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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-03-05 Daily Xml
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EVIDENCE (IDENTIFICATION) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 21 February 2013.)

The Hon. D.G.E. HOOD (15:30): In order to debate the merits of this bill it is first necessary to consider briefly some matters of history that have affected it. It has been around for some time. I commence by mentioning a few matters concerning Family First's position on the issues that are raised by this bill, and there have been many.

In the debate in 2011 upon the government's earlier bill in the same terms as this one—that is, the exact same bill—I indicated at that time that Family First would support the bill. We did and we voted for it at the time. My view was then, and it remains now, that the law was in need of reform by legislation such as this and for that reason Family First chose to support the bill. Identification parades are no longer regarded as the most appropriate method of identification in criminal cases and the usage now is much less than it once was.

There are also practical difficulties with identification parades, and I think we have debated this bill and aspects of it long enough to understand what they are. The constraints of precedent have prevented the law from moving with the times at some level, so the intervention of parliament in my view in this particular case is necessary and appropriate.

There was a question raised in the debate back in 2011 on this bill as to whether the bill should have contained provisions to ensure quality in police identification procedures—that is, just not how it is done but how well it is done. The 2011 government bill failed to pass this chamber and it was mainly because of that issue. The chamber simply could not reach agreement on that range of issues.

My position on that was that the law needed updating; indeed, that is the position of our party. The question of whether quality in police procedures should be ensured by regulations or through court decisions was a debate where the result was much the same in either event, in my view. Put simply, the law needs updating. I emphasise that I am not saying the quality of identification procedures does not matter, of course it does, but what I am saying is that I have every confidence that the courts are in a position to ensure that the police maintain proper standards of quality in this regard. If police procedures are not of proper quality, I have no doubt that the courts will make this very plain to the police and will also ensure that no injustice is done. On the other hand, if there are standard procedures that can be set out in regulations, as is being proposed by amendments to the bill, then we would certainly be prepared to consider those amendments.

After the defeat of the original government bill back in 2011, the opposition introduced a private member's bill with the same title back in 2012. The effect of the terms is similar to the government bill but there are some important differences. The first, as I understand it, is that the opposition's bill is framed in terms of identification evidence not being admitted unless it complied with certain requirements, whereas the government bill provides that identification evidence is not to be excluded on certain grounds.

A second difference is in the part of the bill referring to admission or exclusion of the identification of evidence. The opposition's bill refers to all identification evidence whereas the government's bill refers only to identification parades not being necessary. The third difference is that the opposition's bill refers to procedures for the obtaining of identification evidence to be prescribed by regulation. The government bill makes no reference to this. The difference is perhaps more a matter of form than substance because the opposition bill, in the end, provides that even if the regulations—and I think this is appropriate—are not complied with, a judge may still admit the evidence if he considers that it still has sufficient probative value. I think that is an important point to note.

My conclusion is that both bills end up with a similar result, although they might choose slightly different paths to reach that position. I accept that the opposition is seeking an additional layer of protection to ensure that procedures are of appropriate quality, and I think this is something that is by and large appropriate. In my opinion, the government bill also achieves the assurance of quality through the monitoring by the courts. Indeed, under either bill, the courts have complete control of what evidence is admitted and what is rejected in the end. The final position is theirs and theirs alone.

That looks forward to another opposition bill which we will be discussing tomorrow. Coming back to the government bill, we supported this bill back in 2011 and we see that the bill is the same and, for that reason, Family First will be supporting it today.

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for the Status of Women, Minister for State/Local Government Relations) (15:35): I thank honourable members for their second reading contribution to this bill. I would like to take this opportunity to clarify the policy behind the bill. The government's policy is to remove the dated judicial preference for identification parades, or line-ups, over the other procedures for obtaining evidence of the identity of an accused. The bill is carefully constructed to do no more than achieve this policy. In particular, the bill is carefully constructed so that the court and the jury maintain complete discretion over the admissibility and weight of identification evidence.

There are good and reliable identification parades and there are bad and unreliable identification parades. There are good and reliable photo boards and there are bad and unreliable photo boards. It is up to the judge and the jury each playing their own role to sort out how good and reliable the identification evidence is. The government approach lets them play their role.

Contrary to the assertions of the Hon. Mr Wade during his second reading contribution on the bill, the government has considered his private member's bill of the same title. The government determined that the private member's bill was deficient in a number of particulars and therefore reintroduced this bill to parliament to provide honourable members with the opportunity to decide between the two approaches to this issue. I understand that the Hon. Mr Wade has requested that his private member's bill be debated tomorrow, and he has recently circulated amendments to the bill for consideration by members.

The government has, of course, considered those amendments, but it will await the outcome of its bill before determining what approach it will take to the Hon. Mr Wade's bill and his amendments. Accordingly, the government may respectfully request that the honourable members here agree to an adjournment of the debate on the Hon. Mr Wade's bill so that the government may consider the implications of the recently-filed amendments.

The council divided on the second reading:

AYES (9)
Brokenshire, R.L. Finnigan, B.V. Gago, G.E. (teller)
Hood, D.G.E. Hunter, I.K. Kandelaars, G.A.
Maher, K.J. Wortley, R.P. Zollo, C.
NOES (12)
Bressington, A. Darley, J.A. Dawkins, J.S.L.
Franks, T.A. Lee, J.S. Lensink, J.M.A.
Lucas, R.I. Parnell, M. Ridgway, D.W.
Stephens, T.J. Vincent, K.L. Wade, S.G. (teller)

Majority of 3 for the noes.

Second reading thus negatived.

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