Bills
Evidence Bill 2025
Third reading
Hon Dan Caddy (Parliamentary Secretary) (12:28 pm): I move:
That the bill be now read a third time.
Hon Nick Goiran (Leader of the Opposition) (12:28 pm): I rise on behalf of the opposition to speak on the third reading of the Evidence Bill 2025. The house has to report to you, Deputy President, that the bill that was considered and agreed to by the house at the second reading stage is not the same bill that is presently before us. Members may recall that when the parliamentary secretary introduced this legislation to the house, bill number 9 for this year, it was the bar-2 bill that was introduced. In other words, that bill was different from the bill that was introduced in the other house earlier this year. I will expand on that a little more in a moment.
At this time, Deputy President, it is the duty of the house to report to you the outcomes of what occurred during the Committee of the Whole House process. As a result of the Committee of the Whole House process, we now have a different bill, which we intend to send to the other place for agreement. I want to spend some time, in the limited opportunity that I have now, to unpack some of those changes that have been made and the necessity and desirability of those amendments, which will then be considered by the other place.
It is a curious ongoing convention of this place that when the other place makes amendments to legislation what then gets introduced to this place is a full copy of the legislation and it is then marked as bar 2. That is a helpful ongoing convention because it ensures that when members are then considering, in this case, the Evidence Bill 2025, there is no question about what it is that they are being asked to agree to. It is not the same piece of legislation as what was introduced in the Legislative Assembly; therefore, members are presented with these bar-2 bills.
What is curious about the ongoing convention is that after we pass amendments in the Committee of the Whole House process, and perhaps after this third reading, and we then send the bill back to the other place, we do not actually send a bar-3 bill back to the other place for its concurrence. We simply say to the members of other place that we have agreed to the bill and we have these other ancillary amendments that we would like them to agree to, and, potentially, we could have some kind of political Mexican stand-off between the houses with regard to those particular amendments.
The reason I raise that at this time is, as a passing observation, I think it would be useful—not that I am expecting this to change—when members are being asked to agree to the third reading of a bill, as we are now being asked to do, that there is some document that accumulates everything it is that we are being asked to agree to. In terms of the documents that I have before me, I have this massive Evidence Bill 2025, a bar-2 bill that was introduced by the hardworking parliamentary secretary some time ago. I also have in my possession the supplementary notice paper (SNP)—in particular, SNP 9, issue 2. In a sense, it is the combination of these two things that then become the law that we are being asked to agree to. But it is a not entirely satisfactory process because, of course, just because I have an SNP 9, issue 2, does not necessarily mean that the house has agreed to all the items that are on the SNP. As it so happens in this instance—this is why I think it is an instructive example—that did actually happen.
I am pleased to report to the Deputy President that the work of the Committee of the Whole House was to examine not only the entirety of this bill, but also the proposed amendments. Members who are familiar with the course of this matter will know that three amendments were moved by me, the bulk of the amendments were moved by the hardworking Parliamentary Secretary to the Attorney General, as well as—I think by quick count—a further seven amendments, and so all 10 amendments were agreed to by the house, and it is that entire package that we are being now asked to agree to as the third reading.
Having made those introductory remarks, I turn now to the sequence of events that have brought us to this place, particularly as we consider, and I think the government has not unfairly made some point about this, that this is the most significant change to the evidence laws in WA since their inception in 1906. It is not something that WA has evidently been willing to engage in on a frequent basis let alone a complete rewrite of the Evidence Act, and so it is fair for people to ask the question: Why are we doing this?
The reason why we are doing this—this is why the opposition agrees with the government; this is an important reform—is that most of the other jurisdictions of Australia are operating under a common set of principles, a common set of laws, when dealing with evidence. Western Australia does not have that; it has its own standalone act, and I believe, if I remember correctly from the discussion that I had with the parliamentary secretary during Committee of the Whole House, once this bill passes, assuming that it does and is agreed to by the other place, I think it may be then that South Australia will be the only jurisdiction—possibly Queensland, but certainly South Australia—that has its own standalone Evidence Act. Therefore, in part, the reason that the opposition and the government have agreed to do this, and hopefully the entire house will agree to it, is to ensure that throughout Australia evidence laws are as uniform as they can be.
However, it is important to note that even if this bill passes at this third reading now, Western Australia's evidence law will not be identical to the other jurisdictions because a number of carve outs have been included, and the work that was done during the Committee of the Whole House only further reinforced that. In a moment I will get to the business record rules' issue and the special rule that was reinstated because of the advice of a combination of the Director of Public Prosecutions and Parliamentary Counsel's Office, which saw a set of amendments moved by the parliamentary secretary, which were agreed to by the Committee of the Whole House and which I would encourage members to agree to now at this third reading.
The Committee of the Whole House process was substantial, and I commend the parliamentary secretary for the way in which it was handled. He has certainly taken up the mantle from his predecessor in handling the substantial pieces of legislation. I certainly appreciated the way in which the questions that were posed were well considered and that advice was taken, and I have already put on the record at the conclusion of the Committee of the Whole House my appreciation for those who were obviously assisting the parliamentary secretary. The process was substantial. We started on 9 September, albeit perhaps the Leader of the House and the parliamentary secretary will recall it was a microscopic examination of clause 1. I think I got to ask one question and perhaps the parliamentary secretary started responding to that and then we had to adjourn proceedings, so no real work in terms of scrutiny was done on 9 September. The bulk of the work, it has to be said, took place over three sitting days, not full sitting days, but on Wednesday 10 September, Thursday 11 September and then Tuesday of this week on 16 September. To the extent that changes were made, I particularly want to draw to the Deputy President's and members' attention that the Committee of the Whole House agreed to what I consider to be an important amendment on the commencement clause.
Members who have been here for a little while will know that for some time I have been at pains to ensure that the ongoing findings of the Standing Committee on Uniform Legislation and Statutes Review, with regard to parliamentary sovereignty, are maintained Parliament after Parliament, and we will be doing that, Deputy President, if we agree to the third reading of this bill. Members may well be aware that certainly in the 40th Parliament the composition of this house was not significantly different from what we have here in the sense that the Labor Party had won government and had a substantial number of members, but it did not have absolute control of the Parliament. The opposition had a substantial number of members, but, equally, it was unable to do anything by itself, and it ultimately boiled down to other political parties to influence the outcome on any particular day.
There was consistent preparedness throughout the 40th Parliament for this house to re-exert its authority to decide when a law comes into effect. It may, on occasion, decide to delegate that power to executive government and leave it to determine when a law is to come into effect, to be done by way of proclamation. The 40th Parliament consistently pursued that important principle. I note that I felt that principle was completely abandoned in the 41st Parliament. Despite the best efforts of some of us to try to ensure that consistency, it was ignored. I am very pleased to report that, today, we will see the reinstatement of that important principle. It is for this house and this Parliament to determine when laws will commence. It cannot be the case that we just lazily, and I would say recklessly, hand over that responsibility to executive government. There is a time and a place for it.
Something as basic and routine as a review clause does not need executive government to decide if and when it is going to come into effect. I have no faith that the other house would bother to implement such a clause, but if this house has decided that it is necessary for there to be a statutory review, then that is what this house has decided to do. The time will begin to run immediately, rather than having the dangerous situation in which a government might decide that despite the fact that the Legislative Council wanted a statutory review, it will make sure that it does not proclaim that particular provision. I hasten to add, in fairness, might there be any suggestion that it is an aspersion on anybody, that I have not seen executive government do that, whether the Labor Party or the Liberal Party has been in power, but let us make sure that that is never the case and that no funny business goes on.
Clause 2 has been amended; it is not the same as it was when the second reading was agreed to. As we read this bill for a third time, clause 2 has changed for the better. Members may be aware that the review clause is found in part 10 of the bill, and specifically in clause 384. Time will begin to run in respect of that review clause from the day after the bill receives royal assent, which I imagine will be in the next few days.
After some examination and, indeed, amendment of clause 2, the parliamentary secretary and I had an interesting discussion and dialogue about clause 3. That revealed a number of things. In particular, I note for the benefit of members that clause 3 deals with the various terms that are to be used in this bill. The clause, in itself, is massive. It starts on page 3 of the bill and continues all the way up until page 14. It is a massive clause that sets out the terms to be used. The term that we particularly scrutinised at the time was "person acting judicially". What that revealed is that there are, in my view—I do not know that this is necessarily shared by the government—inconsistencies in how this bill is going to treat provisions that deal with individuals who are said to be acting judicially. Allow me to just explain that momentarily with the benefit of the information that was unpacked during Committee of the Whole House. I do not know that the government would necessarily quibble with the point that I will make, but it is pretty clear that the State Administrative Tribunal is being treated in a different fashion from other individuals who are said to be acting judicially. It is ultimately for the government to defend the case as to why there would be what I describe as an inconsistency here; nevertheless, that was identified during the consideration of clause 3.
The parliamentary secretary will recall that we had some discussion about quasi-judicial officers. The government will be aware of some of my concerns about the lack of accountability for quasi-judicial officers in Western Australia under our system. In my view, it is a curiosity that judicial officers in Western Australia seem to have a greater accountability to Parliament—it is not a great accountability to Parliament, but it is greater—than quasi-judicial officers. Let us be clear here: a judicial officer ought to always be considered superior to a quasi-judicial officer. The Parliament has the power, on a motion passed by its two houses, to remove a judicial officer, yet it would seem that we do not need to have that power with regard to a quasi-judicial officer. Ultimately, that substantive issue is a debate to be had on another day. The point at clause 3 of the bill is about the term "person acting judicially". I turn specifically to the clause that we are about to agree to. I hasten to say that we, the opposition, will be agreeing to it, but I hope that those who ultimately undertake the work of a statutory review in due course will recall this, because I was at pains to make the point at clause 3 that this ought to be considered in five years time when the act is reviewed. We are going to repeal the Evidence Act 1906. We are about to repeal the evidence law that came into effect in Western Australia more than 100 years ago and replace it with this gigantic new law, and there is at least one provision in here that warrants a further closer look in five years time when they will be required to review this law. That is because the definition of "person acting judicially" at page 9 of the bill reads as follows:
(a) means any person or body having, in this State, by law or by consent of the parties, authority to hear, receive and examine evidence; but
(b) does not include —
(i) the State Administrative Tribunal or a member of the State Administrative Tribunal exercising the jurisdiction of the Tribunal; or
(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;
In other words, what happens at clause 3, as made clear during the examination of it during Committee of the Whole House, is that we have this broad definition of a person acting judicially, which is any person who has the authority to hear, receive and examine evidence. What was uncovered during the examination of clause 3 is that that includes the chief assessor for criminal injuries compensation in this state and those who take and hear evidence at WorkCover, to give just two quick examples. All these individuals are captured by this definition of "person acting judicially", but not the State Administrative Tribunal. The State Administrative Tribunal is not to be included in this context. It is interesting. I wonder whether members are aware that the President of the State Administrative Tribunal is a Supreme Court judge. I wonder whether members are aware that the Deputy President of the State Administrative Tribunal is a District Court judge. A Supreme Court judge and a District Court judge are the two head honchos of the State Administrative Tribunal, and then there are all the other tribunal members. We are saying here that they do not meet the definition of a person acting judicially. People should ask why we are doing that.
That was the question that I posed to the parliamentary secretary at clause 3. I commend him again for the way in which he handled those matters. Although there could not be a meeting of the minds on that occasion, I want to get it on the record during the third reading: I expect this matter to be addressed in five years time when the statutory review is conducted. Hopefully some of us will be around in five years time to follow up on this. If I am here following this up, those who are here will remember this day and they will say, "Yes, I remember when the honourable member was making quite a point about the definition of a person acting judicially".
I move on now and I assure the parliamentary secretary I do not intend to take as long reporting back to the house in respect of all of the other clauses, given that I have only managed to get up to clause 3 and there are some 492 clauses. I think the parliamentary secretary would agree that the bulk of the work was done early on. Many of the other matters were non-contentious and ancillary to the process.
I do at this time, Deputy President, wish to draw to your attention that at clause 6 there was what I would say was quite an interesting discussion about what is defined as "references to documents". In particular, I took some time during Committee of the Whole House to examine clauses 6, 7 and 8, as a package, dealing with "References to documents", "Representations made in documents" and "References to availability of documents and things". The reason that this was done is that it becomes very clear to anybody who has a particular interest in this matter, and very clear to members, that "documents" includes the package of documents that was tabled by the Parliamentary Secretary to the Minister for Health Infrastructure. These sittings are usually referred to as the spring sittings. It is another interesting little convention in the Parliament here that we have these autumn sittings and spring sittings. We are currently considered to be in the spring sittings, notwithstanding the fact that we started these post–winter recess sittings in August. Be that as it may, during these spring sittings the Parliamentary Secretary to the Minister for Health Infrastructure tabled a set of documents, including a memorandum to the house and documents with regard to the rapid radiation leakage issue at Sir Charles Gairdner Hospital.
The point is that the "References to documents", "Representations made in documents" and "References to the availability of documents and things" in this Evidence Bill 2025 all reinforce the point that these documents that were tabled in this place by the Parliamentary Secretary to the Minister of Health Infrastructure—after, I might add, quite a bit of work had to be done by the opposition because the minister himself in the other place was so resistant to having this information tabled. I will leave it to other members to decide why it would be possibly the case that Minister Carey would take so long to have these particular documents tabled, but that is what the record reflects. Nevertheless, those particular clauses of the bill, which were examined at length during Committee of the Whole House, reconfirm that those documents and the representations on them could indeed be considered evidence that could be relied upon at any particular hearing on a later occasion.
There was also examination during Committee of the Whole House in respect of clause 13, "References to offspring and parents". Those members who were participating at that particular time will recall that there was this interesting discussion that took place around the distinction between children and offspring. Today is not the day to relitigate those issues, but for those who have a keen interest in the distinction between the definition of offspring and a child, I would commend to them the examination and scrutiny that took place at clause 13.
Examination also took place in respect of a number of other clauses early on in the bill, including clause 15, "Extended application of certain provisions". This goes to my earlier point about a person acting judicially and the definition of a tribunal and so forth. In addition, the Committee of the Whole House considered clause 19, "Application of the common law and equity". It is important to note that clause 19, which I imagine we are going to agree to momentarily, is unchanged from the second reading. It reads, if I can summarise it this way, that the common law—in other words, the law that develops over time by the courts of Western Australia—is not affected by the operation of this bill unless it has been expressly said to be so. One thing we can take from that is that, as you would expect and as is rightly the case, the Parliament is not interfering with the courts' capacity to continue to allow the common law to develop hereon in. There was quite a discussion between me and the parliamentary secretary trying to identify, at the end of the day, to what extent the government is trying to codify those common law principles and rules that have developed over time in this particular bill. It is doing that in large part but not, could we say, in an exhaustive fashion. That was really the point at clause 19.
I turned then to clause 25, and the clauses that surrounded that, dealing with compellability of witnesses. I wish I had more time than what we have today to deal with this, but there was quite an examination about a difference of approach taken to compelling a person to take witness. I implored members of this place at that time—I appreciate that some members may well have been away on urgent parliamentary business—to be familiar with the fact that this bill gives them, as members of Parliament, a special privilege: as a member of Parliament they cannot be compelled to give evidence in a court if it would interfere with the member sitting in this place. For example, if a member were told they were compelled to appear in a court tomorrow on Friday 19 September, yes, that would be permissible. The member would be compelled to attend. In fact, the only way that a member of Parliament would not be able to do that, or to avail themselves of some mechanism, would be if they had a committee hearing. I do not know, but perhaps tomorrow one of the committees may well be meeting. If a member were on a committee tomorrow taking evidence on the review of the firearms legislation, or something like that, and being compelled to appear before a court tomorrow, the member would be able to say, "No, I won't be attending actually" and they would be able to rely on this particular provision in the act. Might I say, it is entirely appropriate that that be the case.
A lot of that work was done then on Wednesday 10 September. I will quickly now turn to some of the scrutiny and examination that was undertaken on Thursday 11 September.
The Deputy President: Order, member! Noting the time, does the member wish to seek leave to continue his remarks at a later stage?
Hon Nick Goiran: Deputy President, I might note that I am being compelled—no, I am not! I am being requested by the Leader of the House to seek leave, and I do so.
Leave granted for the member's speech to be continued at a later stage of the sitting.
Debate adjourned, on motion by Hon Lauren Cayoun.
(Continued at a later stage of the sitting.)
Sitting suspended from 1:00:00 pm to 2:00:00 pm
