Evidence Bill 2025
Part 4 Privileges
Division 6 Evidence excluded in the public interest
s. 194
page 154
third party, in connection with an attempt to negotiate a1
settlement of the dispute; or2
(b) a document (whether delivered or not) that has been3
prepared in connection with an attempt to negotiate a4
settlement of a dispute.5
(3) Subsection (2) does not apply if —6
(a) the persons in dispute consent to the evidence being7
adduced in the proceeding concerned or, if any of those8
persons has tendered the communication or document in9
evidence in another Australian or overseas proceeding,10
all the other persons consent; or11
(b) the substance of the evidence has been disclosed with12
the express or implied consent of all the persons in13
dispute; or14
(c) the substance of the evidence has been partly disclosed15
with the express or implied consent of the persons in16
dispute, and full disclosure of the evidence is reasonably17
necessary to enable a proper understanding of the other18
evidence that has already been adduced; or19
(d) the communication or document included a statement to20
the effect that it was not to be treated as confidential; or21
(e) the evidence tends to contradict or to qualify evidence22
that has already been admitted about the course of an23
attempt to settle the dispute; or24
(f) the proceeding in which it is sought to adduce the25
evidence is a proceeding to enforce an agreement26
between the persons in dispute to settle the dispute, or a27
proceeding in which the making of the agreement is in28
issue; or29
(g) evidence that has been adduced in the proceeding, or an30
inference from evidence that has been adduced in the31
proceeding, is likely to mislead the court unless32
evidence of the communication or document is adduced33
to contradict or to qualify that evidence; or34
Evidence Bill 2025
Privileges Part 4
Evidence excluded in the public interest Division 6
s. 194
page 155
(h) the communication or document is relevant to1
determining liability for costs; or2
(i) making the communication, or preparing the document,3
affects a right of a person; or4
(j) the communication was made, or the document was5
prepared, in furtherance of the commission of a fraud or6
an offence or the commission of an act that renders a7
person liable to a civil penalty; or8
(k) a person in dispute, or an employee or agent of a person9
in dispute, knew or ought reasonably to have known that10
the communication was made, or the document was11
prepared, in furtherance of a deliberate abuse of a12
power.13
(4) If the commission of a fraud, offence or act referred to in14
subsection (3)(j) is a fact in issue, a court may find that a15
communication was made or a document was prepared in16
furtherance of the commission of a fraud, offence or act if there17
are reasonable grounds for finding that —18
(a) the fraud, offence or act was committed; and19
(b) the communication was made or document was prepared20
in furtherance of the commission of the fraud, offence or21
act.22
(5) If an abuse of power referred to in subsection (3)(k) is a fact in23
issue, the court may find that a communication was made or a24
document was prepared in furtherance of an abuse of power25
if there are reasonable grounds for that finding.26
(6) This section does not apply to a communication made, or a27
document prepared, in connection with an attempt to negotiate28
the settlement of a criminal proceeding or an anticipated29
criminal proceeding.30
(7) For the purposes of this section —31
(a) a communication made by an employee or agent of a32
person is taken to have been made by the person; and33
Evidence Bill 2025
Part 4 Privileges
Division 7 General
s. 195
page 156
(b) a consent given by an employee or agent of a person is1
taken to have been given by the person if the employee2
or agent is authorised to consent.3
(8) A reference in this section to doing an act includes a reference4
to failing to do that act.5
Compare:6
Evidence Act 1995 (Commonwealth) s. 1317
Division 7 — General8
195. Court to inform of rights to make applications and9
objections10
If it appears to the court that a witness or a party may have11
grounds for making an application or objection under a12
provision of this Part, the court must satisfy itself (if there is a13
jury, in the absence of the jury) that the witness or party is14
aware of the effect of that provision.15
Compare:16
Evidence Act 1995 (Commonwealth) s. 13217
196. Court may inspect documents18
If a question arises under this Part in relation to a document, the19
court may order that the document be produced to it and may20
inspect the document for the purpose of determining the21
question.22
Compare:23
Evidence Act 1995 (Commonwealth) s. 13324
197. Inadmissibility of evidence that must not be adduced or25
given26
Evidence that, because of this Part, must not be adduced or27
given in a proceeding is not admissible in the proceeding.28
Compare:29
Evidence Act 1995 (Commonwealth) s. 13430
Evidence Bill 2025
Privileges Part 4
General Division 7
s. 198
page 157
198. Derogation of privilege in civil proceedings1
(1) Rules of court relating to the use of expert evidence in a civil2
proceeding may provide for the derogation of any privilege3
under this Act that would otherwise attach to documents4
prepared —5
(a) for the purpose of pending or contemplated proceedings;6
or7
(b) in connection with the obtaining or giving of legal8
advice.9
(2) A privilege under this Act does not apply to the extent provided10
for by rules of court referred to in subsection (1).11
(3) Without limiting the generality of subsection (1) or any other12
power to make rules of court, rules of court relating to the use of13
expert evidence in a civil proceeding may make provision for —14
(a) the disclosure, by providing copies of reports or15
otherwise, of the nature and substance of expert16
evidence to be given in a civil proceeding; and17
(b) the exclusion of expert evidence because of18
non-compliance with the rules of court relating to19
disclosure of expert evidence or non-compliance with20
any order for the disclosure of the nature and substance21
of expert evidence; and22
(c) the conferral of a discretion on the court, tribunal or23
other person or body dealing with the proceeding in24
relation to the matters referred to in paragraphs (a)25
and (b).26
(4) This section extends to the following proceedings —27
(a) an arbitration;28
(b) a civil proceeding before a WA tribunal.29
Compare:30
Evidence Act 1906 s. 32A31
Evidence Bill 2025
Part 4 Privileges
Division 7 General
s. 199
page 158
199. No privilege against self-incrimination for bodies corporate1
(1) This section applies if, under a law of the State or in a2
proceeding to which this Act applies, a body corporate is3
required to —4
(a) answer a question or give information; or5
(b) produce a document or any other thing; or6
(c) do any other act whatever.7
(2) The body corporate is not entitled to refuse or fail to comply8
with the requirement on the ground that answering the question,9
giving the information, producing the document or other thing10
or doing that other act, as the case may be, might tend to11
incriminate the body or make the body liable to a penalty.12
Compare:13
Evidence Act 1995 (Commonwealth) s. 18714
200. No confessional privilege in proceedings relating to child15
sexual offences or sexual abuse16
(1) In this section —17
religious confession means a confession made by a person to a18
minister of religion acting in the minister’s capacity as a19
minister of religion and in accordance with the tenets of the20
minister’s faith or religion.21
(2) A person is not entitled to refuse or fail to give evidence on the22
ground that giving the evidence would require the person to23
disclose that a religious confession was made to the person, the24
contents of a religious confession or information gained in25
connection with a religious confession in the following26
proceedings —27
(a) a criminal proceeding for a sexual offence if the28
complainant was a child at the time of the offence;29
(b) a civil proceeding in which it is alleged a person is the30
victim of sexual abuse if the person was a child at the31
time of the sexual abuse.32
Evidence Bill 2025
Privileges Part 4
General Division 7
s. 200
page 159
(3) This section does not affect the operation of any privilege1
conferred by this Part.2
Evidence Bill 2025
Part 5 Exclusion of evidence
s. 201
page 160
Part 5 — Exclusion of evidence1
201. General discretion to exclude evidence2
A court may refuse to admit evidence if its probative value is3
substantially outweighed by the danger that the evidence4
might —5
(a) be unfairly prejudicial to a party; or6
(b) be misleading or confusing; or7
(c) cause or result in undue waste of time.8
Compare:9
Evidence Act 1995 (Commonwealth) s. 13510
202. General discretion to limit use of evidence11
A court may limit the use to be made of evidence if there is a12
danger that a particular use of the evidence might —13
(a) be unfairly prejudicial to a party; or14
(b) be misleading or confusing.15
Compare:16
Evidence Act 1995 (Commonwealth) s. 13617
203. Exclusion of prejudicial evidence in criminal proceeding18
In a criminal proceeding, the court must refuse to admit19
evidence adduced by the prosecutor if its probative value is20
outweighed by the danger of unfair prejudice to the accused.21
Compare:22
Evidence Act 1995 (Commonwealth) s. 13723
204. Exclusion of improperly or illegally obtained evidence24
(1) The following evidence must not be admitted unless the25
desirability of admitting the evidence outweighs the26
Evidence Bill 2025
Exclusion of evidence Part 5
s. 204
page 161
undesirability of admitting evidence that has been obtained in1
the way in which the evidence was obtained —2
(a) evidence obtained improperly or in contravention of an3
Australian law;4
(b) evidence obtained in consequence of an impropriety or5
of a contravention of an Australian law.6
(2) Without limiting subsection (1), evidence of an admission that7
was made during or in consequence of questioning, and8
evidence obtained in consequence of the admission, are taken to9
have been obtained improperly if the person conducting the10
questioning —11
(a) did, or omitted to do, an act in the course of the12
questioning even though the person knew or ought13
reasonably to have known that the act or omission was14
likely to impair substantially the ability of the person15
being questioned to respond rationally to the16
questioning; or17
(b) made a false statement in the course of the questioning18
even though the person knew or ought reasonably to19
have known that the statement was false and that20
making the false statement was likely to cause the21
person who was being questioned to make an admission.22
(3) Without limiting the matters that the court may take into23
account under subsection (1), it must take into account the24
following —25
(a) the probative value of the evidence;26
(b) the importance of the evidence in the proceeding;27
(c) the nature of the relevant offence, cause of action or28
defence and the nature of the subject matter of the29
proceeding;30
(d) the gravity of the impropriety or contravention;31
(e) whether the impropriety or contravention was deliberate32
or careless;33
Evidence Bill 2025
Part 5 Exclusion of evidence
s. 205
page 162
(f) whether the impropriety or contravention was contrary1
to or inconsistent with a right of a person recognised by2
the International Covenant on Civil and Political Rights;3
(g) whether any other proceeding (whether or not in a court)4
has been or is likely to be taken in relation to the5
impropriety or contravention;6
(h) the difficulty (if any) of obtaining the evidence without7
impropriety or contravention of an Australian law.8
Compare:9
Evidence Act 1995 (Commonwealth) s. 13810
205. Cautioning of persons11
(1) For the purposes of section 204(1)(a), evidence of a statement12
made or an act done by a person during questioning is taken to13
have been obtained improperly if —14
(a) the person was under arrest for an offence at the time;15
and16
(b) the questioning was conducted by an investigating17
official who was at the time empowered, because of the18
office that the official held, to arrest the person; and19
(c) before starting the questioning the investigating official20
did not caution the person that the person does not have21
to say or do anything but that anything the person does22
say or do may be used in evidence.23
(2) For the purposes of section 204(1)(a), evidence of a statement24
made or an act done by a person during questioning is taken to25
have been obtained improperly if —26
(a) the questioning was conducted by an investigating27
official who did not have the power to arrest the person;28
and29
(b) the statement was made, or the act was done, after the30
investigating official formed a belief that there was31
Evidence Bill 2025
Exclusion of evidence Part 5
s. 205
page 163
sufficient evidence to establish that the person has1
committed an offence; and2
(c) the investigating official did not, before the statement3
was made or the act was done, caution the person that4
the person does not have to say or do anything but that5
anything the person does say or do may be used in6
evidence.7
(3) The caution must be given in, or translated into, a language in8
which the person is able to communicate with reasonable9
fluency, but need not be given in writing unless the person10
cannot hear adequately.11
(4) Subsections (1), (2) and (3) do not apply so far as any12
Australian law requires the person to answer questions put by,13
or do things required by, the investigating official.14
(5) A reference in subsection (1) to a person who is under arrest15
includes a reference to a person who is in the company of an16
investigating official for the purpose of being questioned, if —17
(a) the official believes that there is sufficient evidence to18
establish that the person has committed an offence that19
is to be the subject of the questioning; or20
(b) the official would not allow the person to leave if the21
person wished to do so; or22
(c) the official has given the person reasonable grounds for23
believing that the person would not be allowed to leave24
if the person wished to do so.25
(6) A person is not treated as being under arrest only because of26
subsection (5) if —27
(a) the official is performing functions in relation to persons28
or goods entering or leaving Australia and the official29
does not believe the person has committed an offence30
against a law of the Commonwealth; or31
Evidence Bill 2025
Part 5 Exclusion of evidence
s. 206
page 164
(b) the official is exercising a power under an Australian1
law to detain and search the person or to require the2
person to provide information or to answer questions.3
Compare:4
Evidence Act 1995 (Commonwealth) s. 1395
206. Exclusion of certain evidence relating to complainant or6
witness7
(1) The following evidence must not be adduced by or on behalf of8
an accused in a criminal proceeding for a sexual offence —9
(a) evidence relating to the sexual reputation of the10
complainant;11
(b) evidence relating to the disposition of the complainant in12
sexual matters.13
(2) In a criminal proceeding for a sexual offence, evidence relating14
to the sexual experiences of the complainant, of any kind, at any15
time and with any person, other than the acts or omissions that16
constitute the offence, must not be adduced by or on behalf of17
an accused except with the leave of the court.18
(3) The following evidence must not be adduced in a civil19
proceeding in which it is alleged that a witness is the victim of20
sexual abuse or sexual harassment —21
(a) evidence relating to the sexual reputation of the witness;22
(b) evidence relating to the disposition of the witness in23
sexual matters.24
(4) In a civil proceeding in which it is alleged that a witness is the25
victim of sexual abuse or sexual harassment, evidence relating26
to the sexual experiences of the witness, of any kind, at any time27
and with any person, other than the acts or omissions that are28
the subject of the alleged sexual abuse or sexual harassment,29
must not be adduced except with the leave of the court.30
Evidence Bill 2025
Exclusion of evidence Part 5
s. 206
page 165
(5) An application for leave of the court mentioned in1
subsection (2) or (4) must be heard in the absence of the jury (if2
any).3
(6) The court must not grant leave under subsection (2) or (4)4
unless satisfied that —5
(a) the evidence has substantial probative value; and6
(b) the probative value of the evidence outweighs any7
distress, humiliation or embarrassment that may be8
caused to the complainant or witness as a result of the9
admission of the evidence.10
(7) This section does not affect the operation of section 50.11
(8) Evidence that, because of this section, must not be adduced or12
given in a proceeding is not admissible in the proceeding.13
Compare:14
Evidence Act 1906 s. 36A, 36B, 36BA and 36BC15