Giving evidence from overseas via audio-visual link

In the aftermath of the COVID-19 pandemic, Australian courts and tribunals have shown a greater, though still limited, willingness to allow witnesses to give evidence remotely via audio-visual link (AVL). For witnesses located overseas and unable to travel to Australia, AVL offers a practical way to ensure their evidence is heard in civil proceedings. However, while the technology is relatively straightforward, the legal framework becomes significantly more complex when the witness is outside Australia.

The question of whether the Hague Evidence Convention applies to the taking of evidence by AVL remains unsettled. Some jurisdictions take the view that the Convention does apply, requiring prior authorisation from the foreign state before evidence can be taken remotely. Others consider that AVL testimony does not constitute the formal taking of evidence abroad and therefore falls outside the Convention's scope. In some cases, domestic legislation expressly permits