Report 150
STANDING COMMITTEE ON UNIFORM LEGISLATION AND STATUTES REVIEW Evidence Bill 2024
Presented by Hon Donna Faragher MLC (Chair)
October 2024
41ST PARLIAMENT
Standing Committee on Uniform Legislation and Statutes Review
Members as at the time of this inquiry:
Hon Donna Faragher MLC (Chair) Hon Martin Pritchard MLC (Deputy Chair)
Hon Dr Sally Talbot MLC Hon Rosie Sahanna MLC
Staff as at the time of this inquiry:
Caris Tysoe (Advisory Officer)
Emily Briggs (Committee Clerk)
Address:
Parliament House 4 Harvest Terrace, West Perth WA 6005 Telephone: 08 9222 7300 Email: lcco@parliament.wa.gov.au Website: www.parliament.wa.gov.au
ISBN 978-1-923220-05-8
CONTENTS
Executive summary ................................................................................................................................................................... i
1 Introduction ......................................................................................................................................................................4
2 Inquiry procedure ..........................................................................................................................................................4
3 Supporting documents ...............................................................................................................................................4
4 Background .......................................................................................................................................................................4
5 Structure of uniform legislation .............................................................................................................................5
6 Provisions that impact upon Parliamentary sovereignty and law-making powers ....................5
Clauses 3 and 15: Application of the Bill to parliamentary proceedings ..............................................5 Clause 2: Commencement .................................................................................................................................... 14 Clauses 241 and 253 ............................................................................................................................................... 14 Clause 371 ................................................................................................................................................................... 16 Review ........................................................................................................................................................................... 17 Transitional regulations ......................................................................................................................................... 18
Appendix 1 Attorney General’s response to committee queries ............................................................. 21
Appendix 2 Attorney General’s response to further committee query ................................................ 39
Appendix 3 Clerk’s letter of advice .......................................................................................................................... 42
Appendix 4 Attorney General’s position regarding proposed amendments ..................................... 46
Glossary ...................................................................................................................................................................................... 48
Executive summary i
EXECUTIVE SUMMARY
1 The Evidence Bill 2024 (Bill) proposes to introduce a version of the Uniform Evidence Law (UEL) in Western Australia.
2 The law introduced by the Bill is drawn from the current Evidence Act 1906 (WA), Evidence Act 1995 (Cth), Evidence Act 1995 (NSW), and also contains new clauses unique to the Bill.
3 Some provisions within the Bill may impact upon Western Australian Parliament’s sovereignty and law-making powers.
4 In particular, the Bill provides for:
• extended application of certain provisions which seek to apply to parliamentary proceedings
• commencement of most provisions of the Bill on a day fixed by proclamation
• one Henry VIII clause and two clauses with potential for Henry VIII effect
• a review clause with uncertain commencement
• transitional regulation making powers
5 The Committee has made 9 findings and 4 recommendations regarding parliamentary sovereignty issues for the Legislative Council’s consideration during debate on the Bill.
6 Of particular note, the Committee wishes to draw attention to recommendations 1 to 3 which are in response to the Bill’s potential effect upon parliamentary sovereignty as it relates to parliamentary proceedings, and recommendation 4 which relates to the Bill’s review clause.
Findings and recommendations Findings and recommendations are grouped as they appear in the text at the page number indicated:
FINDING 1 Page 5
Neither the second reading speech nor the explanatory memorandum to the Evidence Bill 2024 identified any Henry VIII clauses.
FINDING 2 Page 12
The extended application provided by clauses 3 and 15 of the Evidence Bill 2024 impinges on parliamentary sovereignty as it relates to parliamentary proceedings.
RECOMMENDATION 1 Page 12
The Evidence Bill 2024 be amended as follows:
Clause 3
Page 9, lines 5 to 7 — To delete the lines and insert:
(b) does not include —
ii Executive summary
(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;
RECOMMENDATION 2 Page 13
The Evidence Bill 2024 be amended as follows:
Clause 178
Page 135, lines 7 to 10 — To delete the lines and insert:
judicially.
RECOMMENDATION 3 Page 13
The Evidence Bill 2024 be amended as follows:
Clause 396
Page 300, lines 9 and 10 — To delete “by a court, judge or person acting judicially under the former Act” and insert:
under the former Act by a court, judge or person acting judicially (as that term is defined under section 3 of the former Act)
FINDING 3 Page 16
Clauses 241 and 253 of the Evidence Bill 2024 erode the Western Australian Parliament’s sovereignty.
FINDING 4 Page 16
Clauses 241 and 253 of the Evidence Bill 2024 are justified for regulating technical matters and requirements.
FINDING 5 Page 17
Subclause 371(1) erodes Parliamentary sovereignty by delegating Parliament’s legislation making power.
FINDING 6 Page 17
Subclause 371(1) is justified to support the procedural and technical elements of the Act.
FINDING 7 Page 18
Subclause 372(1), when read with subclause 2(b), does not provide sufficient certainty.
Executive summary iii
RECOMMENDATION 4 Page 18
Subclause 372(1) of the Evidence Bill 2024 be amended to link the timing of review of the Act to the day on which the substantive provisions of the Act come into operation.
FINDING 8 Page 19
Clause 399 of the Evidence Bill 2024 erodes the Western Australian Parliament’s sovereignty and law-making powers.
FINDING 9 Page 20
Clause 399 of the Evidence Bill 2024 is justifiable in order to effect a smooth transition to the Uniform Evidence Law, noting the use of these regulations is limited through the scope of transitional matters set out by the Bill.
4
1 Introduction 1.1 On 14 August 2024 the Evidence Bill 2024 (Bill) was introduced into the Legislative Council. It
was referred to the Standing Committee on Uniform Legislation and Statutes Review (Committee) under Standing Order 126.
1.2 Under the Standing Orders, the Committee was due to report by 15 October 2024. The Committee sought and was granted an extension of time to 24 October 2024.
1.3 The Bill’s purpose is to introduce a version of Uniform Evidence Law into Western Australia.
2 Inquiry procedure 2.1 The Committee posted the inquiry on its webpage.1
2.2 The Committee’s terms of reference confine it to investigating whether a Bill may impact upon the Western Australian Parliament’s sovereignty and law-making powers. In the course of considering this, the Committee routinely considers whether the Bill has sufficient regard to the institution of the Parliament. Part of that consideration is whether the Bill affects parliamentary privilege in any manner.
2.3 The Committee is not able to consider any other matter, including the policy of the Bill. Accordingly, no submissions were sought.
3 Supporting documents 3.1 The Committee received copies of the Bill, its second reading speech and Explanatory
Memorandum (EM) on a confidential basis prior to its introduction into the Legislative Council.
3.2 Standing Order 126(5) states:
The member in charge of a Bill referred to the Committee shall ensure that all documentation required by the Committee is provided to the Committee within 3 business days after referral…
3.3 The Committee thanks the Attorney General for providing the information required by Ministerial Office Memorandum 2022/012 in advance.
4 Background 4.1 In 1979 the Australian Law Reform Commission (ALRC) reviewed the law of evidence. In its
final 1987 report, it recommended that Australian jurisdictions adopt Uniform Evidence Law. The report included the proposed model legislation.
4.2 In 1995, the Commonwealth introduced the Evidence Act 1995 (Cth), which was based on the ALRC’s model legislation.
4.3 Uniform Evidence Law has been introduced in the Commonwealth, New South Wales, Tasmania, Victoria, the Northern Territory, and the Australian Capital Territory. Each of these jurisdictions have based their legislation on the Commonwealth Act.
1 Legislative Council, Standing Committee on Uniform Legislation and Statutes Review, Parliament of Western
Australia, 2023, accessed 25 September 2024. 2 M McGowan, Ministerial Office Memorandum, Uniform Legislation and Statutes Review Committee, Executive
Government Services, 3 August 2022, accessed 25 September 2024 (MM2022/01).
5
4.4 The Evidence Bill 2024 draws from the Commonwealth Act, the New South Wales Evidence Act 1995 (NSW), and the current Evidence Act 1906 (WA). It also includes new provisions which are not within the model legislation or the current Western Australian Evidence Act.
5 Structure of uniform legislation 5.1 The Bill implements a mirror scheme of uniform law. This involves legislation being enacted
by using a common model bill.
5.2 The Bill uses the model bill of the Commonwealth and New South Wales legislation, and is also informed by the review of these pieces of legislation conducted in 2005. The Bill also draws from evidence law in Western Australia and introduces new provisions.
6 Provisions that impact upon Parliamentary sovereignty and law-making powers
6.1 The second reading speech and/or explanatory memorandum for a bill should identify any Henry VIII clause in that bill, provide a rationale for it and explain its practical effect.
6.2 A “Henry VIII” clause allows an Act to be amended by subordinate legislation or Executive action. Providing this power to the Executive erodes Parliamentary sovereignty.
6.3 Although the Bill contains Henry VIII clauses,3 the explanatory memorandum failed to identify any of these.
FINDING 1
Neither the second reading speech nor the explanatory memorandum to the Evidence Bill 2024 identified any Henry VIII clauses.
Clauses 3 and 15: Application of the Bill to parliamentary proceedings
Extended application of the Bill to proceedings before a ‘person acting judicially’
6.4 Clause 3 states ‘person acting judicially’:
(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 the State Administrative Tribunal or a member of the State Administrative Tribunal exercising the jurisdiction of the Tribunal;4
6.5 The above definition is broad enough to implicitly include proceedings in Parliament.
6.6 When queried, the Attorney General stated:
It is considered that a ‘person acting judicially’ would include 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.5
6.7 Clause 15 states:
3 For example, clause 399 authorises the making of regulations that may provide that specified provisions of the Act
do not apply or apply with specified modifications. 4 Evidence Bill 2024, cl 3. 5 Attorney General, letter, 2 September 2024, pp 1-2 (see Appendix 1).
6
(1) A provision of this Act applies to a proceeding before a WA tribunal or a person acting judicially, whether or not the tribunal or person acting judicially is a court, if this Act expressly provides that the provision extends to a proceeding before a WA tribunal or a person acting judicially.
(2) If a provision of this Act extends to a proceeding before a WA tribunal or a person acting judicially, a reference in the provision to a court or a WA court includes a reference to a WA tribunal, or a person acting judicially, as the case requires.6
6.8 Clause 15 provides for certain provisions to have extended application. This includes clauses which apply to proceedings before a ‘person acting judicially’.
Uniform Evidence Law
6.9 The use of the term ‘person acting judicially’ within the Bill deviates from Uniform Evidence Law in a significant way. The term, and its use to extend the application of certain clauses of the Bill, are drawn from the Evidence Act 1906.
6.10 The Committee considered multiple other jurisdictions which have introduced Uniform Evidence Law. However, the term ‘person acting judicially’ was not used within the evidence law introduced in any of those jurisdictions.
6.11 Other state and territory jurisdictions define a term for state ‘court’7 which is then used to expand the application of certain clauses. In each case, the definition provided for that term states:
…and includes any person or body (other than a court) that, in exercising a function under the law of the State, is required to apply the laws of evidence.8
6.12 This definition is sufficiently narrow that it does not implicitly or otherwise extend to proceedings by a parliament.
6.13 Clause 3 of the Bill also defines the term ‘WA Court’. Although not identical to other jurisdictions, the definition for that term is sufficiently narrow to avoid extending to proceedings by Parliament. However, the Bill then proceeds to use the term ‘person acting judicially’ to extend application of some clauses further, which is not drawn from Uniform Evidence Law and is not present in the implementation of that law in other jurisdictions.
6.14 Further, certain clauses in the Bill are drawn from Uniform Evidence Law, and the term ‘person acting judicially’ is then used to extend their application.9 Although the clauses themselves are drawn from Uniform Evidence Law, their extended application to a ‘person acting judicially’ (and consequently to proceedings by Parliament) is unique to the Bill and to Western Australia.
6.15 No other State or Territory jurisdiction which has introduced Uniform Evidence Law appears to have sought to extend the application of clauses to parliamentary proceedings.
Parliamentary history of the term ‘person acting judicially’
6.16 The term ‘person acting judicially’ has been present in the Evidence Act 1906 (WA) since its commencement, and its definition has remained unchanged. Prior to 2011 the term had never been regarded as applying to either House of Parliament or their committees. There was no express reference within the Evidence Act 1906 to any intent to override
6 Evidence Bill 2024, cl 15. 7 For example, the term ‘NSW Court’ is used within the Evidence Act 1995 (NSW). 8 Evidence Act 1995 (NSW), Dictionary. 9 For example, clauses 187 and 189.
7
parliamentary privilege. In practice, it has not been treated by Parliament as applying to either House or their committees.10
6.17 In 2011, the Legislative Council considered new provisions for the Evidence Act 1906 and potential application to proceedings in Parliament.
6.18 The Evidence and Public Interest Disclosure Legislation Amendment Bill 2011 (2011 bill) sought to amend the current Evidence Act 1906 (WA) to introduce protections for ‘professional persons and journalists’. This included precluding those persons from being compelled to give evidence in some circumstances. One key feature of the provisions was that a journalist would not be able to be compelled to give evidence disclosing the identity of their source, unless they were ordered to do so by a ‘person acting judicially’ that had first taken into account a series of factors.
6.19 The Parliamentary Secretary confirmed the protection afforded to journalists was intended to apply:
…not only in courts and tribunals, but also to inquiries, such as hearings before the Legislative Assembly or Legislative Council, or committee hearings of both houses of Parliament.11
6.20 In 2011, the Clerk raised the following points:12
• Unless a statutory provision in unmistakable language expressly purports to vary or abrogate parliamentary privilege, the provision does not vary or abrogate parliamentary privilege, or otherwise apply to any proceedings of a House of Parliament, or of its committees
• Parliament cannot be assumed to have varied or abrogated its privileges by mere implication of statute. It follows then, that the broad definitions of the terms “legal proceeding or proceeding”, “inquiry” and “person acting judicially” contained within the Evidence Act 1906 must be construed in their historical legal context, and in the light of the common law pertaining to parliamentary privilege. Viewed properly in this context, nothing in the Bill or the Evidence Act 1906 can be said to vary or abrogate the privileges of the Legislative Council in the manner suggested in the second reading speech.
• Proposed section 20H in clause 5 of the Evidence and Public Interest Disclosure Legislation Amendment Bill 2011 would not affect the privileges of the Parliament and would not apply to an inquiry of the House or its committees. In the absence of any express statutory provision in the Bill the House and its committees will continue to have the ability to ask questions under parliamentary privilege, without reference to the Evidence Act 1906.
10 For example, section 97 of the Evidence Act 1906 provides that all witnesses before a person acting judicially shall
give evidence on oath (unless they suffer from a mental impairment). Committees of the Legislative Council rarely take evidence on oath and this unnecessary formality has been discouraged by the House. See Western Australia, Legislative Council, Procedure and Privileges Committee, Report 20, Administering the Oath or Affirmation to Witnesses in Committee Proceedings, 17 November 2009. Adopted by the House on 24 March 2011, Hansard, p2028.
11 Standing Committee on Procedure and Privileges, Report 23, Reference from the House – Evidence and Public Interest Disclosure Legislation Amendment Bill 2011, Western Australia, Legislative Council, November 2011, para 2.3.
12 Letter dated 26 October 2011. The letter was tabled in the Legislative Council on 8 November 2011: http://www.parliament.wa.gov.au/publications/tabledpapers.nsf/displaypaper/3814059c6edbf385c9f28050482579 4300056fbf/$file/4059.pdf .
8
• The term “proceeding in Parliament” has a specific and judicially recognised meaning. If the policy of the Bill is indeed to vary or abrogate the privileges of the parliament, the term “proceeding in parliament” would have been expressly included within the definition of “legal proceeding or proceeding” in section 3 of the Evidence Act 1906 to put it beyond doubt.
• Notwithstanding the theoretical power to compel answers or the production of documents; political realities, conventions, and professional courtesies may militate against the practical exercise of the power. In particular, a witness's reliance on a general statutory professional confidential relationship provision may be accepted by the House as a reasonable excuse for non-disclosure despite the existence of a power ultimately to compel disclosure even where the provision in question does not expressly apply to proceedings in parliament. This is already the situation with respect to common law principles of natural justice or procedural fairness, which, while not strictly having application in parliamentary proceedings, are routinely respected nonetheless.
6.21 On 7 November 2011 the Clerk also expressed concern that the Bill may expose Parliament to a risk of the courts intervening in parliamentary proceedings.
6.22 Following correspondence between the Clerk, Party Leaders, and State Counsel, the House resolved that the 2011 bill be referred to the Standing Committee on Procedure and Privileges:
for consideration of Clause 5 sections 20G to 20M and their effect, if any, on parliamentary privilege, and report not later than 29 November 2011.13
6.23 The Standing Committee on Procedure and Privileges received submissions from the Clerk of the Legislative Council and State Counsel. It also obtained advice from Mr Bret Walker SC.
6.24 In relation to the possibility of judicial review of parliamentary proceedings, Mr Walker advised:
[T]here is considerable uncertainty whether the courts of law could lawfully decline to decide a case that sought judicial review of the Legislative Council's decision, say; to give a direction under sec 20J (to a journalist to disclose the identity of his or her informant). The text of the proposed provisions provides virtually no foothold for reading them so as to permit judicial review in all cases except parliamentary inquiries. And the only textual shred would be contained in the proposed amendment to the Bill, which of course extends the provisions explicitly to parliamentary inquiries.
The possible availability in the case of parliamentary inquiries of judicial review of a House's direction under sec 20J is, in my opinion, a grave matter in relation to the privileges of the Legislative Council. If judicial review were available, as is quite possible under these proposed provisions, to the same extent for all kinds of proceedings covered by them, the effect would be that (among other things) a Supreme Court judge would have the power and in an appropriate case the duty to examine the parliamentary proceedings and to determine whether, say, the 20J direction by the Legislative Council should be set aside on the ground that it was so unreasonable that no rational members could have so decided.
13 Standing Committee on Procedure and Privileges, Report 23, Reference from the House – Evidence and Public
Interest Disclosure Legislation Amendment Bill 2011, Western Australia, Legislative Council, November 2011, paras 2.5 and 1.1.
9
That so-called Wednesbury possibility of judicial review of discretionary decisions is the most unattractive way of envisaging a conflict between a House and the courts, but other possibilities such as a judicial determination that a House had failed to take into account a relevant consideration or had taken into account an irrelevant consideration are also ways in which differences and disagreements between the judges and the parliamentarians may be decided in court.
This prospect is the antithesis of the non-interference by courts of law which is part of the defining character of Australian legislative chambers.14
6.25 As noted above, another concern raised with the 2011 bill was whether it had the requisite clarity of legislative intention to affect the Houses’ privileges. The Government proposed amendments to clarify this intention, by specifying that within those provisions, both the terms ‘person acting judicially’ and ‘proceeding’ included ‘either House of Parliament or a Committee of either House, or both Houses, of Parliament who, by law, has authority to hear, receive, and examine evidence.’
6.26 The Committee accepted the advice of Mr Bret Walker SC that the Bill as drafted may have the requisite clarity to affect the Houses’ privileges.15 Mr Walker was of the view that the amendments proposed by the Government would put that issue beyond doubt.16
6.27 Mr Walker stated:
In summary, the proposed regulation of the Legislative Council's powers to compel journalists to reveal their sources by means of the provisions proposed by the Bill has the following features. A power to compel would still be available. Circumstances relevant to its exercise would be expressly stipulated. That regulation of power would be imposed by provisions applying - apparently in the same way-to other proceedings outside Parliament. No recognition would be given by this regulation of power to the issue of parliamentary privilege (or power). No express words would distinguish the susceptibility of the Legislative Council to judicial review from the susceptibility of all those other proceedings outside Parliament. No express words would deal with the Article 9 [of the Bill of Rights 1689] problem raised by that common treatment of parliamentary proceedings with all other proceedings.17
6.28 On the basis of this advice, the Standing Committee on Procedure and Privileges concluded that the 2011 bill, as drafted, ‘may qualify the privileges of the Legislative Council’, and with the Government’s proposed amendments would clearly qualify the privileges of the Legislative Council and open the House up to the possibility of judicial review.18
6.29 The 2011 bill was subsequently amended to specifically exclude ‘either House of Parliament or a Committee of either House, or both Houses, of Parliament who, by law, has authority to hear, receive, and examine evidence’ from the definition of ‘person acting judicially’ for the purpose of the new provisions.
14 Western Australia, Legislative Council, Procedure and Privileges Committee, Report 23, Reference from the House:
Evidence and Public Interest Disclosure Legislation Amendment Bill 2011, 29 November 2011, Appendix 7, pp 4-5. 15 Western Australia, Legislative Council, Procedure and Privileges Committee, Report 23, Reference from the House:
Evidence and Public Interest Disclosure Legislation Amendment Bill 2011, 29 November 2011, p 5. 16 Western Australia, Legislative Council, Procedure and Privileges Committee, Report 23, Reference from the House:
Evidence and Public Interest Disclosure Legislation Amendment Bill 2011, 29 November 2011, p 6. 17 Western Australia, Legislative Council, Procedure and Privileges Committee, Report 23, Reference from the House:
Evidence and Public Interest Disclosure Legislation Amendment Bill 2011, 29 November 2011, Appendix 7, pp 8-9. 18 Western Australia, Legislative Council, Procedure and Privileges Committee, Report 23, Reference from the House:
Evidence and Public Interest Disclosure Legislation Amendment Bill 2011, 29 November 2011, p 6.
10
6.30 The scope of that inquiry was limited to Clause 5, sections 20G to 20M. There was no consideration of the broader use of ‘person acting judicially’ under the Evidence Act 1906 (WA).
Application of the Evidence Bill 2024
6.31 The Committee notes that the Bill has retained the specific exclusion of parliamentary proceedings from the meaning of ‘person acting judicially’ for the purpose of journalist privilege.19 However, the term ‘person acting judicially’ has been retained without that exclusion for the remaining provisions of the Bill.
6.32 Multiple provisions within the Bill will extend to proceedings before a ‘person acting judicially’.20
Does the Bill affect parliamentary sovereignty?
6.33 The Attorney General’s correspondence confirmed that it is intended for the term ‘person acting judicially’ to include 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.21
6.34 The Attorney General stated:
It is my view that the extended application of the … clauses to Parliament is appropriate and does not impinge on Parliamentary sovereignty or Parliamentary privilege.22
6.35 This view was on the basis that the clauses the Bill seeks to apply to Parliament fall within two categories; ‘facilitatory’ clauses and ‘other’ clauses.23
‘Facilitatory’ clauses
6.36 According to the Attorney General, ‘facilitatory’ clauses:
provide short cuts and presumptions about the authenticity and regularity of evidence of a kind that is generally undisputed, for example, Australian laws, public documents. Commonwealth records etc. None of the facilitatory clauses oblige the person acting judicially to use them, however the person acting judicially can do so if they wish.24
6.37 The Committee sought advice from the Clerk regarding the Bill’s potential to affect Parliamentary sovereignty. The Clerk’s response is provided at Appendix 3.
6.38 The Clerk advised that a number of the clauses are more than facilitatory and raise the risk of the Legislative Council’s proceedings being brought into question in another place in contravention of Article 9 of the Bill of Rights 1688.
6.39 The Clerk also raised that Clauses 323 to 327 allow a person acting judicially to presume that certain documents are what they purport to be, unless the contrary is proved, or in at least one case if there is sufficient doubt. Although these clauses could be seen as merely facilitatory and assisting the person acting judicially to expedite proceedings by relying on
19 See Evidence Bill 2024 cl 178. 20 These include clauses 318, 322 to 327, 328 to 330, 337, 62, 187, 189, 359 and 396. 21 Attorney General, letter, 2 September 2024, pp 1-2 (see Appendix 1). 22 Attorney General, letter, 20 September 2024, p 3 (see Appendix 2). 23 Attorney General, letter, 2 September 2024, p 4 (see Appendix 1). 24 Attorney General, letter, 2 September 2024, p 4 (see Appendix 1).
11
the presumption, it is not clear how these powers would aid the Parliament given its current ability to presume what it wishes.
6.40 The Clerk highlighted multiple uncertainties regarding the adverse consequences these provisions may have upon parliamentary proceedings. For example:
• by providing that a contrary intention can be proved, would this require a parliamentary body to receive evidence to rebut the presumption if it is sought to be adduced by a participant in an inquiry?
• would a decision to not accept evidence be justiciable, or even arguably justiciable?
‘Other’ clauses
6.41 The Attorney General summarised the ‘other’ clauses, including clause 62, 187, 189 and 359.25
6.42 For clause 62 titled ‘Copies of dutiable instruments’, the Attorney General stated:
If a member of a House of Parliament or a Committee of a House, or a House of Parliament was hearing, receiving and examining evidence and wished to admit a copy of a dutiable instrument, it would need to be satisfied of the things listed in subclause 62(2).26
6.43 Clause 62 extends specifically to ‘a civil proceeding before a person acting judicially’. As set out within the Clerk’s advice in Appendix 3, it is questionable whether parliamentary proceedings would or could be considered ‘civil proceedings’. If not, clause 62 would not apply.
6.44 For clauses 187 and 189, the Attorney General stated:
if a member of a House of Parliament or a Committee of a House, or a House of Parliament was hearing, receiving and examining evidence, and a witness who had been given a certificate by a court appeared and was required to give evidence on topics covered by the certificate, the member, Committee or House could not use that evidence against the witness.27
6.45 Clauses 187 and 189 describe the effect of court issued evidence certificates and disclosure orders to prevent a person acting judicially from using material obtained following the issue of a certificate or order against the person that the certificate was issued to. They are designed to protect a person from self-incrimination. These provisions have a clear and direct impact upon the evidence that can be admitted or the way in which that evidence may be used.
6.46 As advised by the Clerk, there would be limited circumstances where the issuing of an evidence certificate or disclosure order would intersect with a parliamentary body. However, this restriction on the Parliament’s ability to conduct its inquiries as it wishes does impact on the Parliament’s sovereignty. The Committee shares the Clerk’s concern that, at some point, the application of these provisions will result in a dispute between the courts and Parliament.
6.47 In relation to clause 359 the Attorney General stated:
Clause 359 allows a court or person acting judicially to impound and keep a document that has been tendered or produced before the court. Clause 359 is not
25 Attorney General, letter, 2 September 2024, p 4 (see Appendix 1). 26 Attorney General, letter, 2 September 2024, p 4 (see Appendix 1). 27 Attorney General, letter, 2 September 2024, pp 4-5 (see Appendix 1).
12
mandatory and expands, rather than limits, the power of a court or person acting judicially.28
6.48 The Committee agrees that clause 359 is not mandatory. However, that clause is unnecessary and duplicative of the Parliament’s existing privileges. As advised by the Clerk, the source of this law in two places would be unhelpful.
6.49 All clauses within the Bill using the term ‘person acting judicially’ also treat parliamentary proceedings in the same way to proceedings outside Parliament. The Committee is of the view that this gives rise to concerns similar to the 2011 bill:
No express words would distinguish the susceptibility of the Legislative Council to judicial review from the susceptibility of all those other proceedings outside Parliament. No express words would deal with the Article 9 [of the Bill of Rights 1689] problem raised by that common treatment of parliamentary proceedings with all other proceedings.29
6.50 The Committee is of the view that similar to the 2011 bill, the Bill:
• stipulates circumstances relevant to the exercise of power
• will ‘regulate the Legislative Council’s powers’
• will give common treatment to parliamentary proceedings and ‘all those other proceedings outside parliament’
6.51 Further, including Parliament and its proceedings within the extended application of the Act impinges upon the sovereignty of the Western Australian Parliament. As stated previously, it would only be in the rarest and most extraordinary of cases that the Parliament would decide to set some limit on its own operations and legislate so as to limit itself in some way.
6.52 As stated within this Committee’s 69th report:
overriding the operation of Parliamentary privilege by making Parliamentary operations bound by a statute, which dictates the manner in which evidence must be heard or considered, is a significant trespass on the powers, privileges and immunities of Parliament.30
FINDING 2
The extended application provided by clauses 3 and 15 of the Evidence Bill 2024 impinges on parliamentary sovereignty as it relates to parliamentary proceedings.
6.53 Amending the definition of ‘person acting judicially’ to specifically exclude proceedings by Parliament would resolve this matter. The Committee therefore makes the following statutory form recommendation.
RECOMMENDATION 1
The Evidence Bill 2024 be amended as follows:
Clause 3
Page 9, lines 5 to 7 — To delete the lines and insert:
28 Attorney General, letter, 2 September 2024, p 5 (see Appendix 1). 29 Western Australia, Legislative Council, Procedure and Privileges Committee, Report 23, Reference from the House:
Evidence and Public Interest Disclosure Legislation Amendment Bill 2011, 29 November 2011, Appendix 7, pp 8-9. 30 See Western Australia, Legislative Council, Standing Committee on Uniform Legislation and Statutes Review,
Report 69, Criminal Investigation (Covert Powers) Bill 2011, March 2012, p 66.
13
(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;
6.54 The above amendment will make it unnecessary to specifically exclude parliamentary proceedings from the definition of ‘person acting judicially’ within clause 178. It is recommended that clause 178 be amended accordingly.
RECOMMENDATION 2
The Evidence Bill 2024 be amended as follows:
Clause 178
Page 135, lines 7 to 10 — To delete the lines and insert:
judicially.
6.55 Clause 396 provides transitional provisions including the continuing effect of orders and directions made (or things done) by a ‘person acting judicially’ under the current Act.
6.56 In relation to clause 396 the Attorney General stated:
Clause 396 is a transitional clause which provides that orders and directions made, leave granted or other thing done by a court or person acting judicially under the current Act continues to have effect once the current Act is repealed.31
6.57 The Committee notes Parliament has not, in practice, accepted that the application of the Evidence Act 1906 (WA) extends to parliamentary proceedings. The authority of the Evidence Act 1906 (WA) is not ordinarily relied upon to make orders or directions. The Committee is therefore of the view that no transitional provision preserving such orders or directions is required. However, to ensure clarity it is appropriate that the transitional provision offering that preservation operates with the same definition used by the current Evidence Act 1906 (WA), rather than the more specific definition recommended above.
RECOMMENDATION 3
The Evidence Bill 2024 be amended as follows:
Clause 396
Page 300, lines 9 and 10 — To delete “by a court, judge or person acting judicially under the former Act” and insert:
under the former Act by a court, judge or person acting judicially (as that term is defined under section 3 of the former Act)
6.58 The Committee is of the view that without the above amendments, the Bill lacks the requisite clarity of intention to affect parliamentary privilege.
6.59 In drafting the amendments, the Committee sought further advice from the Attorney General. The Attorney General confirmed support for the amendments, noting ‘the provisions of the Bill should not apply to a Member of a House of Parliament or a Committee
31 Attorney General, letter, 2 September 2024, p 5 (see Appendix 1).
14
of a House or both Houses of Parliament, who by law has authority to hear, receive and examine evidence.’ This advice from the Attorney General is contained in Appendix 4.
Clause 2: Commencement 6.60 Clause 2 states:
This Act comes into operation as follows —
(a) Part 1 — on the day on which this Act receives the Royal Assent;
(b) the rest of the Act — on a day fixed by proclamation, and different days may be fixed for different provisions.
6.61 Subclause 2(b) provides that the entirety of the Act aside from Part 1 will come into operation on a day fixed by proclamation.
6.62 Previous reports by the Committee have set out its position that such a clause is an erosion of parliamentary sovereignty. It empowers the Executive controlling the commencement date, rather than Parliament. The Committee has previously stated that there should be sound reasons for Parliament to permit commencement by proclamation.32
6.63 The Attorney General stated:
It is anticipated that the Act (other than Part 1) will come into operation approximately 18 months from assent. At this time, it is expected that all those provisions will commence simultaneously.33
6.64 This provides some assurance regarding the proclamation of the Bill.
6.65 The Committee draws the lack of an express commencement date to the attention of the Legislative Council for consideration during debate on the Bill.
Clauses 241 and 253 6.66 Clause 241(1) states:
(1) Regulations made for the purposes of this section (the statement admissibility regulations) may specify requirements relating to the admission of a recorded statement under this Division, including, without limitation, relating to the following —
(a) the class of police officers who are qualified to obtain a recorded statement;
(b) the manner in which a statement must be obtained;
(c) the manner in which a statement must be recorded;
(d) the extent to which any specified requirements must be met.
6.67 Clause 253(1) states:
32 Standing Committee on Uniform Legislation and Statutes Review, report 136, Legal Profession Uniform Law
Application Bill 2020 and Legal Profession Uniform Law Application (Levy) Bill 2020, Legislative Council, 12 October 2021, p 6.
33 Attorney General, letter, 2 September 2024, p 1 (see Appendix 1).
15
(1) Regulations made for the purposes of this section (the interview admissibility regulations) may specify requirements relating to the admission of recorded interviews under this Division, including, without limitation, the following —
(a) the class of persons who are qualified to conduct the interview that is recorded;
(b) the manner in which the interview must be conducted;
(c) the manner in which the interview must be recorded;
(d) the information that must be recorded;
(e) requirements relating to apparent level of understanding or cognitive functioning of the person being interviewed;
(f) the extent to which any specified requirements must be met.
6.68 Each of the clauses provides for regulations to set out ‘the extent to which any specified requirements must be met’. The Committee considered whether this provided an inappropriate breadth to the regulation making powers and would have an unacceptably broad Henry VIII effect. This was particularly notable given the subject matter of the Bill, which will implement legislation with significant impact upon the application of law in Western Australia, and the subject matter of clause 253 which is drawn from a clause within the Evidence Act 1906 (WA) directed towards ‘children and persons with mental impairment’.34
6.69 The Committee queried why the matters for regulation under clauses 241 and 253 should not be set out within the Act, whether there were any anticipated regulations, and why clause 253 appeared to be broader than the section within the Evidence Act 1906 (WA) from which it is drawn.
6.70 In relation to clause 241, the Attorney General stated:
It is intended that these regulations are technical rather than policy-based requirements.
…
If, for example, it became unnecessary for a certificate to accompany a recorded interview because of some update in technology, this is likely to require a timely update in order to prevent unnecessary use of resources, which is more easily facilitated in regulations, and that update would be unlikely to form the appropriate subject matter for an amending Act.35
6.71 In relation to clause 253, the Attorney General stated:
It is intended that the regulations continue to provide a framework, recognised across agencies, to ensure that certain requirements for admissibility are clear.
It intended that these regulations are technical rather than policy based requirements.
…
Clause 253 is broader than section 106HC to the extent that it will allow regulations to be made about the admission of recorded interviews with child
34 See Evidence Act 1906 (WA), s 106HC. 35 Attorney General, letter, 2 September 2024, pp 6-7 (see Appendix 1).
16
sexual offence complainants regardless of their age. This is a necessary consequence of the expansion of clause 252 to implement the Royal Commission recommendation…36
6.72 In relation to both clause 241 and 253, the Attorney General stated that the regulations would ‘resemble’ the current Evidence (Visual Recording of Interviews with Children and Persons with Mental Impairment) Regulations 2004 (WA).37 The Committee repeats its view from previous reports that where there is sufficient certainty as to the content of regulations, these can and should be provided within the primary legislation. The technical rather than policy based requirements stated by the Attorney General are however appropriate subject matter for regulations.
FINDING 3
Clauses 241 and 253 of the Evidence Bill 2024 erode the Western Australian Parliament’s sovereignty.
FINDING 4
Clauses 241 and 253 of the Evidence Bill 2024 are justified for regulating technical matters and requirements.
Clause 371 6.73 Subclause 371(1) states:
(1) The Governor may make regulations prescribing all matters that are required or permitted by this Act to be prescribed, or are necessary or convenient to be prescribed for giving effect to the purposes of —
(a) this Act; or
(b) the Courts and Tribunals (Electronic Processes Facilitation) Act 2013 Part 2 (as it applies to this Act).
6.74 Subclause 371(1) provides a broad and generalised regulation making power.
6.75 The Committee queried why this broad power was required, and whether there were any anticipated regulations to be made under this power.
6.76 In relation to the regulation making power itself, the Attorney General stated:
The Commonwealth Act regulations support a number of aspects of the Commonwealth Act, including the forms of certificates and notices, and the requirements for certain kinds of affidavits. The power is required in the Bill for similar reasons.
The Bill covers far more of the law of evidence than the current Act and may require a number of regulations to support its procedural and technical elements such as notices and certificates. Such matters do not relate to any substantive changes to the laws of evidence contained within the Act.38
6.77 The Attorney General further stated that the anticipated regulations are:39+
36 Attorney General, letter, 2 September 2024, pp 9-11 (see Appendix 1). 37 Attorney General, letter, 2 September 2024, pp 7 and 9 (see Appendix 1). 38 Attorney General, letter, 2 September 2024, pp 12-13 (see Appendix 1). 39 Attorney General, letter, 2 September 2024, p 15 (see Appendix 1).
17
• Similar to the current Evidence (Video and Audio Links Fees and Expenses) Regulations 1999 (WA), and regulation 7(4) of the current Evidence (Visual Recording of Interviews with Children and Persons with a Mental Impairment) Regulations 2004.
• To support the protected recording provisions within Part 7 Division 9 of the Bill.40
6.78 The Attorney General anticipates necessary regulations will be drafted during the implementation period, and will commence at the same time as the provisions of the Act.41
6.79 The broad regulation making power of subclause 371(1) is a delegation of Parliament’s legislation making power and is an erosion of sovereignty.
FINDING 5
Subclause 371(1) erodes Parliamentary sovereignty by delegating Parliament’s legislation making power.
6.80 The regulation making power provided by subclause 371(1) is however restricted to what is ‘necessary or convenient’ so that the Act (Courts and Tribunals (Electronic Processes Facilitation) Act 2013 Part 2 as it applies to the Act) can operate as intended. Although broad, this is still a specific scope which limits the authority provided by the Bill.
FINDING 6
Subclause 371(1) is justified to support the procedural and technical elements of the Act.
Review 6.81 Clause 372 states:
(1) The Minister must review the operation and effectiveness of this Act, and prepare a report based on the review, as soon as practicable after the 5th anniversary of the day on which this section comes into operation.
(2) The Minister must cause the report to be laid before each House of Parliament as soon as practicable after it is prepared, but not later than 12 months after the 5th anniversary.42
6.82 Subclause 372(1) ties the timing of this review to the commencement of the review clause itself.
6.83 As set out above at paragraph 6.61, subclause 2(a) of the Bill provides for most of the Act to come into operation on a day fixed by proclamation. Different days may be set for different provisions. Subclause 372(1) could therefore commence much earlier or later than the rest of the Act, or could be prevented from coming into operation at all if its commencement was never fixed by proclamation.
6.84 The Committee has previously commented on the importance of review clauses within uniform legislation.43 Review clauses are an important mechanism for Parliamentary accountability and oversight of legislation.
40 Access to and use of protected recordings. 41 Attorney General, letter, 2 September 2024, p 15 (see Appendix 1). 42 Evidence Bill 2024, cl 371(1). 43 Recent consideration by the Committee is contained within its 143rd and 144th reports.
18
6.85 The Committee asked the Attorney General to explain why the review clause was linked to its own commencement, rather than to the commencement of some other central part or provision of the Act.
6.86 The Attorney General stated:
As mentioned at question 1, it is expected that all the provisions (other than Part 1) will commence simultaneously.
There is no single Part of the evidence law that could be regarded as central; the Act contains 12 Parts which are intended to operate as a cohesive whole.
If the review clause was linked to clause 2 (the commencement clause) then a review would be required earlier than the 5th anniversary of the commencement of the substantive provisions. This is considered too short a period to properly test whether the new Act is operating effectively given the length of most court proceedings.44
6.87 The Attorney General expects that all provisions of the Act, save for Part 1, will commence simultaneously. If this is the case, then the review clause can be linked to the commencement of any of the substantive provisions. This would provide sufficient certainty regarding the commencement of the review clause itself.
FINDING 7
Subclause 372(1), when read with subclause 2(b), does not provide sufficient certainty.
RECOMMENDATION 4
Subclause 372(1) of the Evidence Bill 2024 be amended to link the timing of review of the Act to the day on which the substantive provisions of the Act come into operation.
6.88 The Committee considers the Attorney General is best placed to explain to the Legislative Council which of the substantive provisions are most appropriate for linking the review clause.
Transitional regulations 6.89 Clause 399 provides for regulations to prescribe transitional matters. It states:
(1) In this section —
specified means specified or described in the regulations;
transitional matter —
(a) means a matter or issue of a transitional nature that arises as a result of —
(i) the repeal of the former Act; or
(ii) an amendment made under Part 12; or
(iii) the enactment of this Act;
and
(b) includes a savings or application matter or issue.
44 Attorney General, letter, 2 September 2024, p 16 (see Appendix 1).
19
(2) If there is not sufficient provision in this Division for dealing with a transitional matter, regulations may prescribe anything required, necessary or convenient to be prescribed in relation to the matter.
(3) Without limiting subsection (2), regulations made for the purposes of that subsection may provide that specified provisions of this Act —
(a) do not apply to, or in relation to, a specified matter or thing; or
(b) apply with specified modifications to, or in relation to, a specified matter or thing.45
6.90 The Committee queried what transitional matter, if any, this clause facilitates, why this should occur by regulation rather than amendment Act, and why the power does not have a limited timeframe.
6.91 The Attorney General stated:
It is not currently anticipated that there will be a transitional matter that is not covered by the transitional provisions of the Act.
There are a very large number of circumstances covered by the current Act which have significant bearing on matters which are vital to ongoing proceedings and the current Act will be repealed in its entirety. Part 11 Division 2 intends to cover the areas in which transitional provisions will be required. However, if there is a circumstance that has not been anticipated and therefore is not covered by a specific clause in Part 11 Division 2, it is possible that that unanticipated circumstance will have a bearing on an active proceeding which may be unable to proceed unless the matter is dealt with. It would be preferable for any such matters to be dealt with as expeditiously as possible, through a transitional regulation rather than amending the Act.
Although in most cases transitional matters are likely to arise within a short period of time following the commencement of an Act, there are a number of clauses in the Bill regulating the creation of items which will later be used as evidence. A transitional matter affecting an item of evidence may not be discovered until that evidence is scrutinised by a Court which may not occur until trial. It is not known how long after commencement such a process may occur, but it could be years afterwards.46
6.92 Clause 399 is a Henry VIII clause as it enables regulations to modify the operation of primary legislation. This includes authorising regulations which provide that specified provisions of the Act do not apply, or apply with specified modifications, to specified matters or things.
FINDING 8
Clause 399 of the Evidence Bill 2024 erodes the Western Australian Parliament’s sovereignty and law-making powers.
6.93 This Committee has previously recognised that a transitional regulation making power, despite having a Henry VIII effect:
is justifiable in order to effect a smooth transition to the new regulatory scheme and acceptable by reason of its focused operation.
45 Evidence Bill 2024, cl 399. 46 Attorney General, letter, 2 September 2024, pp 16-17 (see Appendix 1).
20
6.94 Although the regulation making power provided by clause 399 is not limited to a certain timeframe following the Act’s commencement, the scope of the regulations that may be made under this provision are limited to the ‘transitional matters’ set out by the Bill. The Committee considers that this scope is suitably specific to limit the use of the regulation making powers to those that are intended and appropriate.
FINDING 9
Clause 399 of the Evidence Bill 2024 is justifiable in order to effect a smooth transition to the Uniform Evidence Law, noting the use of these regulations is limited through the scope of transitional matters set out by the Bill.
Hon Donna Faragher MLC Chair
Appendix 1 Attorney General’s response to committee queries 21
APPENDIX 1
ATTORNEY GENERAL’S RESPONSE TO COMMITTEE QUERIES
22 Appendix 1 Attorney General’s response to committee queries
Appendix 1 Attorney General’s response to committee queries 23
24 Appendix 1 Attorney General’s response to committee queries
Appendix 1 Attorney General’s response to committee queries 25
26 Appendix 1 Attorney General’s response to committee queries
Appendix 1 Attorney General’s response to committee queries 27
28 Appendix 1 Attorney General’s response to committee queries
Appendix 1 Attorney General’s response to committee queries 29
30 Appendix 1 Attorney General’s response to committee queries
Appendix 1 Attorney General’s response to committee queries 31
32 Appendix 1 Attorney General’s response to committee queries
Appendix 1 Attorney General’s response to committee queries 33
34 Appendix 1 Attorney General’s response to committee queries
Appendix 1 Attorney General’s response to committee queries 35
36 Appendix 1 Attorney General’s response to committee queries
Appendix 1 Attorney General’s response to committee queries 37
38 Appendix 1 Attorney General’s response to committee queries
Appendix 2 Attorney General’s response to further committee query 39
APPENDIX 2
ATTORNEY GENERAL’S RESPONSE TO FURTHER COMMITTEE QUERY
40 Appendix 2 Attorney General’s response to further committee query
Appendix 2 Attorney General’s response to further committee query 41
42 Appendix 3 Attorney General’s response to further committee query
APPENDIX 3
CLERK’S LETTER OF ADVICE
Appendix 3 Attorney General’s response to further committee query 43
44 Appendix 3 Attorney General’s response to further committee query
Appendix 3 Attorney General’s response to further committee query 45
46 Appendix 4 Attorney General’s position regarding proposed amendments
APPENDIX 4
ATTORNEY GENERAL’S POSITION REGARDING PROPOSED AMENDMENTS
Appendix 4 Attorney General’s position regarding proposed amendments 47
48 Glossary
GLOSSARY
Term Definition
2011 bill Evidence and Public Interest Disclosure Legislation Amendment Bill 2011
ALRC Australian Law Reform Commission
Bill Evidence Bill 2024
Committee Standing Committee on Uniform Legislation and Statutes Review
EM Explanatory Memorandum
ALRC Australian Law Reform Commission
Standing Committee on Uniform Legislation and Statutes Review
Date first appointed:
17 August 2005
Terms of Reference:
The following is an extract from Schedule 1 of the Legislative Council Standing Orders:
'6. Uniform Legislation and Statutes Review Committee
6.1 A Uniform Legislation and Statutes Review Committee is established.
6.2 The Committee consists of 4 Members.
6.3 The functions of the Committee are –
(a) to consider and report on Bills referred under Standing Order 126;
(b) on reference from the Council, to consider or review the development and formulation of any proposal or agreement whose implementation would require the enactment of legislation made subject to Standing Order 126;
(c) to review the form and content of the statute book; and
(d) to consider and report on any matter referred by the Council.
6.4 In relation to function 6.3(a) and (b), the Committee is to confine any inquiry and report to an investigation as to whether a Bill or proposal may impact upon the sovereignty and law-making powers of the Parliament of Western Australia.'
Parliament House, 4 Harvest Terrace, West Perth WA 6005 Telephone: +61 8 9222 7300 Email: lcco@parliament.wa.gov.au Website: http://www.parliament.wa.gov.au
- Workers Compensation and Injury Management Amendment (Common Law Election Validation) Bill 2024 - (Message No. 161 from the Legislative Council, dated 23 Oct 2024)
- Retirement Villages Amendment Bill 2024 - LC SNP (SNP NO. 177, Issue 2)
- Keystart Bill 2024 - Click here for Second Reading speech presented in the Legislative Assembly (p. 4846b)
- Family Court Amendment (Commonwealth Reforms) Bill 2024 - Click here for Second Reading speech presented in the Legislative Assembly (p. 4847b)
- Family Court Amendment (Commonwealth Reforms) Bill 2024 - Bill as passed by originating House