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Practice Guideline 5

  • Practice Guidelines
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Practice Guideline 5 - Virtual Public Hearings [DOCX]
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This Practice Guideline relates to the conduct of public hearings of the Royal Commission into Defence and Veteran Suicide.

Practice Guideline 5 - Virtual public hearings

Introductory matters

  1. This Practice Guideline relates to the conduct of public hearings of the Royal Commission into Defence and Veteran Suicide (Commission) that the Commissioners determine should be conducted virtually in part or in full.
  2. The term ‘virtual hearing’ is used throughout this Practice Guideline to refer to Commission hearings conducted by such electronic means as videoconferencing, teleconferencing, or both. A virtual hearing is an official hearing of the Commission.
  3. As a consequence of the COVID-19 pandemic, the Commissioners may decide from time to time that a public hearing of the Commission should be conducted as a virtual hearing in part or in full. The use of technology in these circumstances will necessitate specially adapted procedures to facilitate the efficient and fair collection of evidence.
  4. This Practice Guideline 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. To the extent of any inconsistency with other Guidelines, this Practice Guideline prevails in relation to virtual hearings.
  5. This Practice Guideline may be varied or replaced at any time.

Location of virtual hearings

  1. The Chair of the Commission will designate the place at which a virtual hearing is to be considered to be taking place, notwithstanding that the Commissioners may be in different places.
  2. Only the Commissioners, Counsel Assisting, Solicitors Assisting and Commission staff and contractors will be physically present in the hearing rooms during virtual public hearings, which may be in different locations.  However, the Commission will be sensitive to, and will try to make appropriate arrangements for, individual witnesses who may need to give their evidence in the physical presence of the Commissioners.
  3. Any person granted leave to appear before the Commission, and any legal representatives of such persons, will be provided with details to separately access the Commission’s videoconferencing platform, so as to view the virtual public hearings in real time. These details will be provided by the Solicitors Assisting prior to the part(s) of the hearing for which the person and/or legal representative has leave.
  4. All others wishing to observe the hearings may do so via the broadcast on the Commission’s website.

Participation in a virtual hearing

  1. To maintain orderly proceedings, access to the Virtual Hearing Room will (subject to any further directions the Commission may make in exceptional circumstances) be limited to the following:
    1. Counsel and Solicitors Assisting the Commission;
    2. witnesses called to give evidence before the Commission;
    3. the legal representatives of such witnesses (the Nominated Legal Representative);
    4. the legal representatives of other persons with leave to appear; and
    5. upon a prior application made in writing to the Solicitors Assisting the Commission and approved by the Commission, up to two other people (e.g. a support person) accompanying a witness giving evidence or a person who has been given leave to appear.

      (together, Participants)
       
  2. Etiquette for participating in a virtual hearing should generally be the same as for participating in an ‘in person’ hearing.  For virtual hearings the following also applies:
    1. Only one person should speak at a time and each individual must take care not to speak over the top of other Participants.
    2. When an individual is not speaking, their microphone must be muted to minimise unnecessary background noise.
    3. Participants other than Counsel Assisting and witnesses and their Nominated Legal Representative must mute their microphones and ensure that their camera is turned off.
    4. All Participants must ensure that they are situated in a quiet physical location that complies with any social distancing requirements in place at the time, and where they will avoid interruption.
    5. Except if, and when, invited to question the witness, persons with leave to appear, and their lawyers, should speak rarely and only in exceptional circumstances (including to make a necessary objection), bearing in mind the logistical difficulties of virtual hearings.
  3. There may be a delay between the individual speaking and the sound being heard by the other Participants. Allowances must be made during the hearing as appropriate to accommodate any delay being experienced to avoid one participant talking over another.
  4. Visual and audio quality can also be affected by a number of factors that can lead to unexpected loss of connection or deterioration of picture or sound quality to an unacceptable level. Individuals should remain alert to any deterioration in picture and sound quality and inform the Solicitors Assisting the Commission immediately if this is impacting on their ability to participate fully.

Participation by witnesses

  1. All witnesses summoned to attend to give evidence at a virtual hearing will be required to appear by videoconference unless otherwise advised. Prior to any appearance:
    1. A witness may make a written application to not be identified. This process is as follows:
      1. The application must:
        1. be made at least 48 hours prior to the witness’ scheduled appearance; and
        2. be supported by a short statement of evidence and a short written submission identifying the basis of the application.
      2. The Commissioners, who may invite or require Counsel or Solicitors Assisting the Commission to make submissions in response, will assess the written material and will make a direction on the papers, unless it is considered that a hearing is required to consider and determine the application.
    2. A witness may make a written application to provide evidence by telephone. This process is as follows:
      1. The application must:
        1. be made at least 48 hours prior to the witness’ scheduled appearance; and
        2. be supported by a short statement of evidence and a short written submission identifying the basis of the application.
      2. The Commissioners, who may invite or require Counsel or Solicitors Assisting the Commission to make submissions in response, will assess the written material and will make a direction on the papers, unless it is considered that a hearing is required to consider and determine the application.
      3. The Commissioners will only grant leave to provide evidence by telephone in exceptional circumstances.
    3. Specific arrangements for witnesses to give evidence (including testing of their videoconference or telephone connection) will be provided to each witness ahead of their testimony. Device checks will be arranged with witnesses:
      1. in the two working days before they are scheduled to give evidence to confirm that their technology is operating effectively (legal representatives are permitted to attend such device checks); and
      2. approximately 30 minutes before their scheduled start time to complete final testing.
    4. Witnesses must display their full name and the organisation they are representing, if applicable (for example ‘Jane Smith – Sample Co Pty Ltd’).
    5. Each witness will be placed into the virtual breakout room (private room) until the witness is called to give evidence.
  2. During witnesses’ appearances to give evidence before the Commission:
    1. Witnesses must ensure that there are no other persons present in their physical location while giving evidence before the Commissions, save as may be necessary for the limited purposes of receiving technological support and assistance to identify and call up documents, and as otherwise permitted by the Commission, and subject to any directions the Commission may make.
    2. Where a direction is made that a witness not be identified, that witness will not be shown over the videoconference, except to the Commissioners, Counsel Assisting, Solicitors Assisting the Commission, Commission staff and contractors, persons with leave to appear at the virtual hearing and their legal representatives, the Nominated Legal Representative, and the witness’ support person, where applicable.
    3. Witnesses will be invited to unmute their microphone immediately prior to giving evidence.
    4. Witnesses will be sworn in or affirmed by the Associate to the Commissioners.  Witnesses can choose to take an oath or affirmation via videoconference. Witnesses choosing to take an oath are not required to hold a religious text. In circumstances where a witness would like to swear an oath upon a religious text, it will be the responsibility of the witness and/or their legal representative(s) to ensure that text is available.
    5. Witnesses will be permitted to address the Commission in the usual manner when responding to questions put to them.
    6. Any witness who wishes to have a support person present in the room while they give evidence, pursuant to paragraph 10.e above, must seek approval from the Solicitors Assisting the Commission at least 48 hours before giving evidence. Any support person or legal representative must not, without the leave of the Commission, communicate with a witness while the witness is giving evidence.

Participation by persons other than witnesses

Provisions relevant to Nominated Legal Representatives

  1. Prior to any hearing in which the Nominated Legal Representative is participating:
    1. they must login 30 minutes prior to the scheduled commencement of the witness’ evidence, with their microphone on mute and their camera turned on;
    2. they must participate in a device check of the audio-visual technology the Nominated Legal Representative is to use during the hearing;
    3. during the hearing, they will be required to switch off their cameras and leave their microphone on mute unless addressing the Commission as outlined below; and
    4. they must display their full name and, if applicable, their law firm, instructing law firm or equivalent, if applicable (for example ‘Jane Smith – Sample Law Firm’).
  2. During the appearance, the Nominated Legal Representative will be able to turn on their camera, unmute their microphone, and address the Commission during the public hearings, subject to the following:
    1. The Nominated Legal Representative must refrain from turning on their camera and unmuting their microphone while Counsel Assisting is examining a witness unless it is necessary to make an objection.
    2. When considering the need to address the Commission, the Nominated Legal Representative should have regard to the following:
      1. the need for the Commission to maintain orderly proceedings, and the added difficulty of maintaining orderly proceedings in a virtual environment; and
      2. once the Nominated Legal Representative turns on their camera and unmutes their microphone, their image and voice will be broadcast within the Virtual Hearing Room and, unless the Commission otherwise directs, to the public via the Commission’s live-stream.
  3. With the Commissioners’ leave, Nominated Legal Representatives may examine their clients following the examinations undertaken by Counsel Assisting and anyone else permitted by the Commission to examine the witness. Any such examination must be limited to matters directly arising out of Counsel Assisting’s, or any other, examination (and to other matters with the Commissioners’ leave), and will be conducted using the Commission’s videoconferencing platform, which will be unmuted for this purpose.

Provisions relevant to other Participants with leave to appear

  1. Those persons who have been given access to the Virtual Hearing Room, other than the Nominated Legal Representative and the witness, will:
    1. be required to log in 15 minutes prior to the scheduled commencement of the public hearing;
    2. not be permitted to address the Commission, unless exceptional circumstances arise or pursuant to leave granted by the Commission prior to the hearing; and
    3. have their camera and microphone settings disabled throughout the public hearings.

Cross-examination, urgent applications and objections in virtual hearings

  1. Other than in exceptional circumstances, and with the Commissioner’s leave, no person with leave to appear will be allowed to cross-examine a witness.
  2. The process for leave to cross-examine in a virtual hearing is as set out in Practice Guideline 2, except as follows:
    1. The specific questions that a person believes should be asked of, or topics that should be explored with, a particular witness will be provided to Counsel Assisting the Commission.
    2. If Counsel Assisting the Commission is able to deal with the questions and topics proposed by a person, the Solicitors Assisting the Commission will advise the person that this course will be taken.
    3. If Counsel Assisting the Commission is unable to deal with those questions or topics then the application for leave to cross-examine will be determined in the regular course as outlined in Practice Guideline 2.
  3. In the event that a legal representative of a person with leave to appear (or such a person who is unrepresented) wishes to make an urgent application or objection during the course of a hearing:
    1. If the legal representative or person is observing the hearing by way of the Commission’s videoconferencing facilities, the legal representative or person may unmute themselves to object or seek leave to address the Commissioners directly.
    2. In the event that the videoconferencing platform is not available, or not functioning, the legal representative or person must notify the Solicitors Assisting the Commission using a dedicated live communications channel established for that purpose. Solicitors Assisting the Commission will bring the application to the Commissioners’ attention as a matter of urgency. The communication to the Solicitors Assisting the Commission must indicate that it is an objection to a question, or briefly state the nature of the application (to enable Solicitors Assisting the Commission to communicate that to the Commissioners so that the Commissioners may appropriately consider next steps, including taking a short adjournment).

Livestream and recording

  1. All public hearings will be broadcast to the public on the Commission’s website (defenceveteransuicide.royalcommission.gov.au). The broadcast will be closed-captioned and subject to a short delay (usually less than 5 minutes).
  2. All aspects of the public hearings will be audio and visually recorded.

Further directions

  1. Further directions may be given about the use of the relevant technology from time to time (for example, on seating arrangements to ensure all individuals are in view).