Western Australia's move to uniform evidence law 

Australia has two systems of evidence law. Most jurisdictions have adopted the uniform evidence legislation modelled on the Commonwealth's Evidence Act 1995; Western Australia, Queensland and South Australia retained their own statutes and the common law. Western Australia has now legislated to cross over, and a student working there has to know both where the law is going and what governs today, because those are not currently the same thing.

What the Evidence Act 2025 does

The Evidence Act 2025 (WA) is a complete replacement rather than an amendment.¹ Its long title is plain about the scope: an Act to provide for the law of evidence, to repeal the Evidence Act 1906 and the regulations under it, and to make consequential amendments to numerous other Acts.²

It is the most substantial reworking of the State's evidence law in more than a century. The 1906 Act was amended repeatedly but never comprehensively restructured, so the 2025 Act is not a tidy-up: it imports a different architecture, in which admissibility is worked through a sequence of exclusionary rules and exceptions rather than through the accumulated common law of the State.

The Act does not adopt the uniform scheme wholesale. It substantially aligns Western Australia with uniform evidence law while retaining and updating provisions of the 1906 Act regarded as best practice in the State, so it will be necessary to check whether a familiar uniform provision has been carried across in the same terms.

Passage is not commencement

This is the part most easily got wrong, and it is a general lesson rather than a quirk of this Act.

Section 2 provides that Part 1 commences on Royal Assent, that section 384 commences the day after, and that the rest of the Act commences on a day fixed by proclamation — with different days able to be fixed for different provisions. Two Divisions are tied instead to the commencement of provisions in other Acts.

The consequence is that the Evidence Act 1906 continues to govern proceedings in Western Australia until the repealing and substantive provisions are proclaimed. An answer that treats the 2025 Act as the operative law, or that says the 1906 Act "was replaced", states the position wrongly.

Staged commencement of this kind is common for large statutes, because courts, prosecutors and practitioners need lead time. It also means there is no single date on which everything changes: some provisions may be in operation while others are not.

How to check. The Western Australian legislation database records, for each Act, which provisions have commenced and on what date. That commencement table is the authority — not a media release, not a secondary summary, and not a recollection of when reform was announced.

What changes on commencement

For a student, the significant shifts are structural:

• Relevance becomes the statutory gateway, with evidence that is not relevant inadmissible and relevant evidence admissible unless excluded by a rule.
• Hearsay moves from the common law rule and its exceptions to a statutory rule with defined exceptions, including a first-hand hearsay scheme distinguishing available from unavailable makers.
• Opinion, tendency and coincidence, and credibility each become statutory codes with their own admissibility tests and leave requirements.
• Discretionary and mandatory exclusions are consolidated into statutory provisions balancing probative value against unfair prejudice.

Alongside the uniform architecture, the Act carries reforms directed at complainants and vulnerable witnesses — mandatory special witness status for complainants in sexual offence and family violence proceedings, pre-recorded evidence and remote testimony, witness intermediaries for children and people with communication difficulties, body-worn camera footage as evidence-in-chief in family violence matters, restrictions on improper questioning, and the removal of warnings that treated delay in complaint as undermining credibility. Several implement recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse.

Working in a jurisdiction mid-transition

Three habits matter while the change is under way:

1. Date the proceeding. Which statute applies turns on commencement and on the transitional provisions, which typically govern proceedings already on foot at the changeover.
2. Do not assume a uniform-evidence answer is a Western Australian answer. Until commencement, a proposition drawn from the Commonwealth or New South Wales Act is persuasive at best and often simply inapplicable.
3. Expect authority to thin out. Once the uniform scheme commences, decisions of other uniform jurisdictions become directly useful, while Western Australian authority on the 1906 Act loses most of its force. In the interim both bodies must be handled with care about which applies.

What the uniform scheme does not do

Adopting uniform evidence legislation does not displace everything around it.

• The common law survives in the gaps. The uniform Acts are not a code. Where they are silent — aspects of the voir dire, some questions of judicial notice, the treatment of certain privileges — the common law continues to operate.
• Other statutes still apply. Criminal procedure legislation, the rules of court, and subject-specific statutes carry their own evidentiary provisions, and those are unaffected by a change in the general evidence Act.
• Uniform does not mean identical. The Acts in the uniform jurisdictions differ in detail, and Western Australia's version retains State provisions. A proposition must be checked against the local text rather than assumed from the Commonwealth Act.

The other non-uniform jurisdictions

Queensland and South Australia retain their own evidence statutes and the common law. Once Western Australia's Act commences, they will be the remaining exceptions.

This matters for two reasons. A student citing an interstate authority must know whether it comes from a uniform jurisdiction, because a decision construing a uniform provision is of limited use in a jurisdiction with different words. And Western Australia's transition makes older Western Australian authority progressively less useful, while opening up a large body of uniform-jurisdiction case law that was previously of background interest only.

Applying this in a problem question

1. Establish the date of the proceeding and check the current commencement position for the provision in issue.
2. If the substantive Parts have not commenced, answer under the Evidence Act 1906 and the common law, and say so expressly.
3. If they have, work through the statutory sequence — relevance, then the exclusionary rule, then any exception, then the discretions.
4. Check whether the provision is a carried-over Western Australian one rather than the uniform text, because the wording may differ.
5. Where a witness is a complainant in a sexual offence or family violence proceeding, deal with the special witness and questioning provisions separately from admissibility.

Self-check

• Have I checked commencement rather than assuming passage put the Act into force?
• Have I named which statute governs the proceeding, and why?
• Have I avoided applying uniform-evidence authority to a period it does not cover?
• Have I checked whether the provision is uniform text or a retained Western Australian one?