Evidence Bill 2025
Preliminary Part 1
Interpretation Division 2
s. 7
page 17
(d) is being kept by or on behalf of the Commonwealth, a1
State or a Territory, a government of a foreign country2
or a person or body referred to in paragraph (c).3
(4) A public document includes the records of the proceedings of,4
and papers presented to —5
(a) an Australian Parliament, a House of an Australian6
Parliament, a committee of a House of an Australian7
Parliament or a committee of an Australian Parliament;8
and9
(b) a legislature of a foreign country, including a House or10
committee (however described) of a legislature of a11
foreign country.12
Compare:13
Evidence Act 1995 (Commonwealth) Dictionary Part 1 and Part 2 cl. 814
7. Representations made in documents15
For the purposes of this Act, a representation contained in a16
document is taken to have been made by a person if —17
(a) the document was written, made or otherwise produced18
by the person; or19
(b) the representation was recognised or acknowledged by20
the person as the person’s representation by signing,21
initialling or otherwise marking the document.22
Compare:23
Evidence Act 1995 (Commonwealth) Dictionary Part 2 cl. 624
8. References to availability of documents and things25
For the purposes of this Act, a document or thing is taken not to26
be available to a party if and only if —27
(a) it cannot be found after reasonable inquiry and search by28
the party; or29
Evidence Bill 2025
Part 1 Preliminary
Division 2 Interpretation
s. 9
page 18
(b) it was destroyed by the party, or by a person on behalf1
of the party, otherwise than in bad faith, or was2
destroyed by another person; or3
(c) it would be impractical to produce the document or4
thing during the course of the proceeding; or5
(d) production of the document or thing during the course of6
the proceeding could render a person liable to conviction7
for an offence; or8
(e) it is not in the possession or under the control of the9
party and —10
(i) it cannot be obtained by any judicial procedure11
of the court; or12
(ii) it is in the possession or under the control of13
another party to the proceeding concerned who14
knows or might reasonably be expected to know15
that evidence of the contents of the document, or16
evidence of the thing, is likely to be relevant in17
the proceeding; or18
(iii) it was in the possession or under the control of19
another party to the proceeding concerned at a20
time when that party knew or might reasonably21
be expected to have known that evidence of the22
contents of the document, or evidence of the23
thing, was likely to be relevant in the proceeding.24
Compare:25
Evidence Act 1995 (Commonwealth) Dictionary Part 2 cl. 526
9. References to availability to give evidence27
(1) For the purposes of this Act, a person is taken not to be28
available to give evidence about a fact if —29
(a) the person is dead; or30
(b) the person is, for any reason other than the application31
of section 26, not competent to give the evidence; or32
Evidence Bill 2025
Preliminary Part 1
Interpretation Division 2
s. 10
page 19
(c) the person is mentally or physically unable to give the1
evidence and it is not reasonably practicable to2
overcome that inability; or3
(d) the person objects to giving the evidence under4
section 28 and that objection is upheld; or5
(e) it would be unlawful for the person to give the evidence;6
or7
(f) a provision of this Act prohibits the evidence being8
given; or9
(g) all reasonable steps have been taken, by the party10
seeking to prove the person is not available, to find the11
person or secure the person’s attendance, without12
success; or13
(h) all reasonable steps have been taken, by the party14
seeking to prove the person is not available, to compel15
the person to give the evidence, without success.16
(2) In all other cases, the person is taken to be available to give17
evidence about the fact.18
(3) In deciding whether a person is not available to give evidence19
under subsection (1)(b) or (c), a court may inform itself as it20
thinks fit.21
Compare:22
Evidence Act 1995 (Commonwealth) Dictionary Part 2 cl. 423
10. References to laws24
(1) A reference in this Act to a law of the State is a reference to a25
written law or an unwritten law of, or in force in, the State.26
(2) A reference in this Act to a law of the Commonwealth, another27
State, a Territory or a foreign country is a reference to a law28
(whether in the nature of a written law or an unwritten law) of,29
or in force in, that place.30
Evidence Bill 2025
Part 1 Preliminary
Division 2 Interpretation
s. 11
page 20
(3) A reference in this Act to an Australian law is a reference to an1
Australian law (whether in the nature of a written law or an2
unwritten law) of, or in force in, Australia.3
Compare:4
Evidence Act 1995 (Commonwealth) Dictionary Part 2 cl. 95
11. References to criminal proceedings6
(1) A reference in this Act to a criminal proceeding for a particular7
offence is a reference to a criminal proceeding in which a8
person stands charged with that offence —9
(a) whether or not the person is charged with that offence10
alone or together with another offence (as an alternative11
or additional count); and12
(b) whether or not the person is liable on the charge to be13
found guilty of any other offence.14
(2) If a provision of this Act applies to a criminal proceeding for a15
particular offence it also applies to any related proceeding,16
unless the contrary intention appears.17
Compare:18
Evidence Act 1906 s. 36A and Schedule 7 Part A cl. 119
12. References to civil penalties20
For the purposes of this Act, a person is taken to be liable to a21
civil penalty if, in an Australian or overseas proceeding (other22
than a criminal proceeding), the person would be liable to a23
penalty arising under an Australian law or a law of a foreign24
country.25
Compare:26
Evidence Act 1995 (Commonwealth) Dictionary Part 2 cl. 327
13. References to offspring and parents28
(1) A person of any age is the offspring of another person if the29
other person is the person’s parent.30
Evidence Bill 2025
Preliminary Part 1
Application of Act Division 3
s. 14
page 21
(2) A parent, in relation to a child, includes a person who acts as a1
parent to the child and with whom the child lives as if the child2
were a member of the person’s family.3
Compare:4
Evidence Act 1995 (Commonwealth) Dictionary Part 2 cl. 105
Division 3 — Application of Act6
14. Application of Act7
This Act applies to all proceedings in a court.8
Compare:9
Evidence Act 1906 s. 410
Evidence Act 1995 (Commonwealth) s. 411
15. Extended application of certain provisions12
(1) A provision of this Act applies to a proceeding before a13
WA tribunal or a person acting judicially, whether or not the14
tribunal or person acting judicially is a court, if this Act15
expressly provides that the provision extends to a proceeding16
before a WA tribunal or a person acting judicially.17
(2) If a provision of this Act extends to a proceeding before a WA18
tribunal or a person acting judicially, a reference in the19
provision to a court includes a reference to a WA tribunal, or a20
person acting judicially, as the case requires.21
Examples for this section:22
Section 208, which permits evidence to be taken by video link or23
audio link, extends to a proceeding before a WA tribunal.24
Sections 328, 332 to 340 and 347, which facilitate proof of certain25
matters in proceedings, extend to a proceeding before a person26
acting judicially.27
Compare:28
Evidence Act 1995 (Commonwealth) s. 529
Evidence Bill 2025
Part 1 Preliminary
Division 3 Application of Act
s. 16
page 22
16. Electronic processes facilitation1
The Courts and Tribunals (Electronic Processes Facilitation)2
Act 2013 Part 2 applies to this Act.3
Compare:4
Evidence Act 1906 s. 5A5
17. Act binds Crown6
This Act binds the Crown in right of Western Australia and, so7
far as the legislative power of the Parliament permits, the Crown8
in all its other capacities.9
18. Operation of other Acts10
This Act does not affect the operation of the provisions of any11
other Act.12
Compare:13
Evidence Act 1995 (New South Wales) s. 814
19. Application of common law and equity15
(1) This Act does not affect the operation of a principle or rule of16
common law or equity in relation to evidence in a proceeding to17
which this Act applies, except so far as this Act provides18
otherwise expressly or by necessary implication.19
(2) Without limiting subsection (1), this Act does not affect the20
operation of a principle or rule of common law or equity so far21
as it relates to any of the following —22
(a) admission or use of evidence of reasons for a decision of23
a member of a jury, or of the deliberations of a member24
of a jury in relation to the decision, in a proceeding by25
way of appeal from a judgment, decree, order or26
sentence of a court;27
(b) bail;28
Evidence Bill 2025
Preliminary Part 1
Application of Act Division 3
s. 20
page 23
(c) any requirement for admission of evidence in support of1
an alibi.2
Compare:3
Evidence Act 1995 (New South Wales) s. 94
Evidence Act 1995 (Commonwealth) s. 95
20. Parliamentary privilege preserved6
(1) This Act does not affect the law relating to the privileges of any7
Australian Parliament or any House of any Australian8
Parliament.9
(2) In particular, section 25(3) does not affect, and is in addition to,10
the law relating to those privileges.11
Compare:12
Evidence Act 1995 (Commonwealth) s. 1013
21. General powers of court14
(1) The power of a court to control the conduct of a proceeding is15
not affected by this Act, except so far as this Act provides16
otherwise expressly or by necessary implication.17
(2) In particular, the powers of a court with respect of abuse of18
process in a proceeding are not affected.19
Compare:20
Evidence Act 1995 (Commonwealth) s. 1121
Evidence Bill 2025
Part 2 Adducing evidence
Division 1 Witnesses
s. 22
page 24
Part 2 — Adducing evidence1
Division 1 — Witnesses2
Subdivision 1 — Competence and compellability of witnesses3
22. Competence and compellability4
Except as otherwise provided by this Act —5
(a) every person is competent to give evidence; and6
(b) a person who is competent to give evidence about a fact7
is compellable to give that evidence.8
Compare:9
Evidence Act 1995 (Commonwealth) s. 1210
23. Competence: lack of capacity11
(1) A person is not competent to give evidence about a fact if —12
(a) for any reason (including a disability), the person does13
not have capacity —14
(i) to understand a question about the fact; or15
(ii) to give an answer that can be understood to a16
question about the fact;17
and18
(b) that incapacity cannot be overcome.19
(2) A person who, because of subsection (1), is not competent to20
give evidence about a fact may be competent to give evidence21
about other facts.22
(3) A person who is competent to give evidence about a fact is not23
competent to give sworn evidence about the fact if the person24
does not have the capacity to understand that, in giving25
evidence, the person is under an obligation to give truthful26
evidence.27
Evidence Bill 2025
Adducing evidence Part 2
Witnesses Division 1
s. 24
page 25
(4) A person who is not competent to give sworn evidence about a1
fact may be competent to give unsworn evidence about the fact.2
(5) A person who, because of subsection (3), is not competent to3
give sworn evidence is competent to give unsworn evidence if4
the court has told the person —5
(a) that it is important to tell the truth; and6
(b) that the person may be asked questions that the person7
does not know, or cannot remember, the answer to, and8
that the person should tell the court if this occurs; and9
(c) that the person may be asked questions that suggest10
certain statements are true or untrue and that the person11
should agree with the statements that the person believes12
are true and should feel no pressure to agree with13
statements that the person believes are untrue.14
(6) It is presumed, unless the contrary is proved, that a person is not15
incompetent because of this section.16
(7) Evidence (either sworn or unsworn) that has been given by a17
witness does not become inadmissible merely because, before18
the witness finishes giving evidence, the witness dies or ceases19
to be competent to give the evidence.20
(8) For the purpose of determining a question arising under this21
section, the court may inform itself as it thinks fit, including by22
obtaining information from a person who has relevant23
specialised knowledge based on the person’s training, study or24
experience.25
Compare:26
Evidence Act 1995 (Commonwealth) s. 1327
24. Compellability: reduced capacity28
A person is not compellable to give evidence on a particular29
matter if the court is satisfied that —30
(a) substantial cost or delay would be incurred in ensuring31
that the person has the capacity to understand a question32
Evidence Bill 2025
Part 2 Adducing evidence
Division 1 Witnesses
s. 25
page 26
about the matter or to give an answer that can be1
understood to a question about the matter; and2
(b) adequate evidence on that matter has been given, or will3
be able to be given, from 1 or more other persons or4
sources.5
Compare:6
Evidence Act 1995 (Commonwealth) s. 147
25. Compellability: foreign sovereign and others8
(1) In this section —9
joint sitting means —10
(a) in relation to the Parliament of the Commonwealth — a11
joint sitting of the members of the Senate and of the12
House of Representatives convened by the13
Governor-General under the Commonwealth14
Constitution section 57 or convened under any Act of15
the Commonwealth; or16
(b) in relation to a bicameral legislature of a State — a joint17
sitting of both Houses of the legislature convened under18
a law of the State.19
(2) The following persons are not compellable to give evidence —20
(a) a foreign sovereign;21
(b) the Head of State of a foreign country.22
(3) A member of a House of an Australian Parliament is not23
compellable to give evidence if the member would, if compelled24
to give evidence, be prevented from attending —25
(a) a sitting of that House or a joint sitting of that26
Parliament; or27
Evidence Bill 2025
Adducing evidence Part 2
Witnesses Division 1
s. 26
page 27
(b) a meeting of a committee of that House or that1
Parliament, being a committee of which the person is a2
member.3
Compare:4
Evidence Act 1995 (Commonwealth) s. 155
26. Competence and compellability: judges and jurors6
(1) A person who is a judge or juror in a proceeding is not7
competent to give evidence in that proceeding.8
(2) However, a juror is competent to give evidence in the9
proceeding about matters affecting the conduct of the10
proceeding.11
(3) A person who is or was a judge in an Australian or overseas12
proceeding is not compellable to give evidence about that13
proceeding unless the court gives leave.14
Compare:15
Evidence Act 1995 (Commonwealth) s. 1616
27. Competence and compellability: accused and co-accused in17
criminal proceeding18
(1) An accused is not competent to give evidence as a witness for19
the prosecution in a criminal proceeding.20
(2) A co-accused is not compellable to give evidence for or against21
an accused in a criminal proceeding, unless the co-accused is22
being tried separately from the accused.23
(3) If a witness is a co-accused who is being tried jointly with the24
accused in a criminal proceeding, the court must satisfy itself (if25
there is a jury, in the jury’s absence) that the witness is aware of26
the effect of subsection (2).27
Compare:28
Evidence Act 1995 (Commonwealth) s. 1729
Evidence Bill 2025
Part 2 Adducing evidence
Division 1 Witnesses
s. 28
page 28
28. Compellability: spouses and others in criminal proceeding1
(1) In a criminal proceeding, a person who is the spouse, former2
spouse, de facto partner, former de facto partner, parent or3
offspring of an accused may object to being required —4
(a) to give evidence as a witness for the prosecution; or5
(b) to give evidence of a communication between the person6
and the accused as a witness for the prosecution.7
(2) The objection must be made before the person gives the8
evidence or as soon as practicable after the person becomes9
aware of the right to object, whichever is the later.10
(3) If it appears to the court that a person may have a right to make11
an objection under this section, the court must satisfy itself that12
the person is aware of the effect of this section as it may apply13
to the person.14
(4) If there is a jury, the court must hear and determine any15
objection under this section in the absence of the jury.16
(5) A person who makes an objection under this section to giving17
evidence or giving evidence of a communication must not be18
required to give the evidence if the court finds that —19
(a) there is a likelihood that harm would or might be caused20
(whether directly or indirectly) to the person, or to the21
relationship between the person and the accused, if the22
person gives the evidence; and23
(b) the nature and extent of that harm outweighs the24
desirability of having the evidence given.25
(6) Without limiting the matters that may be taken into account by26
the court for the purposes of subsection (5), it must take into27
account the following —28
(a) the nature and gravity of the offence for which the29
accused is being prosecuted;30