EVIDENCE (IDENTIFICATION) AMENDMENT BILL

Committee Stage

In committee.

Clauses 1 to 3 passed.

Clause 4.

The Hon. S.G. WADE: I move:

Amendment No 1 [Wade–2]—

Page 2, line 12 to page 3 line 9 [clause 4, inserted section 34AB]—

Delete inserted section 34AB and substitute:

34AB—Identity parade evidence

(1) In a criminal trial, evidence of the identity of an offender is not to be excluded merely because it was obtained other than by means of an identity parade involving a presentation of a line-up of persons.

(2) In a criminal trial, evidence of the identity of an offender obtained by means of an identity parade is to be excluded unless—

(a) —

(i) the identity parade was conducted in accordance with—

(A) the procedures prescribed by the regulations; and

(B) any orders or directions of the Commissioner of Police; and

(ii) an audiovisual record of the identity parade was made and kept in accordance with the regulations; or

(b) the judge is satisfied that, despite the failure to comply with any of the requirements of paragraph (a), the interests of justice require the admission of the evidence.

(3) In a criminal trial where the identity of the offender is in issue, the judge must, if evidence of the identity of the offender is admitted, inform the jury—

(a) of the need for caution before accepting identification evidence; and

(b) of the reasons for the need for caution, both generally and in the circumstances of the case.

(4) In giving any such information, the judge is not required to use any particular form of words but may not suggest that identification evidence obtained from an identity parade by any means other than by a presentation of a line-up of persons is inherently or intrinsically less reliable than evidence obtained from an identity parade by such means.

(5) In this section—

identity parade means a contemporaneous presentation (whether in person in a line-up or by means of images) of a number of persons to a witness for the purpose of identifying a person suspected of having committed an offence.

I indicate to members that I appreciate that it is very unusual for us to table such a substantial amendment on the day of further consideration in this house. To explain the context in which I suggest that it should be supported today, I am certainly not expecting the government to have fully considered all the implications of this amendment today.

If the government could take me at my word, that it is a significant to try to address the concerns the government had with our previous bill and amendments, we would encourage the government and other members of the council to support passage today on the understanding that, between the houses (we have a two-week break) the Attorney-General and his advisers can more fully explore the particular wording of the amendment.

I am greatly encouraged by the fact that a bill that was tabled by the Attorney-General in another place today has a number of, shall we say, consensual elements. I am extremely optimistic that an agreed set of amendments could be progressed, and in that context, because the Attorney has tabled the bill in the other place, the government actually has the option of either progressing the government bill and taking the best of the opposition amendments as government amendments in the other place or, alternatively, progressing this bill and proposing to amend it as it sees fit.

I strongly urge the government to see the benefits of the second option—in other words, to work with the Legislative Council bill—because, subject to the will of this council tonight, it will already have been through one chamber. Considering the limitations of sitting days between now and the end of the year, it would expedite consideration.

With those few words, I might pause at this point. If members would like a more thorough consideration of the merits of the amendment, then I am happy to go through those. If members would like to have a considered government response by way of a response out of the House of Assembly, I would suggest that that might be a more expeditious way to proceed.

The Hon. K.J. MAHER: I would like to thank the Hon. Stephen Wade. I think he is right concerning the long history of this. There were a couple of bills introduced by the government and also competing bills by the Hon. Mr Wade, and they are coming closer together and are not too far from resolution. I indicate that the government will not be supporting the bill in the Legislative Council but will be preferring a bill that I think was introduced today in another place. Without speaking to the Hon. Kelly Vincent's amendments, I do note that a number of members have been very helpful in this debate to try to get this resolved, and we have come closer.

I do not think we necessarily need an answer to it now, but there is a question to be asked in relation to the Hon. Stephen Wade's amendment. Section 34AB(2)(a)(i) provides:

Identity parade was conducted in accordance with—

(A) the procedures prescribed by the regulations; and

(B) any orders or directions of the Commissioner of Police...

I am wondering if there are other legislative incidences where the Commissioner of Police's directions are given legislative force? If there is a possibility where procedures prescribed by regulations and directions of the Commissioner of Police might be in conflict, how would that be resolved?

The Hon. S.G. WADE: On the first point, my understanding is that directions of the Commissioner of Police are given legislative force in the legislation in relation to high-speed chases. The way that an officer is dealt with in whether or not they are complying with the directions of their superior officers is directly relevant to how they are treated by that legislation. The second point was—

The Hon. K.J. Maher: Could there be any conflict?

The Hon. S.G. WADE: To be frank, the same executive that writes the regulations is the same executive that writes the orders or directions. It was certainly the opposition's intention in phrasing the words in that level that we could have flexibility at the operational level. An example that I made in the debate was the emerging technology in Britain using video technology to provide representations of a suspect's appearance. It may well be that the police general orders might incorporate that sort of technology without the need to change the regulations, without the need to come back to parliament.

However, let me stress that the only legislated standard that this amendment proposes is audiovisual. What we found, no matter whether it was a police officer, whether it was an academic, whether it was a lawyer, is that there was universal support. That is my recollection. I cannot recall anybody who thought that it was not good practice to provide an audiovisual record; so that is the only thing we are specifying in the legislation.

We certainly believe that there are other elements that should be considered for inclusion in the regulations. If you like, they are the sort of elements that we took out of the act specification. In other words, that is part of the accommodation. Right through this process the opposition has been consistent in not wanting to go to the commonwealth approach. In the commonwealth evidence legislation there is a high level of specificity. We do not want to constrain the police in an operational sense, but we want to support them to use the best technology in a way which maintains standards.

As I said, in terms of the complementarity, the executive drafts the regulations, the executive in the form of the Commissioner of Police drafts any orders or directions. I am very confident they will be consistent. If they are inconsistent, I presume that the legislation relating to police would say the regulations override, and I am sure the police commissioner would make a submission to the Attorney-General, the Minister for Police, to change the regulations pronto.

The Hon. K.L. VINCENT: I advise that I will not be proceeding with my amendment, and with the leave of the council I would like to make a few comments as to why. I suppose it is fair to say that our amendment was drafted as something of a compromise between the opposition position and the government position, particularly when it came to the issue of preferential treatment of evidence line-ups, as opposed to photo line-ups. We drafted those as a compromise, as I have said, and, I think, to start a conversation about this issue and how it could best be dealt with. I have reached a position now where I believe that, at this point, the opposition amendment does that the best.

This is not an issue where there is any particular opposition, any confrontation, therefore I see no use in having a debate as to whose amendment is best when there are only a few words of difference. There is a great deal of goodwill within the parliament to reform this part of the state's Evidence Act. Both of the major parties have presented bills to attempt to address the problem that virtually all members appear to agree exists. Having the opportunity today to discuss the Hon. Mr Wade's amendment to this bill and the government's new bill addressing the same issue, I am pleased to see both parties moving closer to a compromise that encompasses the key aspects with their own perspectives and the concerns expressed by myself on behalf of Dignity for Disability and others on the crossbench.

Having gone through both proposals as thoroughly as time permitted, which was not very long, I note that both are substantially (more or less) identical, with only four major points of difference between the two. The first appears to be a fairly minor question of phrasing. The Hon. Mr Wade expands the phrase 'identity parade' to encompass photo boards and other identification procedures, while the government prefers the phrase 'identification processes'. I do not feel that there is a significant difference between the two. The way the phrases are used makes them virtually interchangeable, in my view.

The first point of real interest is the mention in this bill of regulations and orders or directions of the commissioner. These are absent in the government bill and it is my understanding that this reflects a concern about elevating the commissioner's orders and directions to the same level as regulations, as they are not subject to the same level of oversight by the parliament. This is an interesting point and one that I feel warrants further discussion.

The next point of difference is a subtle one but I think, in its own way, significant. Both bills contain virtually identical section 4s. The Hon. Mr Wade's amendment, however, contains a slight variation, a reference to a lack of any inherent or intrinsic difference in reliability between identity parades and other methods of obtaining identification evidence. While I have had little time to consider this point, I feel that this wording prevents the courts from giving a warning that would unduly emphasise identity parade evidence while allowing judges to comment upon the conduct of a particular identification process.

The final point, and I think perhaps the most important for me personally, is that the Hon. Mr Wade's bill contains reporting provisions that will address some of my own concerns surrounding the impact of the new provisions upon people with disabilities and people from culturally and linguistically diverse backgrounds in particular. Given the substantial goodwill that exists around this issue, and the progress that has been made toward a compromise thus far, I do not feel that it is hugely important whether one bill or the other receives the support of the council. What is important here is that we do not squander the effort that has gone into working toward a compromise. The Hon. Mr Wade's amendments, I believe, do represent substantial progress and I am pleased to see that they include some of the concerns that have been expressed, both by the government and myself.

I had prepared some amendments of my own, of course, in an effort to find a middle ground between the positions of the government and the opposition and ensure that my own concerns were represented. I feel that the spirit of those amendments is largely encapsulated by Mr Wade's amendments and as such I will not proceed with those amendments that I had prepared. To summarise on behalf of Dignity for Disability, we will be supporting Mr Wade's bill at this point, and we hope that its passage through the council will allow the work towards a compromise to continue in the House of Assembly. We support Mr Wade's bill at this point, but reserve the right to support a government version if down the track we consider that to be preferable.

The CHAIR: The Hon. Mr Wade, it seems as though we are in robust agreement. Do you have something new to add?

The Hon. S.G. WADE: Very briefly, I was remiss in not acknowledging the role that the Hon. Kelly Vincent's amendment had in the evolution of the opposition amendments, and I wanted to put that on the record. It is not the first time. The Hon. Kelly Vincent was instrumental in achieving an agreement on the ICAC bill at the end of last year also.

Amendment carried; clause as amended passed.

New clause 5.

The Hon. S.G. WADE: I move:

Amendment No 2 [Wade–2]—

New clause—After clause 4 insert:

5—Substitution of Schedule 1

Schedule 1—delete the schedule and substitute:

Schedule 1—Review of identity parade evidence

1—Inquiry into and report on operation of section 34AB

(1) The Minister must, within 12 months after the commencement of this clause, appoint a person—

(a) to review the operation of section 34AB of this Act as inserted by the Evidence (Identification) Amendment Act 2013; and

(b) report on the extent to which the operation of that section, and the regulations and any orders or directions of the Commissioner of Police made pursuant to that section—

(i) facilitate the gathering of quality identification evidence; and

(ii) reflect scientific best practice; and

(iii) protect the rights of people with disability or cultural and linguistic diversity.

(2) A report on the review must be provided to the Minister within 3 months after the commencement of the review.

(3) The Minister must, within 12 sitting days after receipt of the report under this clause, cause a copy of the report to be laid before each House of Parliament.

This amendment is consequential.

New clause inserted.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. S.G. WADE (17:52): I move:

That this bill be now read a third time.

Bill read a third time and passed.