Bills
Evidence Bill 2025
Third reading
Resumed from an earlier stage of the sitting.
Hon Nick Goiran (Leader of the Opposition) (2:04 pm) : I rise to continue the third reading debate on the Evidence Bill 2025. Before I do, I pass my congratulations to Hon Samantha Rowe on her elevation to the minister representing the Treasurer, pursuant to the recent tabled statement! I should say for the benefit of Hansard that is said in jest!
As we are considering the Evidence Bill 2025, members will be aware that prior to the luncheon interval we were considering a number of the clauses that have been scrutinised at length in the Committee of the Whole House process. At that time, I had been particularly considering clause 25 and the clauses in that division of the bill—part 2, division 1—dealing with the broader issue of the competence and compellability of witnesses. I had drawn to the attention of members that the examination of those clauses reconfirmed the privilege that exists for members of Parliament to resist any compulsion for them to give evidence in court or at a hearing in the limited circumstances it would impact upon their parliamentary duties in terms of a parliamentary sitting or a parliamentary committee meeting. I should say as well that the clauses examined in part 2, division 1, subdivision 1 of the bill also looked at issues of the competence and compellability of judges and jurors. Then, quite a bit of time was spent looking at a special provision to deal with witnesses in public revenue cases.
The examination of clause 29 was comprehensive but perhaps dissatisfying. The reason I say that is that to the best of my recollection, the examination of clause 29 made it clear that this special rule of evidence that will apply to public revenue cases seems not to be really used. Clause 29 indicates that it only applies to proceedings that might be described as a proceeding for a contravention of a provision of the Duties Act 2008 or a proceeding for a contravention of a provision of an act relating to the public revenue and/or any proceeding brought by or on behalf of, or against, the state under a provision of an act referred to in those two previous paragraphs—that is, the Duties Act 2008 or an act relating to the public revenue. Upon examination of that clause it became clear that it is not really being used and these sorts of proceedings are not really on foot. If I recall correctly, I asked for some data to be provided. In fairness to the parliamentary secretary, that data was not readily available. But I question the necessity of clause 29, which, as I say, is a special provision dealing with witnesses in public revenue cases. Nevertheless, it is what it is. It is being retained. There was no motion on the part of the opposition or any member to have it deleted. There was an extensive examination of the clause but, as I say, it was ultimately a little dissatisfying that we were not really able to get to the bottom of the necessity for the clause to be retained.
I should also add in passing—it was perhaps remiss of me not to mention this earlier—that this gigantic bill before us has an extensive number of notes. I think it is worth putting on the record that those notes are worthwhile because they provide for members using what will be the Evidence Act 2025 a comparison with the provision in either the existing 1906 Western Australian law or, alternatively, the Commonwealth law and, on occasion, the New South Wales law. In other words, it is an indication of where the provision came from in the pursuit of conformity.
It is also worth noting at this point, if it is not already obvious, that specific scrutiny and examination was not undertaken on every single clause in this gigantic bill. The bill has some 492 clauses. Many were passed over, not in the sense that they were unimportant but because there was, in the view of members evidently, not a necessity to pose particular questions on those clauses. At clause 57, examination was undertaken on what is described as a restriction on who can directly cross-examine a witness. One might say that, from a procedural point of view, this was the most contentious or controversial area of the examination by the Committee of the Whole House. Briefly, by way of explanation for that, it is fair to say that it was the only clause on which the Committee of the Whole House divided and there was a divergence of views on how clause 57 should be addressed. It is worth noting very briefly at the third reading stage of the bill what that commotion was all about.
I should say, particularly in fairness to the hardworking parliamentary secretary, that the amendment that I moved was entirely without notice. I appreciate that members in the chamber had to get their head around what was going on with clause 57 in a very short space of moments—perhaps, at best, I might charitably say "a few minutes". I seem to recall that there was a time when there were not too many of us in the chamber—maybe barely a quorum—and then all of a sudden the chamber was full. The reason for that was what I might describe as a gentlemanly dispute between the parliamentary secretary and me on the necessity of one of the limbs of clause 57. I wish to take a moment to explain that now.
Clause 57, as it is about to be passed, says:
(1) In a criminal proceeding, an accused who is not represented by legal counsel—
So, an unrepresented accused individual—
is not entitled to directly cross-examine —
(a) a child; or
(b) if the proceeding is for a sexual offence — the complainant …
Then there is a third scenario, and that is if the proceeding is for what is described as a criminal or identified organisation offence. What we as a house are saying—it is worth noting that this is no different from section 106G of the existing 1906 act—is that we do not want an unrepresented accused person to be able to directly cross-examine a child, a complainant in a sexual offence case or a person who is involved in a criminal or identified organisation offence. We might think of an outlaw motorcycle gang or something of that nature.
As the parliamentary secretary, to his credit, quite rightly pointed out during the scrutiny of the clause, that is not to say that a person is unable to have any form of cross-examination. In fact, there are mechanisms that allow the person to pose their questions—for example, via the presiding officer. It would be a bit like if I wanted to ask a question of Hon Dan Caddy and I was not able to ask him directly, I would have to pose it through you, Acting President, and you might then articulate the question to the person to whom it is directed. That is how the process works at the moment. But there was this contentious extra provision that the government sought to defend on the basis of futureproofing, which would allow—when this bill passes for the third time, it will be the case—the government, at any time that it likes, to prescribe other scenarios in which that special arrangement would take place.
Why I objected so strongly to that at the time is that futureproofing has become the norm in the lawmaking of Western Australia. Every time a question is asked about why we are giving these special regulation-making powers to executive government—it is, I think unfortunately, a side-effect of the 41st Parliament and has now become the norm—whichever minister or parliamentary secretary is representing the government on a particular bill just routinely regurgitates the line that it has been included for futureproofing purposes. The question that I really wanted members at the time that I called the division to consider was whether that is the standard that we are prepared to accept as a house of review. When anyone comes to the table and says, "We would like to include this provision for futureproofing purposes", are we prepared to just continue to say yes? My strong submission at the time, which, it needs to be acknowledged, did not enjoy the consensus of a majority of the chamber, was that that is not what we want to be doing. If executive government would like to have the special lawmaking privilege of being able to write in, at the stroke of a pen, a new law or provision, it has to justify it.
Indeed, there are circumstances in which those kinds of scenarios are justified. Quickly, by way of example, I give the scenario in which a person needs to complete a form consistent with what has been prescribed in the regulations. We do not want to sit here in the house of review and agonise over the manner and form of the form itself. That is not a good use of the time of the house of review. That is an important administrative matter that should be delegated to executive government; it can determine what the form looks like. The job of the house is just to say that an important protective mechanism is that a form exists. That is an example of when the house delegating regulation-making power to the government is appropriate. But my submission at the time, and I put it again now on the third reading of the bill, but not with the intent of opposing the third reading—to be absolutely clear, the opposition will be supporting the third reading of the bill, but I want to get this on the record for the benefit of the 42nd Parliament—was that the government needs to do better than to simply say that it is including it for futureproofing purposes. As I said, I know that that was not sufficiently persuasive on that occasion, but I hope it has been somewhat instructive for further consideration of future bills.
I would be somewhat dismayed, Acting President, if we get to the end of the 42nd Parliament and, as a house of review, each and every time a question is asked about a regulation-making power, the answer provided is that it is for futureproofing purposes, and we accept that every single time for the duration of the next four years. I would be dismayed at that outcome. I do hope we are able to, in a respectful fashion, in the fashion in which we have a duty, challenge executive government on this, not in an adversarial fashion, but just by asking for justification and for it to be put on the record why this regulation-making power is necessary. Be that as it may, some time was spent on that point at clause 57, and I report that, at this time, clause 57 remains unchanged despite my best efforts.
Clause 61 deals with something that is described as the "original document rule". It will be abolished. The parliamentary secretary provided a very comprehensive explanation for that action, and I commend it to the house. Thereafter, several other clauses were examined. To the extent that I can address them now in the limited time available to me, I want to draw members' attention to clause 114. The Committee of the Whole House examined the admissibility of tendency evidence in proceedings involving child sexual offences. Again, it was the case that the parliamentary secretary provided a substantial response, essentially drawing to our attention, if my memory serves me correctly, that the purpose of clause 114 is to mirror a clause in the New South Wales legislation, and it was the government's submission that it would be the best way forward and that indeed the Law Reform Commission of WA had recommended a similar provision. That was certainly persuasive enough for the opposition.
A number of clauses in the bill also deal with the whole issue of delegating regulation-making powers to the government. I do not propose at this time to reiterate each and every one of those scenarios, but I do want to make this quick ancillary point. On each of those occasions, I asked the parliamentary secretary for a justification for the regulation-making power, and one was provided. It should be noted that there was not, then, on each and every occasion, an attempt by me or the opposition to strike out those provisions. On a case-by-case basis, it could be said that the explanation of futureproofing is satisfactory. My problem is when we accept it just because those words are articulated. In contrast to the earlier example I gave, executive government has had the opportunity for years, and it should be said it is governments of both persuasions, to prescribe other classes, but that has never happened. After all of this time it has never been prescribed. Despite being asked, "What are you concerned about and who do you intend to prescribe?", nobody has been identified. In these circumstances, I think simply saying "futureproofing" is not good enough. But there are other circumstances raised by this bill on which, it should be said, the parliamentary secretary provided an explanation, albeit not indifferent, but persuasive enough. Certainly, it was for me.
Clause 200 might be considered somewhat controversial in the sense that it puts beyond doubt that there is no opportunity for a person to exercise what might be described as the "confessional privilege" in proceedings related to child sexual offences or sexual abuse. I might indicate that there was, again, quite an examination between me and the parliamentary secretary, and I put on the record that I certainly have not had any third-party advocacy on this particular point. I suspect there are a couple of reasons for that, Acting President. It is partly because, as the parliamentary secretary explained, this provision was to enshrine something that is already the case. Members who were here in the previous Parliament will remember the legislation that dealt with this particular issue. In that sense, it is not anything new. Clause 200 abrogates religious confession privilege in child sexual offence proceedings and civil child sexual abuse proceedings consistent with the mandatory reporting regimes we previously agreed to in this house. I think that is one reason why there probably has not been any third-party advocacy on this point.
The second reason, and it is my educated guess that this is the case, and it is consistent with what I said some time ago when we last considered this issue, there was no real third-party advocacy on all of this is that, ultimately, it is a fairly benign and unenforceable provision. I think that it is something about which much ado has been made but, ultimately, there are so many other ways the matter can be addressed and it is very, very difficult for prosecuting authorities to truly ensure that these types of provisions have any substance behind them. It is one thing for a person to not be able to claim confessional privilege, but it is another thing for them to give evidence that means anything or for a prosecuting authority to be able to identify that a person has information available to them that they have not brought forward. I have said previously that I do not really have any confidence that these provisions will have any material impact and I have not heard of any cases—I stand to be corrected, and I welcome members who are familiar with them to draw them to my attention—in which confessional privilege has been exercised or enforced or brought about any particular result. As I say, I think it is important for us to note that there was no third-party advocacy on the inclusion of clause 200, and, accordingly, the Committee of the Whole House passed the clause.
I also wish to draw attention to the examination by the Committee of the Whole House on clause 206, which deals with the exclusion of certain evidence relating to a complainant or a witness. I should also acknowledge the work undertaken by Hon Dr Brad Pettitt and Hon Jess Beckerling on the admissibility of recorded statements. I did not contribute on those provisions only because I thought they did a very fine job in scrutinising them, it might be fairly said, at length, on Thursday 11 September.
In addition to those particular clauses, the rest of the matters—remember there are more than 400 clauses in this bill—were dealt with earlier this week, on Tuesday 16 September, over the course of a few hours. We continued to deal with the issue of recorded statements being admissible as evidence-in-chief. On the following clause, clause 241, I asked the parliamentary secretary about the rationale for dealing with admissibility requirements by regulation rather than incorporating them into the bill. That is a theme that emerged on a few occasions during the Committee of the Whole House process. As lawmakers in the 42nd Parliament, I think it is important we question whether some of the material that can easily be included in regulations ought to be included in the primary bill and then the primary act. There are good reasons for doing this, Acting President, not the least of which is that it is easier for practitioners—that is not limited to legal practitioners and includes individuals who need to rely upon the law—to go to one place to find the state of the law, rather than having to go on a legal treasure hunt and draw a line between the dots to ascertain what the complete law looks like. Rather than simply leaving it to executive government to do things by way of regulation, it is desirable whenever practicable and possible for things to be included in the primary legislation. That said, the parliamentary secretary provided a satisfactory explanation during debate on clauses 241, 253 and 259, when all those matters in respect of regulations were put forward.
I do not have too much time left, but I want to note that the parliamentary secretary moved, on my count, some seven amendments to the bill. Those seven amendments, along with the three I moved, will now be sent to the other place before this bill can be presented to the Governor to receive assent. I hope the members in the other place will agree to those 10 amendments; I suspect that they will, but ultimately that is a matter for that house, not us. It was interesting. To summarise the amendments made by the government, they were primarily driven by feedback provided by the Parliamentary Counsel's Office. The Parliamentary Counsel's Office brought certain issues to the attention of the government. Where did those issues arise? The real genesis of it was feedback provided by the Director of Public Prosecutions. When was that feedback provided? It was provided, as I understand it, in January this year. Why is that relevant? Last year, a package of evidence law bills were presented to both houses of Parliament, but they did not pass through both houses. Now is not the time to go through the reasons for that, but in the new year the government received solicitations from the Director of Public Prosecutions regarding the importance of reinserting a special rule with regard to business records. The government was obviously persuaded—I should say, at least, the current Attorney General was obviously persuaded—that that should be included in the bill that is before us today.
That bill was introduced in the other place by the learned Attorney General and passed through that place, albeit with some amendments. It then came into this place with further amendments. They were the amendments that were included on the advice of the Parliamentary Counsel's Office. Quite a bit of time was spent in Committee of the Whole House on this, going as far back as clause 1. Because there is not sufficient time to address this properly, I will simply say that I am pleased to report that, because of the work done in the Committee of the Whole House, it was verified that the bill being sent back to the other place, as it is currently proposed, meets the expectations of the Director of Public Prosecutions. The parliamentary secretary and the advisers went to the effort of going and checking with the Director of Public Prosecutions. I make that point now for two purposes: firstly, I think it needs to be on the record and, secondly, that ought to be the practice. It is good that Parliamentary Counsel does its very difficult job. I do not think anyone would want to trade places with Parliamentary Counsel and have to put these things together. It provides advice on improvements; that is exactly what it should be doing. But we needed to go back to the original advocate for the change or reinstating of the law—in this case, the Director of Public Prosecutions—to make sure that it was in agreement with that, because words matter, particularly in court and in the interpretation of these provisions.
I regret that I do not have more time to unpack this gigantic bill, but I will conclude by indicating that it has the support of the opposition. I hope members in the other place will agree to the 10 amendments that have been put to them—seven from the parliamentary secretary and a mere three from me—and that in five years' time, when this statute is reviewed, they will take into account all the work that was done by the Committee of the Whole House in this place when presenting a report to executive government on any further changes that should be made. I understand that that will happen with the benefit of probably three and a half years of practise with this new evidence law. If that is not good enough, there will be another review five years thereafter.
Bill read a third time, on motion by Hon Dan Caddy (Parliamentary Secretary) and returned to the Assembly with amendments.
