certain requirements. Is it the case that a judge being compelled to be a witness would be subject to the discretion of the court in terms of their availability in contrast to a member of Parliament, for whom there would be no discretion of the court?

Hon Dan Caddy: Yes.

Hon Nick Goiran: On my earlier point on clause 25, why are we treating members of Parliament differently from judges? A member of Parliament will automatically be immune from being compelled to give evidence at a hearing in those certain circumstances. What is the rationale for a member of Parliament being treated differently from a judge?

Hon Dan Caddy: This particular clause is—I have said this before about other clauses—part of the uniform legislation. It is a central clause on competency and compellability of witnesses. As I said earlier, the default position is always to adopt the uniform legislation when we can. I will leave it at that, unless the member wants further explanation.

Hon Nick Goiran: Is clause 26, at page 27 in the bill presently before us, a mirror image of section 16 of the Commonwealth legislation?

Hon Dan Caddy: It is not identical, but the words are identical. It is just that under drafting practice here, we have split two paragraphs in the Commonwealth legislation into three paragraphs in our legislation.

Hon Nick Goiran: I thank the parliamentary secretary for that clarification. Can the same be said for clause 25, which we have just dealt with and relates to members of Parliament?

Hon Dan Caddy: The short answer is, no, it is not the same. In clause 25 of the bill that we are debating, the persons who are not compellable are a foreign sovereign and the head of state of a foreign country. Section 15 of the Commonwealth act lists the Governor-General, the Governor of a state and the administrator of a territory. The bill has a shorter list of persons who are not compellable to reflect the egalitarian principle in Australia that all are equal before the law and out of recognition that the Governor-General, the Governor and the administrator of a territory may still have relevant evidence to give in court proceedings.

Hon Nick Goiran: Does the Commonwealth provision in section 15 deal with an exemption for members of Parliament?

Hon Dan Caddy: Yes.

Clause put and passed.

Clauses 27 and 28 put and passed

Clause 29: Compellability: witnesses in public revenue cases

Hon Nick Goiran: This clause deals with the compellability of witnesses in public revenue cases. What is the necessity for this special rule of evidence in public revenue cases?

Hon Dan Caddy: This clause is drawn from the 1906 act, specifically section 12. It is in the original act, so it is a very longstanding provision. The clause's policy objectives are to ensure that schemes or arrangements for evading duty or defrauding the state of tax are exposed and that money payable to the state is recovered. On balance, this is a higher priority than successfully criminally prosecuting an individual who had involvement in the scheme. The ability to compel a person to give evidence is balanced by clause 191, which provides that a person who is compelled to give evidence may object on the grounds that it may incriminate them. If the court agrees that the evidence may incriminate the person, it may still require them to give evidence, but it must give them an immunity certificate.

Hon Nick Goiran: The justification for including this special rule of evidence in public revenue cases found here at clause 29 is that we are maintaining the status quo and that it is consistent with Western Australian law in the Evidence Act 1906, in particular section 12. Are there changes in clause 29 compared with section 12 of the existing law?

Hon Dan Caddy: Yes, there have been changes. The bill is drafted very differently than the act, which was drafted almost 120 years ago. The drafting technique used in clause 29 is different, but it will essentially achieve the same outcome as section 12 of the act.

Hon Nick Goiran: I make this observation in passing. Our friends at the Parliamentary Counsel's Office will be well aware of this. There is, of course, a danger in changing language. The intent—it is good that the parliamentary secretary put it on the record—is that there is no change, notwithstanding the change of language and drafting technique. It is intended that the way section 12 is applied will continue. The experts in drafting will be well aware of that. They obviously feel that the risk is worth taking for the sake of the greater aspiration of the new modern drafting technique. That said, obviously the government decided that this special rule of evidence in public revenue cases is so important that it has been imported in this bill, notwithstanding that it is not contained in the uniform law. For whatever reason, the other jurisdictions do not feel the necessity to have this special rule of evidence in public revenue cases. We in Western Australia have had it for a substantial period and we wish to retain it, as is our right, which is precisely why, might I say, the applied method of legislation on uniform schemes is, generally speaking, preferred by this Parliament and this house to mirror legislation. We may have discussions about that at a later stage in respect of other bills. My question is: Given that the government has said that this special rule of evidence in public revenue cases is so important that we must retain it and insert it in clause 29, notwithstanding the fact that the other jurisdictions do not do so, does the government have any available data on the extent to which this particular provision, that is the existing law at section 12, has been relied upon?

Hon Dan Caddy: To answer the member's question, no data is available. We do not have that data. I want to go back to the previous question because I want to correct or clarify something that I said. The intent of this clause is to do exactly what section 12 of the 1906 act does. The public interest test has been added to provide guidance to the court. That is a small difference, but it is a difference, nonetheless.

Hon Nick Goiran: Who advocated for the addition of this public interest test?

Hon Dan Caddy: It was not the result of any particular application or advocacy. It came from PCO. It is more to do with consistency across the bill. Other clauses in the bill—I can name them if the member wants me to—include a public interest test. The best way to describe it is that it is an addition from PCO.

Hon Nick Goiran: It has not come about from advocacy from external groups and agencies within government. It has come about because Parliamentary Counsel evidently recommended to government that it should be included for the reason of consistency with other elements in the bill. Can the parliamentary secretary provide any information as to why Parliamentary Counsel has recommended it? Is it, for example, the result of a particular case that caused reason for concern? Why has this suddenly come about?

Hon Dan Caddy: Clause 29 links very closely with, for example, clause 191, which contains a public interest test. As I said before, it was put in the bill by PCO. The backwards and forwards conversations between the instructing officers and PCO resulted in what is believed to be the best way to draft this clause.

Hon Nick Goiran: I am not presently persuaded about the rationale of this. I am really looking for an explanation as to why the government decided to change the status quo. I will take us through the sequence of events. The primary purpose is to have one statute that everyone can refer to in Western Australia, which is the evidence law as it currently stands. We already had a discussion to accept that it does not impact upon case law being developed. It is otherwise intended to be a one-stop shop. Its primary basis is the uniform law that has been adopted by the Commonwealth and, I think yesterday the parliamentary secretary indicated, in New South Wales, Victoria and Tasmania. Once Western Australia comes on board, it will simply be a case of Queensland and South Australia having their own standalone evidence law.

Western Australia, as is our wont, also wants to retain certain elements that we say are important. At this juncture, at clause 29, the parliamentary secretary indicated to the house that the government would like to retain the existing law, this special rule of evidence in public revenue cases, which already exists and is found in section 12 of the 1906 act. To be clear, I am persuaded and satisfied with that explanation. I am not yet persuaded about the rationale for this new inclusion of public interest test. It is clear that the origin of it is Parliamentary Counsel's Office, except it is clear that it is not from an external provider, it is not from the Director of Public Prosecutions, it is not from police, it is not from the Law Society, it is not from anybody else. It is PCO that has said we should have this public interest test.

The parliamentary secretary has then drawn helpfully to my attention the fact that this particular provision ought to be read in conjunction with clause 191. Clause 191 is entitled "Self-incrimination: witnesses in public revenue proceedings" and it begins at subclause (1) to say:

A person who is required by a court under section 29—

Which I might note is what we are dealing with at the moment—

to give evidence in a proceeding to which that section applies may object to giving evidence, or evidence on a particular matter, on the ground that the evidence may incriminate the person.

Clause 191 continues all the way to subclause (7) and it ends with a note saying to compare it with section 13 of the Evidence Act 1906. I will take this matter further and, to be clear, the primary purpose of this line of questioning is to understand the rationale for the change, the inclusion of the public interest test in the existing rule of evidence for public revenue cases. That is ultimately what I would like to find out. In the absence of being able to provide that information now, is the parliamentary secretary able to indicate whether clause 191, which is the one that we are reading in conjunction, is a mirror image of section 13 of the Evidence Act 1906?

Hon Dan Caddy: I will answer the member's question as best I can. He is right. The primary purpose of this, as he said in his opening statement, is to have one statute that everyone can go to. Obviously, clause 29 marries up with clause 191 and clause 186, and those clauses are to do with immunity certificates that cannot be used in revenue cases like this, but in other cases. It was identified by the instructing officers that section 12 of the original act was deficient in that it did not give any guidance to the court. The instructing officers look for an appropriate test that would be there to give guidance to the court. That is for clause 29. If we go back to clauses 186 and 191, which is mirrored in the Commonwealth legislation, the Commonwealth legislation has these sorts of tests in it. It is about bringing things over from the Commonwealth legislation and applying, placing or inserting them into the bill where it is felt they are needed.

Hon Nick Goiran: At clause 191, the note at the bottom states:

Compare:

Evidence Act 1906 s. 13

That is a reference to the WA act, not to the Commonwealth act. Is clause 191 a mirror image of section 13 in the 1906 act?

Hon Dan Caddy: No.

Hon Nick Goiran: We need to get to the bottom of that. Proposed section 191 is not the same as the existing law. We also know that clause 29, which is the one that we are on at the moment, is also not the same as the existing law. To the extent that the existing law has changed at clause 29, we have been told it is because of the inclusion of this public interest test. We have been referred to clause 191, and we also find out that it is not the same as the existing law. Again, the purpose of this line of questioning is to understand the rationale. Why has PCO said that it is desirable or necessary for this to take place?

As I said earlier, I can understand the desirability of retaining an existing special rule on public revenue cases in circumstances in which it has been in place for some time. Ideally, it would be great if there were some data to support the fact that this existing rule of evidence on the compellability of witnesses in public revenue cases is actually being used. Otherwise, we are having a whole discussion about something that has never been used in the time that it has been in the act, and we are now transporting it across to the new act in which it will probably never be used. It may well be the case that it is being used. The point the parliamentary secretary indicated earlier is that there is no data available on that, and I accept that and have no intention to take that further, other than to simply say that ideally it would be good if that data was available. Be that as it may, what is available is information that PCO has been driving this new public interest test.

Hon Dan Caddy: It has been conversations between the instructing officers and PCO. I used "PCO is driving it" to indicate that it was not an external agency or lobbying from any other external agency.

Hon Nick Goiran: I think that is a helpful interjection by the parliamentary secretary and I thank him for it. Is it fair then to say that the Department of Justice in consultation with Parliamentary Counsel's Office have together determined that it would be desirable that we have this public interest test?

Hon Dan Caddy: Yes, it would be fair and reasonable to say that. I go back to the two guiding principles. One is that it is uniform legislation. As we have said before, we try to keep as much of it either identical or as consistent with the uniform legislation as we can. For this other clause, it is about replicating the purpose and the outcome from the original clause, but in today's language, written the way we would write a bill today.

Hon Nick Goiran: I might tackle this another way. The parliamentary secretary indicated that this is an existing law; in other words, we have a special rule of evidence in these public revenue cases, and we wish to retain it in Western Australia. We have already determined that no data is necessarily available on its usage; at least, it is not available today. But is it the case that the existing law as it is applied on a case-by-case basis includes a public interest test? When we apply the existing section 12 law, does a public interest test already exist and we are therefore just codifying the way that the provision is currently being applied?

Hon Dan Caddy: As I said before, we have no data on this, but I can say the advice is that—this is based on anecdotal evidence, given we do not have the data—this is seldom used, and there may not be any case law on it that we can refer to.

Hon Nick Goiran: I appreciate the authenticity and the parliamentary secretary's transparency on this. It makes me more and more curious as to why we are bothering with it. I appreciate that the parliamentary secretary was careful in his choice of language to say that he is advised that it is most probably seldom used. That is not to say that it is never used. I accept that he does not have the data, and that is no criticism whatsoever. As I say, I am really just trying to get to the bottom of this. Individuals have made the conscious decision to deviate from the uniform law, and that deviation is to include this special rule of evidence for witnesses in public revenue cases. The case is made that we are simply maintaining the status quo. Okay—that is not necessarily a reason for it to be included, but it is a reason, and I am happy to move on from that.

It is more this new issue that has emerged that, in addition to that, the same group of individuals who have said that it is very important that we include this have also said, "While we're at it, we'd like to include this public interest test", yet it is not clear why that has now emerged as a reason. I have asked whether a case has occurred in the courts that has drawn this to members' attention. In the parliamentary secretary's earlier explanation, I think it was said that it was identified that the existing provision does not provide guidance to the court. It follows from that that the government feels that the courts would benefit from guidance in this respect, yet it does not seem like anybody has necessarily asked that the courts be provided with guidance or that there has been some form of appeal specifically on this point in which individuals have said, "This is a problem, the court has misapplied this particular rule in a public revenue case; the court has failed to apply a public interest test when applying this particular special rule." It is the lack of clarity on that that troubles me—modestly.

I want to move on. I appreciate we have a lot of clauses to get through, and I do not think I can necessarily take this any further than I have, but I would invite the parliamentary secretary, if there is any further information that he can provide to the house, to satisfy the question: Why have we decided that it is now necessary to provide this guidance to the court on a public interest test with respect to this special rule in public revenue cases?

Hon Dan Caddy: I can only go back to what I have already said and try to build on that. Notwithstanding the fact that the idea is to mirror the outcomes that we had before, we are going back and comparing this bill with an act and with wording that was drafted nearly 120 years ago. If we go to the Commonwealth legislation—in fact, not just the Commonwealth legislation that this is mirroring, but legislation across the board—we often find in modern legislation an interest of justice or public interest test. That is far more common than it was 120 years ago, if it existed at all. The member may well know about that better than I do.

Hon Nick Goiran: I wasn't around in those days!

Hon Dan Caddy: No, I think you are younger than me, member, but I am talking about the member's professional background. I would make another point, as well. We have sort of gone back and forth on whether this clause is used often and whether we have any data on it. It has been identified that this is likely to be a clause that is seldom used. It would not be deemed helpful, and, in fact, it may be deemed unhelpful, to leave the court clueless—I do not want to use the word "clueless", but that is probably the best way to put it—or to not give the court guidance for the one or two occasions in the next 50 years that this clause may be pertinent to something that is being heard.

Hon Nick Goiran: Clause 29(1) reads:

This section applies to the following proceedings —

(a) a proceeding for a contravention of a provision of the Duties Act 2008;

I appreciate that the parliamentary secretary indicated that he did not necessarily have any data on the utilisation of section 12 of the Evidence Act 1906. Is there any information available to the house on the number of proceedings for a contravention of a provision of the Duties Act 2008?

Hon Dan Caddy: We do not have it, and I do not think that will surprise the member, given the question he has asked. I am informed that it may be possible to get it, but no, we certainly do not have it at the table.

Clause put and passed.

Clauses 30 to 56 put and passed

Clause 57: No direct cross-examination of certain witnesses by unrepresented accused

Hon Nick Goiran: As we rapidly make progress into this bill and now move to clause 57, I draw the parliamentary secretary's attention to clause 57(1)(d) and ask: Which class of witness is intended to be prescribed under that provision?

Hon Dan Caddy: I am informed that there is currently no intention to prescribe any further classes.

Hon Nick Goiran: Clause 57 is said to be comparable to section 106G of the 1906 act. Does a similar provision exist in the current act to prescribe certain witnesses as not able to be cross-examined by an unrepresented accused?

Hon Dan Caddy: The answer is no.

Hon Nick Goiran: All right, so help us here now, parliamentary secretary. The existing law does not have a provision to prescribe other witnesses who are not to be cross-examined. It does not have that at the moment. The proposal at clause 57(1)(d) is to now insert this provision for the first time. When asked, the parliamentary secretary indicated that there is no intention at present to prescribe such individuals or classes of witnesses, so why are we doing this? Is there an objection to deleting lines 7, 8 and 9 at page 50?

Hon Dan Caddy: This provision has been included to futureproof the bill should a class that would be picked up by subclause(1)(d) be identified in the future.

Hon Nick Goiran: The parliamentary secretary indicated, or perhaps I did, that this clause is based on section 106G of the Evidence Act 1906. The very fact that it is section 106G may be indicative of the fact that it is a provision that was inserted into the Evidence Act sometime after 1906. It may not be a provision that has been in there since 1906. Can the parliamentary secretary indicate to us for how long has Western Australia had a provision of this sort?

Hon Dan Caddy: By way of interjection, member, that was inserted in 1992.

Hon Nick Goiran: It was in 1992, okay. Since 1992, we have had this provision in the Evidence Act of our state, which indicates that there are certain individuals who are not to be directly cross-examined by an accused who is not legally represented. I take it, then, parliamentary secretary, that the classes of such individuals who have not been able to be directly cross-examined by an accused since 1992 have been a child, as per proposed section 57(1)(a); and, in addition, the complainant in a proceeding for a sexual offence; and, in addition to that, the complainant or any witness for the prosecution in a proceeding for a criminal or identified organisation offence. Therefore, I am now seeking confirmation from the parliamentary secretary that since 1992 there have been what I would describe as three classes of witnesses who have not been able to be directly cross-examined by an accused who is not legally represented.

Hon Dan Caddy: We are just looking at that. Obviously, there have been subsequent amendments to the act, so we are just making sure that, as the member stipulated, since 1992, what is there and what has come in at what time.

Hon Nick Goiran: Thank you.

Hon Dan Caddy: I can say with confidence that the list the member read out has been in the act since 2012, possibly earlier. But without going through every iteration, which obviously would take some time, I hope that that answer satisfies the member's line of inquiry.

Hon Nick Goiran: It does because the point now is that these three classes of witnesses have been in the law of Western Australia for the last 13 years as a minimum. It might actually be 23 years, but I do not think it matters to the point that I am making whether it is 13 years or 23 years. The point is simply this: as a matter of law, there are certain classes of witnesses that cannot be, and quite rightly so, cross-examined by an accused who is unrepresented. There are three classes—a child. We do not want a child to be cross-examined by an accused who is not legally represented. We can understand the reasons for that, not the least of which are the duress, the undue influence and the power imbalance in that particular situation, and that is ameliorated somewhat by the fact that the accused is legally represented, because the legal representative is an officer of the court and is held to a higher standard in terms of their legal representative behaviour, including on the cross-examination. Therefore, it is an appropriate rule of law that has been in place in Western Australia for at least 13 years, and I suspect longer than that.

In addition to that, the second class of person who is immune from being cross-examined by an unrepresented accused is the complainant of a sexual offence, and for similar reasons to what I have just given with respect to a child, we can understand why that is an appropriate rule of law.

The third class that is immune from cross-examination by an accused who is not legally represented is the complainant or any witness for the prosecution in a matter that is described as a "criminal or identified organisation offence". The types of individuals who are usually involved in those types of matters are, as I recall, what might be described as outlaw motorcycle gang members and the like. Again, one can understand why, due to intimidation tactics and the like, we do not want an unrepresented accused to cross-examine a witness in those circumstances. My point is that that has been the state of the law for at least the last 13 years. For the duration of that time, there has been no power for the government to be able to add extra classes by way of regulation and executive signature. This will be the first time this special power will be granted by the Parliament to the executive to start including other witnesses and classes of witnesses. An explanation has been asked for why we are doing this for the first time ever, and the explanation was that there is not an intention to include any further classes of witnesses, and that it is desirable to have that in there for futureproofing purposes. That troubles me. If the only explanation for lines 7 through to 9 on page 50 of the bill is that it is for futureproofing purposes, then on that logic, every single clause in this bill should have a regulation-making power so that the government can go and change it whenever it decides to, for futureproofing purposes. That, of course, would be an absurdity, so I invite any final submissions the parliamentary secretary might like to make as to why we should retain lines 7 through to 9, because in the absence of that, I am inclined to move to delete them.

Hon Dan Caddy: I will go back in history, to 2012. In 2012, we needed to add the gang crime category. There was no regulatory power within this, so that had to be done through an amendment to the act. That particular thing has influenced the thinking on this. It is not out of the ordinary to do that, but if we are futureproofing it—and I used that word maybe inadvisably, but that is what it is—and we are looking at categories of protected people, we ought to be able, as a government, regardless of who is in government, to add categories of protected people more easily than by having to go back to Parliament as a whole and move legislation, albeit amending legislation, to add something in. The member asked why this is not in every clause of the bill. This clause deals specifically with that issue, and that is why it is included at this juncture in the bill.

Hon Nick Goiran: I thank the parliamentary secretary for the explanation. With regard to the description of protected people, at the moment there are three such categories, as we have identified. The parliamentary secretary has indicated that the government does not intend to prescribe any further classes of protected people. There were 13 years during which the government could have provided changes to the evidence law of Western Australia and included other protected individuals; it has declined to do so. We have the bill that is before us at the moment. There have been no further additions. I note that this bill has already been through the other place; the Attorney General had carriage of it there. There has been no decision to include any other further classes of protected persons. If the government could provide some explanation as to who the protected people are that it is concerned about, I might be inclined to resist moving the deletion of the lines; but after 12 years, I think there has been more than enough time. This bill is largely the same as the package of bills that was presented in the last Parliament. To my knowledge, there was at that time no further explanation about other protected classes of persons. I think it is fair to say, in summation, that there has been more than enough time for the government to determine whether there are any persons who might have this special privilege. That has not happened in the last 13 years; the last time it happened was because there were new types of offences created with regard to outlaw motorcycle gangs. The other, more well-known ones—like the complainant in a sexual offence—have no doubt been around for a very long time, certainly with regard to children. I suspect that they have been around since at least 1992, but again, the argument is not necessarily needed to be had as to whether it was 1992 or 2012, so in light of that I move:

Page 50, lines 7 to 9 — To delete the lines.

The Deputy Chair: Members, I am just going to have the amendment circulated to the chamber.

Hon Dan Caddy: This government will not be supporting the deletion of these lines. It will only take me a couple of minutes to outline why. The honourable member has made the case that nothing has happened in the 12 or 13 years since and, if that is the case, why have we not come with a list of protected persons, for want of a better term? The whole rationale behind clause 57(1)(d) is that we as a government and indeed the people who write the legislation cannot predict the future. By way of example, one of the last changes we made in recent times was to do with outlaw motorcycle gangs. There was no way when the original act was written that anyone could have foreseen 110 years later that we would need to include within the act a provision for outlaw motorcycle gangs. That shows exactly the issue; we cannot predict the future. If there is a category of person that needs to be protected, as we have done with children and sexual offence complainants, we are trying to ensure that that can be done quickly.

The second point I would make is that this legislation went to the Standing Committee on Uniform Legislation and Statutes Review and many clauses of the bill had something similar in it. The committee had findings and recommendations but asked why that was included in the bill. The committee did not raise this clause in any way whatsoever and did not question this provision within the bill. It has been to the Standing Committee on Uniform Legislation and Statutes Review, which has not identified any issue with this part of the bill. For those two reasons primarily, the government thinks this is an important part of the bill and will not be supporting the member's amendment.

Hon Nick Goiran: I thank the parliamentary secretary for his indication of the government's position in respect to this. I understand the government's argument. My argument to members is that the Parliament decides when executive government is granted the special privilege of determining law of its own volition. That is what regulation-making power is. It is us as a chamber saying to the government that we now second the government of the day, the executive, to write into the law of Western Australia law on a case-by-case basis, essentially, whenever it likes. Yes, the government has to present those regulations to the Governor and it then becomes law, unless, of course, a house of Parliament disallows a regulation. There are at least four members of this place, certainly four members who are on the Joint Standing Committee on Delegated Legislation in particular, who will know that when matters go to that committee, their remit is to look at whether the regulation is being made within or outside of power. I think Hon Anthony Spagnolo, who is deputy chair of that committee, if I recall correctly, tabled a report earlier today. I think it is to do with a Bayswater by-law on cats or something to that effect. I will get my mind around that in readiness for next week or whenever it comes on for debate. To the best that I can recall, the contribution essentially was that this was outside of power and therefore the committee recommended that it be disallowed. The point is that it only gets to make that determination as I understand the terms of reference of that particular committee if it has been made within power or outside of power.

At page 50 of the bill at clause 57, we have before us a special provision that the government would like to prescribe any witness of a class that is not able to be cross-examined. The Joint Standing Committee on Delegated Legislation will only be able to make a decision in accordance with their terms of reference were the government to do that outside of power. Obviously, if it prescribes a particular class of witness, it is going to be within power. The Joint Standing Committee on Delegated Legislation might say that that is not appropriate and not even look at it in the first place. I provide an absurd example for the purpose of illustration only. Imagine that the government of the day stated by way of regulation that a class of witness not to be cross-examined is a member of the Australian Labor Party. Imagine the regulation stated that anyone who is a member of the Australian Labor Party has been given special protection as a witness and is not able to be cross-examined. As I said, that is an absurd example. I know that I have my points of difference with the members opposite from time to time, but there is no suggestion from me that they would make a regulation to that effect. This is for illustrative purposes only. Such a provision would be made within power and the Joint Standing Committee on Delegated Legislation would not be making a recommendation to us. We need to carefully consider what these classes of persons that are to be protected from any immunity are. At the moment, we know that there are three classes, and I suspect we are all in furious agreement about this because nobody is moving an amendment to remove any of those classes of individuals. One of those classes is children. We all agree, I suspect, and somebody can stand up and clarify to the contrary otherwise, that a child ought not to be cross-examined by an accused who is not legally represented. We all agree that a complainant in a sexual offence proceeding ought not to be cross-examined by an accused who is not legally represented. We all agree that if there is a complainant or a witness for the prosecution in a criminal proceeding with an identified organisation, in other words an outlaw motorcycle gang or something to that effect, that they ought not to be cross-examined. They are the three classes of people, and everybody is in agreement with that. That is the existing law in Western Australia. Now the government wants to add an extra provision to allow it to provide a class of persons whenever it wants. I realise that although members have been away on urgent parliamentary business this afternoon, they may be unaware of what has transpired over the last half an hour or so—the parliamentary secretary has been asked to indicate whether the government intends to use this regulation-making power. The answer was no; it does not intend to make use of it and does not foresee a scenario in which it would. I then asked why we are doing this and the reason provided was futureproofing. I put it to members that we have the opportunity here to explain to the government of Western Australia what the expectations of the house of review for this 42nd Parliament are. In this 42nd Parliament, we get to decide when the government of the day gets regulation-making powers or not. We in this house decide that. It is not up to the government. The government can request it. There are many instances when it is appropriate. It is appropriate when the government provides a justification for it. In this instance, there has been no justification provided for it other than the government wanting it for futureproofing purposes. My point to members is that if that is a satisfactory explanation, for the duration of this 42nd Parliament, every time Hon Dan Caddy or a minister or another parliamentary secretary gets up for any other bill and says to us that the government would like this included for futureproofing purposes, we would have to agree. If we agree with it now, then we agree with it for the whole of the 42nd Parliament.

I end on this point. There is nothing wrong with regulation-making powers. There are circumstances in which it is appropriate. Anytime that it is appropriate, it is incumbent on the government of the day that wants those special powers to justify why it needs it. What is the necessity for the provision? The only explanation that has been provided by the parliamentary secretary was when he referred us to 2012, which is when we included this new class of person because of the criminal or identified organisation offence. What happened in 2012? A bill was presented to Parliament, it went through the other place, it came to this place and we got to consider whether that was an appropriate class of person. That is how laws are made in this place. Laws are not ordinarily made in Western Australia just by giving the government a pen and paper and saying, "You make the law. We abdicate our responsibility as lawmakers in the house of review; we give it over to you."

Members, let us be clear here. The amendment standing in my name has come about only by virtue of the discussion with the parliamentary secretary. The government has not explained why this is necessary. The explanation that has been provided is one of desirability not necessity, and the desirability by the government for this is for futureproofing purposes. I put it to members that if that is a satisfactory explanation today—for futureproofing purposes—it has to follow that it is a satisfactory explanation for the duration of the 42nd Parliament. Every time the government says that it would like it—it does not need it—for futureproofing purposes, we have to say yes. The alternative, of course, is that the government can bring in a bill any day that it wants. Let me remind members who were not here in the last Parliament that this government was expert—I have never seen anything like it in 17 years—at ramming bills through both houses of Parliament at lightning speed. Let me tell members that if there is a special class of witness who needs to be protected, this government will not hesitate to put a bill through both houses of Parliament and we will have a discussion at that point.

Hon Dan Caddy: I thank the honourable member. He has identified two issues. One is about cross-examination and the other is about parliamentary sovereignty. I will take those two separately. In his opening statement—I hope I get the words right—he mentioned prescribed other classes who cannot be cross-examined. This clause will not prevent people from being cross-examined. The clause refers to direct cross-examination. There are other ways that cross-examination can be done when it is required. A person can be cross-examined by the judge. I will read clause 57:

(2) Instead, the accused must put any questions to the witness by stating the question to the judge or another person approved by the court.

(3) The judge or approved person must repeat each question accurately to the witness (other than a question that is disallowed).

This clause will not stop people from being cross-examined. This is all to do with the method of cross-examination. The thrust of the member's 10-minute contribution, and certainly the way it would have been understood by members, was to imply—I am not saying that it was deliberate—that once we create a new class of person, they cannot be cross-examined. That is simply not the case. It is not the case that it is written in that way and it is not the case that it is designed to act in that way.

The second issue the member raised was parliamentary sovereignty. He said that, through regulation, any future government may be able to add any class of person to this list. That is something that can come to this chamber. It can be disallowed. A disallowance motion can be put forward. A disallowance motion can go all the way through this chamber, as we saw a couple of weeks ago, to be voted on by the house in its entirety. The intent of the member's statement that it undermines parliamentary sovereignty is guarded by the way disallowance motions work their way through this chamber.

I just wanted to clarify that, especially the first point, because many members may well have thought that this will stop someone from being cross-examined in any way whatsoever, and that is absolutely not the case. It is simply one avenue of cross-examination. This will protect people who are deemed to need protection from being directly cross-examined by someone who may, in many cases, be the perpetrator.

Hon Nick Goiran: I accept what the parliamentary secretary has said—that the purpose of this clause is to restrict the categories of individuals who will be subject to direct cross-examination. If we do nothing today and the clause passes as it is, under the current state of the law today, a child cannot be directly cross-examined by an unrepresented accused. That is the current state of the law. When this bill passes, irrespective of my amendment, which would make no change to that, it will remain the case that a child cannot be cross-examined directly by an unrepresented accused. Nothing will change that, and I accept that.

The question that I think the parliamentary secretary is really raising is: What will happen in those circumstances? What will happen to a child? Is it the case that a child will not be able to be cross-examined? No; that is right. As he said, a different method will be applied; for example, the question will be posed via the judge. The parliamentary secretary probably knows that in Family Court proceedings in these circumstances, there is a Legal Aid Western Australia scheme whereby a Legal Aid lawyer is appointed and funded by the government, with, I think, some federal funding, to enable the lawyer to be cross-examined. I agree with the parliamentary secretary. I would not want anyone to be under any illusion that there is a special class of individuals who can never be cross-examined. They cannot be directly cross-examined. We are all in agreement. There are three categories of people who should not be able to be directly cross-examined: children, a complainant in a sexual offence proceeding, and a complainant or a witness for the prosecution in a criminal or identified organisation case. We are all in agreement on that. That is not in dispute here. The dispute is that the government has inserted into this bill a regulation-making power. Is that strange? Not at all. It happens on many occasions; indeed, I think the parliamentary secretary will agree with me that there are many other instances of a regulation-making power in this bill. But the point is that if the house of review is to do its job properly, it has to ask the government why it needs this regulation-making power and what its justification for it is. As I understand it, the justification is to futureproof the bill—in other words, "Just in case we need it." That is not a satisfactory explanation, with the greatest respect.

As I say, if that is the explanation, why do we not do it in every part of the bill? I think the next bill that is coming up for debate is the Charitable Collections Amendment Bill 2025. Why do we not adjourn proceedings on this bill and go to the charitable collections bill and look at how many times we can insert a regulation-making power for the government? Why? It is just to futureproof the bill—just in case. We also have debate on the Liquor Control Amendment Bill 2025 coming up. Why do we not do it in that bill? In fact, why do we not do it in every single bill in the 42nd Parliament? Any time the government says, "Let's include it just in case", let us do that. No, that is not how we make laws. That is not how laws ought to be made. I accept that some members opposite who were here in the 41st Parliament have become so used to that that it is the norm. For members who were not here in the last Parliament, that was the norm. These same arguments were made in the last Parliament. The problem was that every time a member made an argument on anything, the government simply said no, and so amendments were generally not agreed to. But that has not been the history of the Legislative Council. The Legislative Council has had a strong history of making sure that it oversights regulation-making powers.

I will finish on this point. I think the parliamentary secretary mentioned in passing that this is something that has not been picked up by the Standing Committee on Uniform Legislation and Statutes Review. Be that as it may. The Standing Committee on Uniform Legislation and Statutes Review has not expressly brought this to our attention, but does that prevent us from doing our job of examining each clause and part of the bill? I accept that it was not raised by the standing committee. I am not on the committee so I cannot explain the reasons for that. But I can say this much. This has been brought to our attention this afternoon. The explanation that has been provided is that it is for futureproofing purposes. I end on this point: If that is the standard that we are going to agree to today, surely that is the standard we will agree to for the 42nd Parliament every time the government comes along and says that it would like this provision for futureproofing. I make a plea to crossbench MPs, for what it is worth; I suspect I know where this is headed, but nevertheless. In fairness to my crossbench colleagues, if they feel that this amendment has come at no notice, rest assured my colleagues feel the same and I am sure they will give me a stern talking to after today's proceedings. But we have a job to do here and, as members can see, that includes scrutinising the bill, clause by clause if necessary. The government has had an opportunity today to provide an explanation for this provision. The best explanation it could provide was that it is for futureproofing purposes. I say this to members who might be inclined to support the government in opposing this provision to be careful what they do because, from time to time, they might ask the opposition to support them in opposing a regulation-making power in a different bill. They should not be too surprised if I remind them about this particular episode and say, "Hang on a second. I raised this point at length on 11 September 2025 and on that day you seemed to think that it was okay for the government to have a futureproofing power just because it says so." There might be a bill before the house on, let us say, an environmental matter or something like that, and crossbench members might have a strong view about it. Why would I suddenly change my tune on that? Let us see how we go. I put it to members that it is an amendment to delete lines 7 through to 9 on page 50.

Hon Dan Caddy: I will not take much more time of the chamber on this, but I want to address a couple of things. The first is that we will not be adjourning proceedings and moving to the Charitable Collections Amendment Bill. More importantly, Hon Nick Goiran asked why this provision is not in every clause. I outlined this earlier, but I will say it again. This part of the bill deals with protecting victims. This sort of clause is in some elements of this bill and other bills and it is not in other bills, as the member rightly said—sometimes you see it, sometimes you do not. This part of the bill is about protecting victims, oftentimes the people who would be directly cross-examined. If this provision was not there, victims could be cross-examined by the perpetrator. This expressly deals with the protection of victims. We want this included because if in the future a protected category of person is identified because they are victims, this will allow this government and future governments to move quickly.

Hon Nick Goiran: Which victim not included in the bill needs protection?

Hon Dan Caddy: That is the whole point. We talked about this half an hour ago. This provision is in the bill because that future victim that the member is talking about has not been identified. This provision may never be used. A future class of victim may not be identified, but at least if one is identified, this allows future governments to move swiftly to protect those victims.

Hon Nick Goiran: The parliamentary secretary indicated that no future class of victim has been identified by the government. If a future class of victim needs protection, would it be open to the government to pass a bill through both houses?

Hon Dan Caddy: The short answer is yes, but as the member knows, that does not happen as quickly as changes that can happen through regulation.

Hon Nick Goiran: Is there a provision of this sort in the uniform law?

Hon Dan Caddy: This is a non-uniform provision. All the provisions similar to this across the jurisdictions in Australia are non-uniform.

Hon Nick Goiran: It is a non-uniform provision. In other words, it is a Western Australian provision. Does the Western Australian provision include a regulation-making power?

Hon Dan Caddy: The answer has not changed since the member asked a question about section 106G about half an hour ago. No.

Division

Amendment put and a division taken, the Deputy Chair (Hon Andrew O'Donnell) casting his vote with the noes, with the following result:

Clauses 58 to 60 put and passed

Clause 61: Original document rule abolished

Hon Nick Goiran: We move to clause 61, which says, briefly:

The principles and rules of common law that relate to the means of proving the contents of documents are abolished.

What is the rationale behind abolishing the common-law rules regarding the means of proving the contents of documents?

Hon Dan Caddy: I thank the member for the question. In times when copies were made by hand, it was generally not efficient in a court of law to hand up a copy of a document as evidence. The rule was that a party had to produce the original document. This was the only way the court could be certain that there were no errors in the copy. This rule was known as the best evidence rule. By the time of the Australian Law Reform Commission's evidence review in the 1980s, it was increasingly rare that copies produced by photocopiers or transcribed to microfiche were not available. However, the law had not entirely kept up. Although, as a matter of practicality, parties could agree to hand up copies, the technical rules of the court allowed a party to insist on the production of the original document whether it was important or in dispute or not. The rule was increasingly criticised. For example, in 1990, the English Court of Appeal stated:

… more than happy to say goodbye to the best evidence rule. We accept that it served an important purpose in the days of parchment and quill pens. But since the invention of carbon paper and, still more, the photocopier and the telefacsimile machine, that purpose has largely gone.

The model evidence laws advanced by the Australian Law Reform Commission in 1987 abolished the best evidence rule. This is reflected in section 51 of the Commonwealth act, which is titled "Original document rule abolished".

In Western Australia, the current law on original documents and copies is found in section 73A of the current act. Section 73A modified rather than abolished the best evidence rule. It allows the admission of an accurate reproduction of a document even when the original exists and, in certain circumstances, establishes a rebuttable resumption of accuracy. However, echoes of the rule still exist in the determination of the weight to be given to a document if a party does not give best evidence in circumstances in which it might be expected, and in the court sometimes not accepting copies as evidence if a failure to produce the original document is not explained.

The bill adopts the Commonwealth's position by abolishing the rule. The abolition of the rule does not prevent an original document being required in situations in which it is necessary and relevant—for example, when it is in dispute that a document was signed. However, it does mean that a party cannot stymie or taint a case by insisting on an original document when it is either unimportant or undisputed and it is clear that sufficient evidence is before the court.

Clause put and passed.

Clauses 62 to 113 put and passed

Clause 114: Admissibility of tendency evidence in proceeding involving child sexual offence

Hon Nick Goiran: Why has clause 114 been included when there is no equivalent provision in the Commonwealth act?

Hon Dan Caddy: The clause the member is referring to mirrors the clause in the New South Wales Evidence Act. This is one area of uniform evidence law in which the provisions in place in different uniform jurisdictions vary somewhat. All uniform evidence jurisdictions contain a version of sections 97 and 98 of the Commonwealth act. Section 97 is the central tendency rule provision and section 98 is the central coincidence rule provision. However, the uniform acts of New South Wales, the Australian Capital Territory and the Northern Territory also contain section 97A, which expands upon the operation of the tendency rule in child sexual offence prosecutions. It creates a rebuttable presumption that a tendency to have a sexual interest in a child or children or to act on such an interest is, without more, a tendency that has significant probative value in child sexual offence charges.

The WA Government accepted the Law Reform Commission's recommendation that Western Australia's Evidence Bill should contain a version of sections 97 and 98 of the Commonwealth act, as well as a version of section 97A, which is in the New South Wales act. Although the provisions of the bill that are based on uniform law provisions are generally based on the Commonwealth versions of those provisions, there are a few clauses in the bill that are based on the New South Wales provisions. Of all the uniform jurisdictions, the New South Wales version of the uniform law is most like the Commonwealth's, except for areas in which New South Wales made minor changes to reflect the fact that it was drafting evidence legislation for use in a state rather than a nation. In this WA bill, where it was necessary to have uniform provisions that were suitable for use in a state rather than federal jurisdiction, those provisions are based on the New South Wales provisions.

As well as including section 97A, the New South Wales Evidence Act also contains a few other provisions that contribute to the general structure of the tendency and coincidence division. For example, at the same time that New South Wales added section 97A to its act, it also added subsections (4) and (5) to section 94 and subsection (1A) to section 98. These additions were based on recommendations made by the Australian Law Reform Commission, the New South Wales Law Reform Commission and the Victorian Law Reform Commission when they reviewed the uniform evidence laws in 2005 and 2006.

Having made the general determination to adopt the New South Wales provisions in several other parts of the bill, and having made the decision to include a version of New South Wales' section 97A in the bill, it was decided that it would be preferable to draft the tendency and coincidence provisions of the bill in a way that wholly reflected the New South Wales rather than the Commonwealth process.

Other reasons for adopting section 97A include the following. It is appropriate to introduce a version of section 97A because it will assist to admit tendency evidence in child sexual offence proceedings. It will communicate to the parties, the court and the public that this type of tendency evidence will generally have significant probative value; however, the court will retain an appropriate discretion to determine in the particular circumstances of a case that the evidence does not in fact meet the test.

The effect of section 97A is consistent with findings that were made by the royal commission, which found that there was a need for reform in this area in relation to child sex abuse cases, and that need arose in part from deficiencies in the operation of the relevant provisions of the uniform law. Given that the Law Reform Commission recommended the adoption of those uniform law provisions, it was appropriate for the commission to also recommend the adoption of section 97A in order to meet the deficiency identified by the royal commission.

The model provisions include a non-exhaustive list of factors that were not necessary for tendency evidence to have significant probative value in child sexual offence proceedings. Those factors were sourced from the findings of the royal commission. The commission accepts that the royal commission inquired into these issues in some depth and received expert and lay evidence in support of them.

Hon Nick Goiran: Clause 114(1)(a) sets out the definition of "child sexual offence" when read in conjunction with clause 114(1)(b). Is a list available of the offences that are captured by this provision?

Hon Dan Caddy: Member, there is no list and that is deliberate because we do not want to confine the courts' consideration of what may constitute a sexual offence.

Hon Nick Goiran: The suggestion from me is not that the government wants to confine that, but there are certain offences that are captured by this provision. I do not think that is a controversial observation. My question is: Does the government presently have a list of offences that would be captured by this provision?

Hon Dan Caddy: There are lists of child sexual offences in the Criminal Code, but with respect to this bill, clause 3 has a definition of "sexual offence". Clause 114, the clause we were debating at the moment, is about child sexual offences. The definition in clause 3 informs clause 114, and obviously that is an offence against a child.

Clause put and passed.

Clauses 115 to 177 put and passed

Clause 178: Application of Division

Hon Nick Goiran: Has this clause changed from the package of bills in 2024?

Hon Dan Caddy: Yes, it has, to give effect to the recommendations from the Uniform Legislation and Statute Committee's report from 2024. If the member would like, I can read the words that were struck out. I note the member is nodding. Clause 178(1) states:

This division extends to a proceeding before a person acting judicially.

Those words are in, and the words that previously immediately followed have been struck out. Those words 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: The parliamentary secretary indicates that that was brought about by the committee in the previous Parliament, that being the 150th report on the Evidence Bill 2024, which was tabled by Hon Donna Faragher in October 2024. Can the parliamentary secretary draw to the house's attention which recommendation he is referring to?

Hon Dan Caddy: Member, I refer to recommendation 2, which reads:

The Evidence Bill 2024 be amended as follows:

Clause 178

Page 135, lines 7 to 10 — To delete the lines and insert:

judicially

Clause put and passed.

Clauses 179 to 199 put and passed

Clause 200: No confessional privilege in proceedings relating to child sexual offences or sexual abuse

Hon Nick Goiran: This is one of what I might say is a limited number of provisions in the bill that does not have one of those comparative notes at the bottom. What is the genesis of clause 200?

Hon Dan Caddy: Member, this is a new clause. It is not drawn from either the former bill, the current act, or the Commonwealth act.

Hon Nick Goiran: That being so, what is the genesis of its inclusion?

Hon Dan Caddy: Clause 200 abrogates religious confession privilege in child sexual offence proceedings and civil child sexual abuse proceedings consistent with the current mandatory reporting regime, which was introduced several years ago in the Children and Community Services Act 2004. This clarifies the law in this respect as it was unclear whether religious privilege could apply.

Hon Nick Goiran: Was this a provision in the 2024 package of bills?

Hon Dan Caddy: Yes.

Hon Nick Goiran: What was the extent of the consultation undertaken in respect to this provision?

Hon Dan Caddy: Thanks for your time, member. We were just working through the timelines; there was lots of consultation at different times. As I said previously, this was in the 2024 bill. It was added to the bill post the consultative period. Initially, this was going to be left to common law and then there was advice that it ought to be inserted to take away any ambiguity, and it is entirely consistent with the mandatory reporting act.

Hon Nick Goiran: Thank you for that clarification, parliamentary secretary. But to be clear, was no express consultation undertaken in respect of this provision then?

Hon Dan Caddy: That is correct, member.

Hon Nick Goiran: Was it inserted at the request of the DPP or some agency that is responsible for prosecuting child sexual offences?

Hon Dan Caddy: I am informed that the instructing officers sought advice on whether there was certainty around this with respect to leaving it to common law, and once again I go back to my previous answer that that advice led to the inclusion of this clause so that nobody was uncertain what the requirements were.

Hon Nick Goiran: Parliamentary secretary, who provided that advice?

Hon Dan Caddy: That advice was provided by the State Solicitor's Office.

Hon Nick Goiran: Why does this provision at clause 200 not apply to all sexual offences?

Hon Dan Caddy: It is because the mandatory reporting requirements apply only to child sexual offences.

Hon Nick Goiran: Therefore, I take it that other violent offences are not included?

Hon Dan Caddy: No, they are not included in this provision.

Hon Nick Goiran: What has been the frequency of the use of this confessional privilege?

Hon Dan Caddy: We are not aware of any recent cases in which a priest has tried to argue confessional privilege. There are no Australian cases that I am aware of that directly address this topic. There are some brief, vague and conflicting comments in a handful of Australian High Court and Court of Appeal cases.

Hon Nick Goiran: Clause 200(3) indicates:

This section does not affect the operation of any privilege conferred by this Part.

I take it that one of those privileges, amongst other things, is the privilege against self-incrimination?

Hon Dan Caddy: Yes, the member is correct.

Hon Nick Goiran: Would it be open to an individual to not provide evidence, not by claiming confessional privilege but by claiming a privilege against self-incrimination?

Hon Dan Caddy: It is open to any witness to claim any privilege they want; it is up to the court to decide.

Clause put and passed.

Clauses 201 to 205 put and passed

Clause 206: Exclusion of certain evidence relating to complainant or witness

Hon Nick Goiran: Has clause 206 changed from the package of bills in 2024 and, if so, to what extent and why?

Hon Dan Caddy: The answer is yes. Clause 206 restricts the circumstances in which evidence about the complainant's sexual history may be introduced. Evidence of the complainant's sexual reputation or disposition in sexual matters must not be adduced, and evidence of their sexual experiences may only be introduced with leave of the court. Historically, evidence of a complainant's sexual reputation, disposition, history or experience were used to attack the complainant's credibility or to invite reasoning that the complainant was more likely to have consented because they were the "type of person" who would do so. The evidence evoked myths and stereotypes about promiscuity and appropriate sexual behaviour. In some cases, such as those involving reputation evidence, the evidence led may not have involved any information about the complainant's actual experience or behaviour. That kind of reasoning is no longer considered permissible, in the same way that it is generally considered impermissible to utilise an accused's criminal record to suggest that they are the "type of person" who would commit a crime.

Clause 206 was based on provisions from the current act that have been in place for more than 20 years. However, the version of clause 206 that was included in the 2024 bill protected complainants only in a criminal proceeding for a sexual offence. The Australian Law Reform Commission recently released report 143, Safe, Informed, Supported: Reforming Justice Responses to Sexual Violence, which I will refer to as "the report". It recommended that the tests that are applied in criminal proceedings should also be applied in civil proceedings when there is an allegation that sexual violence has taken place. This recommendation is broadly consistent with the policy already in use in the 2025 bill of extending certain protections to witnesses in civil proceedings when sexual abuse or harassment is in issue—currently, in clause 56 and clause 380. It is also logically consistent with the current understanding of the irrelevance of this type of evidence to the facts in issue. Amendments have therefore been made to extend clause 206 to apply in both criminal proceedings and civil proceedings when sexual violence is in issue.

Hon Nick Goiran: Is the provision at clause 206 something that the other jurisdictions have included?

Hon Dan Caddy: I am unaware of whether other jurisdictions have it, but I make the point that it was added to this bill as a result of a recommendation in the Australian Law Review Commission's report that came out in January this year. It may be that if it is not in other acts, it is because this report came out subsequent to those acts being gazetted.

Hon Nick Goiran: In this clause we use or insert phrases such as "sexual reputation" and "disposition of the complainant in sexual matters". How is it intended that these phrases will be defined?

Hon Dan Caddy: The short answer is: in the same way in which they have been defined for the last 20 years. The intent of clause 206 and what it addresses has been brought, obviously not directly, from the former act, or the current act, as it may be.

Clause put and passed.

Clauses 207 to 239 put and passed

Clause 240: Recorded statement admissible as evidence in chief

Hon Dr Brad Pettitt: I have a few questions and comments on this clause. This is within the context of the Greens welcoming the intent of the bill to update our state's evidence laws and support victim-survivors of family violence, but that is actually part of the reason we want to raise some concerns regarding this clause. Clause 240 permits the admission of a recorded statement made by a person to a police officer in criminal settings for family violence offences and other offences to be added by regulation. The Greens support greater accessibility to protection for family violence complainants who participate in criminal proceedings, but hold concerns that this provision could ultimately criminalise the complainant and put undue pressure on the complainant to participate in legal proceedings on the back of statements made in circumstances of extreme distress. We raised this issue throughout the briefings, as the parliamentary secretary will be aware, and we certainly got a response on Tuesday from the Attorney General in relation to a letter we had written on this matter. But I am hoping that the parliamentary secretary can respond to our specific concerns about clause 240 and give us some comfort in relation to issues that have been raised with us.

Hon Dan Caddy: Sorry, member. Can you clarify your question?

Hon Dr Brad Pettitt: There is a concern that the way in which the provision is currently worded could ultimately criminalise the complainant or put undue pressure on the complainant to participate in legal proceedings on the back of statements made in circumstances of extreme distress. That is our concern. If the parliamentary secretary is able to respond to that, it would be useful.

Hon Dan Caddy: I will start with some general comments, and then I will move to specifics. As I understand it, the member's question is around the rationale for allowing recorded statements to be used as evidence-in-chief, specifically in family violence proceedings. Recording a victim's account of evidence at the scene or shortly after allows the victim to describe what happened while their memory is still fresh. It reduces the opportunity the perpetrator might have when a traditional written statement is prepared and the victim does not give evidence until the trial to persuade or coerce that victim to change their account of events or, in some cases, to withdraw their complaint entirely. Recorded statements will allow victims to give their evidence-in-chief in an out-of-court environment, which, especially with family and domestic violence, can be less stressful than describing what occurred to them in a court setting. Recorded statements will replace traditional written statements in family violence cases. The recorded statement will serve as disclosure of what the complainant says occurred as well as their evidence-in-chief. This will also reduce the re-traumatisation that can occur when a victim is required to tell their story on more than one occasion, repeatedly having to go through the traumatic experience. Using recorded statements in place of written statements is also likely to be more efficient. Often, a written statement will require multiple drafts as well as multiple visits and communications between police and the victim before it is finalised and signed. When a recorded statement is used, police will be able to ask any clarifying questions necessary as part of the one interview. The words "more efficient" sounds callous, but it is in the interests of the complainant; efficiency means sitting down and giving their statement only once if that is what they want and not having to revisit it. I did not mean for it to have a callous meaning. Written statements are more efficient as far as lessening the trauma goes. Playing a recorded statement as evidence-in-chief is also likely to be more efficient than a complainant giving their evidence live in court. For those very reasons, I attach that meaning of the word efficiency; it is something that helps. Breaks may also be required while lawyers and judges debate the admissibility of various questions and answers in a courtroom setting.

To get to something more specific, I do not know whether this is where the member was heading, but I understand the member's question was heading down the path of whether recorded statements help if a complainant changes their mind about wanting to proceed with the case. I think that was one of the member's concerns. Once a recorded statement has been created, it can be used as a complainant's evidence-in-chief if certain requirements are complied with. However, the complainant will still have to participate in cross-examination or re-examination. Prosecutors currently face cases in which a complainant is reluctant or refuses to give evidence. The existence of a recorded statement may assist the prosecutor when speaking to a reluctant complainant. A prosecutor will be able to explain to that complainant that they have already given their evidence-in-chief. This goes to what I was talking to before about the efficiency of giving evidence once and not having to repeat it. The prosecutor will also be able to explain that other witness assistance measures are available to assist a complainant when giving the remainder of their evidence. However, prosecutors must make very difficult decisions when faced with a reluctant complainant. Despite the existence of a recorded statement and the availability of other support measures, the complainant may still not want to participate in cross-examination. Whilst the prosecutor can insist upon the complainant attending court and giving evidence, there is a very real risk and real-world scenarios in which such a complainant will give evidence unfavourable to the prosecution in their cross-examination in any case. Whilst the availability of recorded statements may assist in a prosecutors' discussions with future complainants, they will not resolve the issue of a complainant who no longer wants to give evidence in every case. I will sit down in case the member has a more specific question as we discuss coercive control or something like that.

Hon Dr Brad Pettitt: I have a few questions on this theme that we can unpack. The purpose of this is not to vote against this in anyway. It is more to make sure that we are clear and get on the record the intent of some of these clauses. This question is about competence and consent. Clause 240(1) lays out the criteria the court must be satisfied with to admit the recorded statement. Clause 240(1)(c)(ii)&(iii) states:

(ii) was competent to give sworn or unsworn evidence; and

(iii) was capable of giving consent to the creation of the recorded statement;

An issue that has been raised with us is that there is no definition of "competent". Clause 23(1) states:

(1) A person is not competent to give evidence about a fact if —

… the person does not have capacity —

(i) to understand a question about the fact; or

(ii) to give an answer that can be understood to a question about the fact;

There is no indication whether a person who appears intoxicated or suffering from mental health concerns would be considered competent and or capable of giving consent. We are concerned that a complainant may agree to provide a recorded statement without fully grasping the consequences of doing so, especially if the statement is taken a short period after the incident. Furthermore, if a complainant provides a recorded statement while distressed, intoxicated or unwell, their recollection of events in a recording that can be admitted as evidence-in-chief may differ from the evidence they provide in cross-examination in court, and there is a danger that the complainant could appear to be lying or not credible if the information they provide at trial differs from the evidence recorded at the time when they were distressed, intoxicated or unwell. We are interested in understanding how these concerns might be dealt with.

Hon Dan Caddy: Courts are well placed to determine questions of competency and capacity. This is common. In fact, it is frequent; it happens in court all the time. This bill will not rely on the assessment of a person at the time of the statement to determine whether the complainant was in fact competent and consenting. Under clause 240, the court must be satisfied that the complainant consented and that they were competent to give sworn or unsworn evidence at the time the statement was created. The start of that answer is critical. The courts determine this. The bill assumes that every person is competent to give evidence. However, clause 23 provides:

(1) A person is not competent … if —

(a) for any reason (including a disability), the person does not have capacity —

(i) to understand a question … or

(ii) to give an answer that can be understood to a question about the fact; and

(b) that incapacity cannot be overcome.

That lack of capacity does not have to be permanent. It may be just at the time and in the circumstances, they were not competent either because of a mental illness or because they were intoxicated. If doubt is raised about a person's competence or it is clear to the court that it may be an issue, then the court will conduct a preliminary examination to assess the witness's competence. A court will typically ask the witness a series of questions. The questions are tailored to the witnesses' circumstances. Courts also regularly decide questions relating to consent, for example, in criminal trials and proceedings relating to medical treatment.

The bill consequentially amends the Criminal Procedure Act 2004 to provide for the matters that a police officer must tell a complainant before taking a recorded statement from them. These are that the statement may be used in evidence at a hearing, that the person may be required to give evidence in cross-examination or in further examination, and about the access that the accused will have to the statement if a proceeding is commenced. When considering whether a complainant consented to providing a statement, the court will consider a range of factors including whether the police officer told the complainant all these things. It is intended that the training for police officers will include training on trauma awareness and in determining whether the complainant is competent and consenting. In saying that, the final decision rests with the court.

Hon Dr Brad Pettitt: My next question is seeking some clarification around when a complainant does not wish to proceed. A statement recorded when a person is distressed or potentially intoxicated could require the complainant to appear at court as a witness. Our reading of it is that this provides no leeway for a complainant to decide later that they do not wish to proceed with a criminal complaint. The current practice is that a witness provides a written statement to police after the fact. It permits that a witness can decline to provide a statement. It also provides for police to follow up and explain the legal requirements for complainants and/or witnesses who provide statements, including that they are required to attend court and may be arrested for failing to do so. By recording a statement at the time of attendance, complainants may provide a statement of matters that ultimately they do not wish to proceed with in court. If the matter proceeds in court and the complainant fails to appear and fails to obey a witness summons, the court has powers to issue an arrest warrant under section 165, and even imprison a witness under schedule 4, of the Criminal Procedure Act. This serves to further traumatise family violence victim-survivors who may not wish to proceed under a criminal law system for a range of reasons. Can we have a response to those concerns, please?

Hon Dan Caddy: I guess the first thing to say, critically, is that this will not change the process; it is purely the method of recording the original statement that will change. A complainant will still have a conversation with an officer, and that process will be the same. It may happen immediately after the incident, as opposed to two weeks later at a police station, but the means of recording it will be the same. The prosecutor will consider the complainant's wishes, once it gets past that stage, when deciding whether to apply the user-recorded statement as evidence-in-chief. In every case involving a vulnerable complainant, a prosecutor consults the complainant about whether they wish the case to proceed and what arrangements or assistance measures might make it possible for them to proceed. Complainants have a high degree of control over whether a case will proceed, which is appropriate given the complainant's central role and interest in the proceedings and the often intimate subject matter of the complaint.

Hon Dr Brad Pettitt: The parliamentary secretary said quite clearly that there is leeway for a complainant to decide later that they do not wish to proceed with a criminal complaint.

Hon Dan Caddy: If I am correct, the flip side of what the member is asking is whether the prosecutor can decide that they are going to go with the recording regardless. That has not changed. If someone gives a written statement at a police station and then decides they do not want to do it, prosecutors can still go with that written statement as well. It is the method of the initial statement being given that is in question here. As I said in my previous answer, if there is a reluctant complainant, it is highly unlikely that it is going to proceed. Although no case is guaranteed, it is almost guaranteed it is not going to work and not give the desired result if they go down that path.

Hon Dr Brad Pettitt: Obviously, the concern is that often people make a statement in a very distressed state very early on and that that is quite a different process from making a statement further down the track when things are calmer. I think the way that would trigger the potential for there to be no capacity for a complainant to decide not to proceed raises some concerns. It could be triggered right at the point when something has happened, and someone is intoxicated and under distress and they have not thought it through. That then leads through to a process. I just have some reservations in that space.

Hon Dan Caddy: I am just going explain the process here. Let us go back to written statements before we talk about this. If someone makes a written statement and they are not happy with it, they can review that written statement, amend it and make another written statement that then takes precedence. This also happens with a video recording. I think the heart of the member's question is that he is worried about a recording that happens five minutes after an act. If someone says something they then think is inaccurate or they do not want to have recorded, there is the opportunity to go down other paths to create the evidence-in-chief to take to court. Prosecutors—to put it in better language—already make these decisions in respect of complainants who have provided traditional written statements, allowing police officers to create recorded statements and for those statements to be admissible as the complainant's evidence-in-chief in certain circumstances. It is simply an additional measure that may assist prosecutors and, more importantly, may assist complainants because it is a one off, "I've said it; I've done it. I don't need to revisit my evidence-in-chief ever again."

Hon Dr Brad Pettitt: Great. I much appreciate that. I will push on. I am on the same clause. This question is around coercive control and false statements. If a complainant knowingly provides a statement that contains information that is false or that person does not believe is true, should they be guilty of a crime of up to seven years imprisonment? That is at clause 240(3). Complainants can be fearful that their partners may provide a false statement to police, especially in circumstances in which police record the statement immediately after an incident has occurred. This provision appears contrary to the government's commitment to support victim-survivors of family violence and coercive control. Hon Dan Caddy talked about that in the second reading speech. Considering that part 7, division 4, of the bill is directed at provisions for family violence complainants, has the government considered removing this provision and disallowing any powers of the court to issue arrest warrants for complainants in criminal proceedings in relation to family violence?

Hon Dan Caddy: No, is the short answer. The first part of the member's question was about coercive control to create false statements. It is already a case that when making a written statement, a complainant must sign to the effect that the statement is true to the best of their knowledge and belief, and there are significant consequences if they knowingly provide false information. Recorded statements change the mechanism by which this occurs, but they do not interfere with the usual requirements for evidence, including that it occurs under a form of oath. The risk exists for written statements, recorded statements and all evidence that is on the stand in court, and all of which have legal penalties for giving false details. All the mechanisms that are already in place will also apply to recorded statements.

Committee interrupted, pursuant to standing orders.

(Continued at a later stage of the sitting.)