Practice Guideline 2

Introductory matters

1. This Practice Guideline relates to the conduct of public hearings of the Royal Commission into Defence and Veteran Suicide (Commission). It should be read in conjunction with the Royal Commissions Act 1902 (Cth) (the Act), the terms of reference contained in the Letters Patent establishing the Commission dated 8 July 2021, and other Practice Guidelines.
2. As the Commission determines its program of public hearings, these will be published on its website. Details of upcoming public hearings may include the scope of those public hearings.
3. This Practice Guideline may be varied or replaced at any time.

Applications for leave to appear

4. People wishing to appear at a hearing (or part of a hearing) may apply for leave if they have a sufficient interest, for example, where they:
   1. have been summoned to give evidence;
   2. are a subject of the hearing;
   3. are likely to be the subject of an adverse allegation; or
   4. have a significant or special interest in an important aspect of the matters to which the hearing relates.
5. Leave to appear before the Commission may be granted subject to such conditions or limitations as the Commissioners determine.
6. Leave to appear before the Commission may, at any time, be varied or withdrawn by the Commissioners, or made subject to altered or additional limitations or conditions.
7. Applications for leave to appear:
   1. should be made on the form ‘Application for Leave to Appear at a Hearing of the Royal Commission’ (which is available on the Commission’s website) and should be accompanied by a short submission setting out the basis on which it is said the applicant should be granted leave (the form and the submission should be lodged with the Commission by emailing them to DVSRC.OSA@royalcommission.gov.au not less than seven days before the hearing or part thereof); and
   2. will be determined on the papers (including any submissions from Counsel Assisting or the Solicitors Assisting the Commission) in advance of the hearing or part thereof, and the outcome of the application will be communicated to the applicant, unless the Commissioners determine that a hearing is required to consider the application.
8. People may seek leave to appear at any time if something that has occurred during a public hearing leads them to believe that they should be granted leave.
9. Leave should be applied for as set out at paragraph 7 above. If the application is urgent then it should be marked accordingly and an explanation provided. If the applicant is seeking the recall of a witness then that should be indicated and supported with reasons, including why it was not possible for the applicant to have sought leave at an earlier time and why the need to recall the witness outweighs any possible distress of the witness and any other prejudice or inconvenience caused.

Matters arising from grants of leave to appear

10. A person who has been granted leave to appear will be entitled to appear and participate in accordance with the grant of leave, but subject to any relevant Practice Guidelines and to the Commissioners’ management of the proceedings.
11. A person granted leave to appear may, subject to the terms of the grant of leave, applicable Practice Guidelines and any decision of the Commissioners:
    1. apply to have evidence tendered or heard;
    2. apply for leave to examine or cross-examine a witness; and
    3. make submissions about the findings available to the Commission following the relevant hearing.
12. A person who has been granted leave to appear and wishes to apply for a decision by the Commission on a procedural, legal or other matter should at the earliest opportunity communicate (in writing, unless this is impossible due to urgency or other identified factor) with the Solicitors Assisting the Commission, identifying the issue and the decision sought and providing a brief supporting submission.
13. A person who has been granted leave to appear before the Commission may be represented by a legal representative at a hearing without any further need for that legal representative to obtain separate authorisation pursuant to s 6FA of the Act.

Witnesses

14. The Solicitors and Counsel Assisting the Commission will be responsible for deciding which witnesses to call to give evidence at hearings of the Commission, for determining when they will be called, for making necessary preparations, and for calling and leading evidence from them.
15. If a person granted leave to appear before the Commission wishes to have a witness called, that, with supporting reasons (including a summary of the evidence that it is anticipated would be given), should be communicated in writing to the Solicitors Assisting the Commission.  If Counsel Assisting declines to call a witness then the person who had sought that the witness be called may make an application to the Commissioners (by way of written communication to the Solicitors Assisting the Commission).
16. If the Solicitors and Counsel Assisting the Commission have decided to call, or are considering whether or not to call, a person who is legally represented then the representatives of the person will be asked to obtain from their client a statement for use as evidence-in-chief. The statement is to address issues identified by the Solicitors and Counsel Assisting the Commission and such other relevant matters as the person wishes to address.
17. If the Solicitors and Counsel Assisting the Commission have decided to call, or are considering whether or not to call, a person who is not legally represented then they shall confer and otherwise communicate with the person in order to prepare a statement for possible use as evidence-in-chief.
18. A person’s statement, or selected parts of a statement, may be tendered into evidence whether or not the person is called to give evidence in person. Counsel Assisting will determine whether or not a statement is to be tendered, in whole or in part.
19. Counsel Assisting the Commission will often invite a witness to confer before being called to give evidence (whether or not the witness is legally represented).
20. As a general rule, it is expected that Counsel Assisting the Commission will lead a witness’ evidence-in-chief by:
    1. asking the witness to adopt any statement that the witness has made (or part thereof selected by Counsel Assisting), and then the statement (or part) will be tendered; and
    2. asking the witness additional questions (which may sometimes include inviting the witness to provide a general summary of, or elaboration upon, the evidence in the statement).
       
       Consideration will be given by Counsel Assisting to departing from this general rule in order to accommodate the specific needs of individual witnesses (including when a witness has not been in a position to provide a written statement).
        
21. Individuals required to give evidence at a hearing may be provided with a ‘Summons to Attend and Give Evidence’ and appropriate notice of the time that the Commission will call upon the Summons.
22. Individuals unavailable to attend on a particular date should give notice of the date and the cause of the unavailability to the Solicitors Assisting the Commission at the earliest opportunity.
23. Individuals required to give evidence will, in due course, be served with a notice for the production of their witness statement.

Publication of witness schedules and evidence

24. A list of the witnesses the Commission intends to call during the public hearings will be available on the Commission’s website at defenceveteransuicide.royalcommission.gov.au prior to any day of a public hearing, and may be updated during the course of the public hearings.
25. In general, a statement that Counsel Assisting intend to tender into evidence will be made accessible to persons who have been granted leave to appear at the relevant hearing. The Commission may make directions in relation to the publication or non-publication of documents, including statements made by witnesses, or parts of statements of witnesses, if it considers it appropriate or necessary to do so. Any such application must accord with the provisions of Practice Guideline 4.

Examination and cross-examination

26. Where witnesses are called to give oral evidence, unless the Commissioners grant leave to another person, only Counsel Assisting the Commission will be allowed to examine and/or cross-examine any witness.
27. A person (other than a legal representative for the witness in question) who wishes to examine or cross-examine a witness should (in writing to the Solicitors Assisting the Commission, unless urgent or other circumstances require otherwise) make an application that:
    1. identifies the purpose of the examination;
    2. identifies any evidence already given or expected to be given that will be challenged;
    3. sets out any additional evidence to be led and any other issues to be canvassed; and
    4. provide copies of any documents to which the examiner proposes to take the witness.
28. The procedure for examination and cross-examination, subject to change where the circumstances require, will generally be as follows:
    1. Repetitive questioning or duplication will not be permitted. Where people represented before the Commission have a common or similar interest in relation to the evidence of a particular witness:
       1. Their representatives should consult with each other and with Counsel Assisting the Commission before the witness is called.
       2. All relevant people should try to reach agreement about the order of questioning and general areas or subjects of examination and cross‑examination.
       3. If no agreement is reached, the Commissioners will direct the order.
       4. Revisiting general areas or subjects covered by earlier examination or cross‑examination by people with a common or similar interest will not be permitted.
    2. Cross-examination will be limited to the matters covered by the grant of leave to examine or cross-examine, and may otherwise be restricted by the Commissioners in accordance with the power conferred by s 6FA of the Act. In particular, the Commissioners may limit the particular topics or issues upon which a person can examine.
    3. A copy of any document proposed to be put to a witness must (if not previously provided) be provided to Counsel Assisting the Commission as soon as possible after a decision is made to use the document and in all cases prior to the date of the hearing at which it is intended to be used.
    4. Subject to any contrary direction in particular circumstances, as the Commissioners are conducting an inquiry and not a judicial proceeding, examination and cross‑examination that raises collateral matters going only to credit will not be permitted.
    5. Examination and cross-examination will be permitted only to the extent that the Commissioners believe it will assist in their task of investigating and reporting on the subject matter of the terms of reference.
    6. After Counsel Assisting has examined a witness in chief:
       1. Each person who has been granted leave to examine or cross-examine may, to the extent that leave has been granted, examine or cross‑examine the witness.
       2. The legal representative (if any) for the witness may then, with leave (for which application may be made orally at the time), examine the witness.
       3. Finally, Counsel Assisting the Commission may then ask any final questions arising from the witness’ earlier evidence.
29. It is an offence not to answer questions posed by the Commission (subject to reasonable excuses such as public interest immunity) or to answer them falsely.
30. To the extent that a hearing of the Commission is conducted as a virtual hearing, the process outlined in this Part H should be read in conjunction with Practice Guideline 5 and modified to the extent necessary.

Documents which may be tendered in hearings

31. Counsel Assisting the Commission, subject to the Commissioners’ control, will determine which and when documents are to be tendered.
32. Before the commencement of any public hearing, each person granted leave to appear may, at the discretion of Counsel Assisting or the Solicitors Assisting the Commission, be given confidential access to documents that are likely to be tendered as exhibits at the public hearing and which could affect the person’s interests.
33. Additional documents may be tendered by Counsel Assisting the Commission during the course of a public hearing. If a person has a significant interest in the issues to which an additional document being tendered relates, the Commission will (subject to any needs regarding particular documents) provide the person with a copy of the additional document, or relevant part of the document.   
34. If a person seeks to have a document received by the Commission into evidence in a public hearing, the process is as follows:
    1. The person must, not less than 7 days before the public hearing (unless exceptional circumstances exist), notify the Solicitors Assisting the Commission that the person wishes to have the document received into evidence at the public hearing and provide to the Solicitors Assisting the Commission a copy of the document, together with submissions on why the document should be received into evidence.
    2. The Commissioners may require the production of other documents.
    3. Subject to any ruling by the Commissioners, Counsel Assisting the Commission will decide whether or not the documents are to be tendered.
35. An application to tender a document may only be made directly to the Commissioners if this process has been completed and Counsel Assisting the Commission has refused to tender a document.

Publication and Access to Evidence

36. In respect of all evidence, oral and documentary, the following will apply unless varied either generally or in respect of particular evidence:
    1. Transcripts of evidence in public hearings will be uploaded to the Commission’s website as soon as they are available.
    2. The evidence of any witness before the Commission will be published by the Commission unless a direction is made prohibiting or restricting the publication of particular evidence.
    3. Any person (or the legal representative of that person) having leave to appear before the Commission will have access to any book, document or writing received into evidence (limited to that evidence that is directly relevant to the issues in relation to which they have been given leave to appear) for the purpose only of the appearance before the Commission and subject to any other direction made by the Commissioners.
    4. For the purpose of, and to the extent necessary for, the public reporting of the proceedings of the Commission, any representative of a newspaper, magazine, radio station, online publication or television channel may, after the Solicitors Assisting the Commission have advised that a book, document or writing that has been received into evidence and is available for inspection, inspect and take copies or extracts from the book, document or writing, subject to the following conditions:
       1. The copy or extract, or information from the book, document or writing, is not be used or permitted to be used for any purpose other than the public reporting of the proceedings of the Commission.
       2. Any part of the material in question that is the subject of a direction prohibiting its publication must not be published. If it is believed that any such direction may obstruct proper reporting of any matter of significance, an application may be made to vary or lift the nonpublication direction.
37. Any person appearing before the Commission may apply in accordance with Practice Guideline 4 for a direction that all or part of their evidence not be published.

Interpreters

38. Interpreters (including Auslan interpreters) will be provided by the Commission as needed. Witnesses and parties must ensure that the Commission is advised of the need for an interpreter as soon as reasonably practicable, and, in any event, in sufficient time for arrangements to be made. Interpreters will be accredited at the first professional level, Interpreter, with the National Authority for Accreditation of Translators and Interpreters (NAATI). Only in languages where no accredited professional level interpreter is available will a Paraprofessional Interpreter be utilised.

Counselling and other support

39. Counselling and other support will be provided or permitted by the Commission as needed.
40. Witnesses and others must ensure that the Commission is advised of the need for a counsellor or other support as soon as reasonably practicable, and, in any event, in sufficient time for arrangements to be made. Requests for counselling or other support should be made in writing in the first instance to DVSRC.OSA@royalcommission.gov.au.

General

41. Nothing in this practice guideline should be taken as limiting the Commissioners’ powers, whether at the request of any person or on the Commissioners’ own initiative, to treat any material or information as confidential and to take any steps in respect of the preservation of such confidentiality.