Appearing before a royal commission

Summons to appear

If a royal commission thinks your evidence will help its inquiry, it will issue you with a summons to appear as a witness. It is a criminal offence not to comply with a summons unless you have a reasonable excuse. The summons should include the date and location of the appearance.

You may also be asked to prepare a written statement. A lawyer can help you to draft this statement. If you do not have a lawyer you can ask the royal commission for help with how to get legal advice. You may also be eligible for legal financial assistance.

You must give your statement to the royal commission by the date that it specifies, which will be before the hearing date. It will be read by the lawyers assisting the royal commission and may be shared with lawyers representing other people appearing at the hearing. It will be used as the basis for the questions that you will be asked at the hearing by the lawyers assisting the royal commission (called “counsel assisting”) and potentially also by the commissioner/s.

Public access

A royal commission will generally hold hearings that are open to the public (including the media) and are streamed live through its website.

Most of the evidence will be published and the royal commission’s final report will usually be made public. This transparency is important for public trust in the inquiry.

However, in some limited circumstances, if the evidence is particularly sensitive or a witness is particularly vulnerable, the royal commission may decide to take evidence in private.

You may request that your evidence is taken in private or that your identity is not revealed. The royal commission will decide whether to grant this request. Where a royal commission allows you to give evidence with your identity protected, the live stream may avoid showing your face, your voice may be altered, and pseudonyms may be used.

Non-publication directions

A royal commission can also direct that certain evidence is not published.

If you do not want your evidence published you must notify the royal commission as soon as possible so it can decide whether to make a non-publication direction. In making this decision, the royal commission may consider whether the public interest in making the matter public is outweighed by the interest in protecting your privacy.

Appearing at a hearing

Royal commission hearings can be quite formal and resemble a court-room. Staff, attendees and witnesses are usually dressed in business attire. It is common practice for everyone to stand when the commissioner or commissioners enter or leave the room.

At the beginning of your evidence, you will be asked to swear an oath or affirm that what you will say is the truth. You must choose whether you want to swear an oath (which means promising to tell the truth while holding the Bible or another religious text) or affirm (which means making a declaration that you are telling the truth) and let the counsel assisting the royal commission know your choice before you give evidence.

During a royal commission hearing, counsel assisting will ask you questions about the information in your statement. The commissioner/s may also ask questions, often at the end of counsel assisting’s questions. There may also be lawyers present who represent the Commonwealth or other witnesses involved in the hearings, who will be able to ask you questions about your evidence (called “cross-examining”). During your appearance, you should answer the questions that are asked, and only answer questions within your knowledge. If you do not know the answer you should say so.

Legal protections

If you receive a summons to attend a hearing of a royal commission, you have legal protections under the Royal Commissions Act 1902.

Generally, information you give to a royal commission cannot be used against you in any civil or criminal proceedings in an Australian court. However, if a royal commission receives information that relates to a law being broken, it can pass that information on to the relevant authorities. This may lead to a different investigation about whether a law has been broken.

It is against the law for someone to prevent you from appearing at a royal commission, or to punish or disadvantage you for doing so. Your employer cannot dismiss you for appearing before a royal commission. If this happens to you, you can report your employer for investigation.

Offences

If you receive a summons to appear, you must comply with it. Failing to attend a royal commission without a reasonable excuse is an offence and can lead to imprisonment for 2 years.

It is also an offence to:

• refuse to swear an oath or affirm that you will tell the truth
• refuse to answer question put to you by the commissioners, without a reasonable excuse
• give false or misleading evidence
• intentionally disrupt or disturb a royal commission or interrupt its proceedings.

If convicted of one of these offences, you could be imprisoned or fined.

Witness expenses

If you live more than 50km from the hearing venue, the office of the royal commission will support the travel and accommodation for you to attend and give evidence. If you are called as a witness by the royal commission you can claim a fee if you have been unable to attend work because of your witness appearance.

If you have specific questions about witness expenses, contact the office of the royal commission. You will need to submit claims for expenses to the office of the royal commission within 60 days of the hearing.

Legal financial assistance

Legal financial assistance for reasonable legal representation and disbursement costs may be available for entities formally engaging with a royal commission. Information, including how to apply and assessment timeframes, will be made available on the Attorney General’s Department website at Commonwealth legal financial assistance | Attorney-General's Department (ag.gov.au).