Practice Guideline – Cross Examination of Witnesses

1. This Practice Guideline relates to the conduct of the Royal Commission into the Robodebt Scheme (the "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 18 August 2022 and other Practice Guidelines.
2. This Practice Guideline sets out the procedure for examination of witnesses before the Commission by persons other than Counsel Assisting the Commission.
3. Where the Commission thinks it appropriate, this Practice Guideline may at any time be varied, changed or replaced.
4. Unless otherwise specified, all contact with the Commission regarding this Practice Guideline should be made by email to RRC.Solicitor@royalcommission.gov.au. If you do not have access to email, please call 1800 317 022 for assistance.
5. The Commission will assume that all communications from the Commission to a person who has provided information to or contacted the Commission may be directed to the email address or postal address from which that person’s communication to the Commission was received, unless that person has specified another email address or postal address as their contact.

6. Except as provided at paragraph 8 below, all applications for leave to cross-examine a witness before the Commission should be made in writing and lodged by email with the Commission. The following information must be provided by email:
   1. Name of witness to be cross-examined;
   2. A reference by paragraph number to the witness statement of the witness which is proposed to be the subject of cross-examination
   3. Description of the proposed cross-examination and / or list of proposed questions
   4. Proposed time required to conduct the cross-examination
   5. Brief explanation as to why the proposed examiner has a sufficient interest to cross-examine the witness on the topics proposed.
   6. A copy of any document proposed to be put to the witness.
7. All applications for leave to cross-examine a witness before the Commission must be made as soon as possible after a decision is made to seek to cross-examine that witness and by no later than 11:00am on the business day before that witness is scheduled to appear before the Commission.
8. Where circumstances do not allow applications for cross-examination to be in accordance with paragraph 6 and 7 above, those applications may still be considered.  For example, if the topics for cross-examination genuinely arise out of the witness’ oral evidence, an application for leave to cross-examine may be made orally during the course of the hearing at the conclusion of the examination of the witness by Counsel Assisting the Royal Commission.

When leave to cross examine may be granted

9. In determining whether a person has a sufficient interest to cross-examine a witness, the Commission will consider each of the matters described at paragraph 6 above.
10. The procedure for cross-examination will generally be as follows, subject to change where the circumstances require:
    1. Repetitive questioning or duplication will not be permitted. Where persons 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. agreement should be attempted to be reached between all relevant persons about the order and general areas or subjects of cross-examination;
       3. if no agreement is reached, the Commissioner will direct the order; and
       4. revisiting general areas or subjects covered by earlier cross-examination by persons with a common or similar interest will not be permitted.
    2. Cross-examination will be limited to the matters in issue, and may otherwise be restricted by the Commissioner in accordance with the power conferred by s 6FA of the Act. In particular, the Commissioner may limit the particular topics or issues upon which a person can examine.
11. Cross-examination will be permitted only to the extent that the Commissioner believes it will assist her task of investigating and reporting on the subject matter of the terms of reference.