There Is No Ownership of Witnesses: A Principle We Uphold Across Australia
- Brian AJ Newman LLB
- May 29
- 2 min read
One recurring issue we address in our Advocacy work—regardless of whether the matter arises in Sydney, Perth, Melbourne, Darwin, Adelaide, Hobart or anywhere in between—is the misunderstanding that parties in a dispute can somehow “own” a witness.
As advocates operating nationally, we regularly explain to both clients and opposing parties that witnesses are not property. Their purpose is not to support one side over the other, but to provide truthful, independent evidence that assists in determining the facts.
A Witness’s Duty Is to the Truth, Not a Party
Across all tribunals and commissions—from the Fair Work Commission to various state-based human rights and anti-discrimination bodies—witnesses are expected to present their evidence based on their personal knowledge or experience. They are not advocates and must not be pressured to conform to a narrative.
If a witness is seen as being coached or rehearsed, or if they appear unwilling to consider talking to another party due to pressure, the credibility of their testimony may be called into question. This is why tribunals often scrutinise the independence of a witness just as much as the content of their evidence.
This Misconception Arises Australia-Wide
Whether we're assisting a worker in Western Australia with a general protections application or advising someone in Tasmania on a discrimination complaint, we encounter the same belief: "That’s my witness."
We explain—repeatedly—that:
No party has a legal right to control a witness.
Witnesses are entitled to speak with both sides, or neither, if they choose.
Preventing someone from giving evidence or obstructing access to them could amount to interference with the proper administration of justice.
This is not just a technicality. It’s a fundamental safeguard in ensuring fair outcomes under Australia’s industrial relations and anti-discrimination frameworks.
Consistent Practice Across Jurisdictions
Whether a matter is being heard in:
the Fair Work Commission,
the Australian Human Rights Commission,
the NSW Anti-Discrimination Board,
the Equal Opportunity Commission of South Australia, or
the Western Australian Industrial Relations Commission,
the expectation is the same: witnesses must give their evidence freely, without pressure, and without allegiance to either party.
At 1800ADVOCATES, we guide our clients through this process ethically and professionally.
We work with witnesses to ensure their statements are presented clearly and truthfully, but we do not—and must not—influence their account. Our job is to facilitate evidence, not fabricate it.
Final Thought
There are no "owned" witnesses in any Australian jurisdiction. There are only individuals with a story to tell, and our role as advocates is to ensure they are heard—fairly, respectfully, and without interference. That principle underpins everything we do, as professional Employment and Human Rights Advocates.
Sources and Further Reading:
Comments