X v Australian Prudential Regulation Authority [2007] HCA 4 | Case summary

X v Australian Prudential Regulation Authority [2007] HCA 4 | Case summary | Zoe

Something more should be said here respecting the avenues for administrative and judicial review of disqualification decisions by APRA made in exercise of its powers under the Insurance Act. A request for internal review by APRA may be made under s 63(2); applications then may be made to the AAT for review of decisions of APRA affirmed or varied under that procedure (s 63(7)). From the AAT, there is an "appeal" to the Federal Court on a question of law. This is provided by s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"). In addition, disqualification decisions by APRA answer the definition of decisions to which the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") applies, and are not excluded by Sched 1 thereof.
However, the appellants chose another avenue of judicial intervention to bring to a halt any further proceedings by APRA upon the preliminary views formed by Mr Godfrey. Section 39B of the Judiciary Act 1903 (Cth) relevantly confers original jurisdiction upon the Federal Court with respect to any matter in respect to which an injunction is sought against an officer of the Commonwealth (s 39B(1)) and in any matter arising under any laws made by the Parliament (s 39B(1A)(c)).
The appellants instituted proceedings in the Federal Court seeking, together with declaratory relief, an order restraining APRA from taking any further action with respect to X and Y pursuant to s 25A(1) of the Insurance Act[2]. The substance of the declaratory relief that was sought was that APRA did not have the power to disqualify X and Y pursuant to s 25A(1) of the Insurance Act, with the consequence that it was acting and proposing to continue to act in excess of its jurisdiction.
The primary judge (Lindgren J)[3] described the case for the lack of power as resting upon two alternate grounds. The first was that the power of disqualification was so limited as to apply only to persons who have held senior insurance positions in Australia or intend to do so in the future, neither of which circumstance applied to X or Y. That submission was rejected by Lindgren J and on appeal by Emmett, Allsop and Graham JJ[4]. A special leave application to this Court to challenge that holding was unsuccessful but special leave was granted to test the holding on the second ground.
This appeal thus is concerned with the second of the grounds put forward in support of the case for the absence of power. Lindgren J identified this alternative basis as follows: were APRA to proceed to disqualify X or Y, APRA thereby would be causing to those persons a disadvantage "for or on account of" evidence given by that person to the HIH Royal Commission; this outcome would be an injury by APRA to these witnesses of the kind forbidden by s 6M of the Royal Commissions Act.
It should be remarked here that contravention of s 6M is an indictable offence which requires trial by jury pursuant to s 80 of the Constitution[5] and which attracts a penalty of $1,000, or imprisonment for one year. This second ground in support of the absence in APRA of a power of disqualification otherwise conferred by s 25A(1) of the Insurance Act thus makes several assumptions respecting the application to APRA of s 6M of the Royal Commissions Act. It would require the clearest of intentions that the penalties provided by s 6M would apply to the Commonwealth and none is apparent in the Royal Commissions Act[6]; and there may be a question whether a "Commonwealth authority" such as APRA[7] has the character of the Commonwealth for this purpose[8]. None of these matters was put in issue and they may be placed to one side.
Lindgren J noted that APRA had not yet decided to disqualify X or Y so that arguably the proceedings in the Federal Court were premature. Further, in order to succeed the appellants had to establish that APRA would not lawfully be able to be satisfied that X and Y were not fit and proper persons to be or to act as a senior manager of a foreign general insurer.
However, Lindgren J did not enter upon any questions of the inappropriateness of proceeding immediately to decide what appeared to be the basic issues in the case[9]. By consent of the parties his Honour ordered[10] that there be decided separately and before any other question in the proceedings two questions. That which is presently in issue on this appeal read (when later reframed by Lindgren J):

Something now should be said of the position respecting commissions in England before the 1892 Act. The general history of that subject, with particular reference to the relationship with the criminal law and the judicial power and the need for statute to provide coercive means to supplement the prerogative, has been traced in earlier judgments in this Court, particularly by Griffith CJ in Clough v Leahy[29], by Dixon J in McGuinness v Attorney-General (Vict)[30] and by Brennan J in Victoria v Australian Building Construction Employees' and Builders Labourers' Federation[31]. This appeal requires attention to a narrower subject, the protection afforded witnesses.
Specific commissions were established in the latter part of the nineteenth century by the Trades Union Commission Act 1867 (UK)[32], the Belfast Commission Act 1886 (UK)[33], the Metropolitan Board (Commission) Act 1888 (UK)[34] and the Special Commission Act 1888 (UK)[35]. The second and fourth of these acquired some fame as "the Belfast Riots" Commission and "the Parnell Commission"[36]. In each case, powers of punishment for contempt were conferred upon the Commissioners and were identified as corresponding to those of the High Court of Justice in England or Ireland as the case may be.
Provisions rendering statements by witnesses inadmissible in later proceedings in terms similar to those later found in Australia in s 6DD of the Royal Commissions Act also were made in this earlier English legislation. The occasion for such provision may have been a perceived need to overcome the ruling by Abbott J in R v Merceron[37]. On a trial of a magistrate for corruptly granting licences to public houses which were his own property, Abbott J ruled that there might be admitted evidence of what he had said in the course of his examination before a committee of the House of Commons. His Lordship overruled the objection that the evidence was inadmissible because it had been made under compulsory process from the House of Commons and under pain of punishment for contempt. Subsequently, in McGuinness[38], Latham CJ saw provisions such as s 6DD as avoiding usurpation of the functions of a court of justice.
The provision in the 1892 Act of additional means, through the criminal law, of dealing with conduct victimising witnesses which otherwise would be punishable only by the processes of contempt has been influential in framing the federal law of this country, not only the Royal Commissions Act[39]. The Final Report of the Joint Select Committee on Parliamentary Privilege[40] was presented in October 1984. Paragraph 9.5 stated:

Section 1C of the Royal Commissions Act applies Ch 2 of the Criminal Code to offences including that provided in s 6M. Chapter 2 contains particular provisions for strict liability and absolute liability in cases where fault elements are not required (Ch 2, Pt 2.2, Div 6). Some offences, for example, the failure of witnesses to attend or produce documents which is proscribed by s 3(1) and (2) of the Royal Commissions Act, are identified by the section creating the offence as an offence of "strict liability". Section 6M (like s 6O) is not such a provision. Divisions 4 and 5 dealing with the fault elements or particular physical elements of the offence thus are applicable. A physical element may be conduct or the result of conduct, and the conduct must be voluntary (s 4.1, s 4.2); the fault element for a particular physical element may be intention, knowledge, recklessness or negligence (s 5.1). Section 5.1(2) provides that sub‑s (1) does not prevent a law that creates a particular offence from specifying other fault elements (that is, other than intention, knowledge, recklessness or negligence) for a physical element of that offence.
The respondents correctly submit that in the alleged contravention by them of s 6M there are two "physical elements": first, the sending on 18 February 2005 to X and Y of the "show cause" letters and, secondly, the result of that conduct in causing disadvantage to X and Y. Further, the "fault element" for those requisite "physical elements" is supplied by the phrase "for or on account of".
Assistance in construing those words in s 6M is provided by what was said in this Court in a contempt case, Lane v Registrar of Supreme Court of NSW[49]. That case concerned alleged contempt of the Supreme Court by reason of a failure to produce documents in answer to a subpoena after legal advice that the documents were outside the scope of the subpoena. This Court held that there had been no contempt. In the joint judgment of Gibbs CJ, Mason, Murphy, Wilson and Brennan JJ, reference was made to Butterworth and to the earlier decision in Rowden v Universities Co‑operative Association Ltd[50]. Their Honours continued[51]:

Section 6P of the Royal Commissions Act, dealing with the communication of information, postulates the concurrent operation of that statute with the administration by authorities such as APRA of statutes including the Insurance Act. In the present case, on the material on which the question for separate decision was presented to the primary judge, there is no ground to reach any conclusion other than that Mr Godfrey was proceeding in discharge of the statutory powers of a regulatory nature conferred upon APRA by the Insurance Act. Nor was there any footing for a conclusion that a continuation by APRA of that process would be other than for the proper discharge of its statutory functions.
The expression in s 6M "for or on account of" involves notions of purpose, motive, object and intention identified in Lane with reference to what had been said in the judgments in Butterworth. It is, as it was in Lane, unnecessary to make any particular choice between these terms. The point is that none of them applies to identify what has happened in this case and what is proposed if the investigations by APRA continue. Once it is accepted, as it must be, that what Mr Godfrey has done, and what APRA proposes to do, are for the proper discharge of APRA's statutory powers and functions, it is then apparent that there is not the connection between the attendance of X and Y at the Commission, or the evidence they gave, with the past or threatened conduct of Mr Godfrey and APRA, that is captured by the expression "for or on account of". The evidence that X and Y gave at the HIH Royal Commission may provide some, or even all, of the material which APRA may consider, and upon which it may rely, in giving effect to the regulatory provisions of the Insurance Act. Any disadvantage suffered by X or Y, as a consequence of the proper application of those regulatory provisions, would not be "for or on account of" his attendance at the Royal Commission or the evidence he gave. Neither Mr Godfrey nor APRA has victimised, and neither proposes to victimise, the appellants in the sense required for the commission of an offence under s 6M of the Royal Commissions Act.
These conclusions do not depend upon any specific significance lent by s 6DD to the construction of s 6M. The inadmissibility of statements or disclosures made in answer to questions put in the course of a Royal Commission in certain subsequent curial civil or criminal proceedings does not bear upon the deliberations of APRA when exercising its powers of disqualification under the Insurance Act.
The provision made by s 6DD, like the protection afforded witnesses by s 6M, the intentional contempt provision of s 6O and the communication provision of s 6P, may be seen as assisting the effective operation of Royal Commissions. But s 6DD has no immediate bearing upon this appeal. This should be reflected in the order to be made in this Court. As Lindgren J pointed out in his reasons for judgment, in the proceedings before him the appellants abandoned an argument that there had been a contravention of s 6DD. That earlier argument was taken up in the form of the question as originally framed by Lindgren J. The question should be answered in a way that reflects the appellants' case as it was finally put.

The facts: The background facts in this appeal are explained in the joint reasons[61]. The evidence which the first appellant (known by the initial "X") and the third appellant (known by the initial "Y"), officers of a foreign corporation incorporated in Germany (known by the initial "Z"), object to being used by the Australian Prudential Regulation Authority ("APRA") was adduced before a federal Royal Commission ("the HIH Royal Commission") established to inquire into the failure of the HIH Insurance Group ("HIH"). It was formerly a major Australian insurer.
As the report of the HIH Royal Commission discloses, the failure of HIH caused huge losses to the investing public in Australia and beyond; substantial losses to those who had been insured by HIH, or who were entitled to the benefits of such insurance; widespread suffering and anxiety for many such persons; and damage to Australian business confidence generally, and to confidence in the insurance industry specifically. The establishment of a federal Royal Commission is not a trifling thing in Australia. A Royal Commission is a major investigatory mechanism that enjoys exceptional powers designed to achieve, outside the ordinary machinery of law enforcement and industry regulation, an inquiry that will reveal facts and permit executive governments to take administrative, criminal and other measures to sanction any demonstrated wrongdoing and to prevent its repetition. The interpretation by this Court of the Royal Commissions Act should be undertaken so as to achieve, and not to frustrate, the provision by the Parliament of such exceptional powers[62].
The legislation: The issue for decision in this appeal is, primarily, the meaning of s 6M of the Royal Commissions Act. As the joint reasons point out, that Act, in its original form, was one of the first enactments of the Australian Federal Parliament. Its terms were greatly influenced by the legislation enacted in the latter part of the nineteenth century by the Imperial Parliament in the United Kingdom[63].
The provenance of the Australian provisions is made clear by an examination of the language of the Witnesses (Public Inquiries) Protection Act 1892 (UK)[64]. In the manner of Imperial legislative drafting of that time (familiar to Australians whenever they look at the sparse language of their Constitution, prepared for submission to the same Parliament) the language of the legislation was expressed with high compression. Packed into a single section were many words and concepts which today, in the style of contemporary drafting, would be divided up so as to deal separately with different ideas and to avoid the confusion and ambiguity that may attend such a compressed use of the English language.
The provisions of s 2 of the 1892 Act are set out in the joint reasons[65]. It is sufficient to notice that, in the text of that single section is contained a series of "acts" which are rendered misdemeanours against the public inquiry provided for. These are punishable, upon conviction, in accordance with specified penalties. The acts of the accused that attract the provision include where the accused "threatens, or in any way punishes, damnifies, or injures, or attempts to punish, damnify, or injure, any person". The causes that enliven the section are the acts of any person (the accused) towards another person "for having given evidence upon any inquiry, or on account of the evidence which he has given upon any such inquiry". The section is then still further complicated by an exemption where "such evidence was given", by inference by the subject of the section, "in bad faith". So within five lines of the statute book, three ideas were put into play. First, the forbidden conduct of the actor (accused); secondly, the conduct of the subject (witness) before the public inquiry; and thirdly, the exemption for evidence given in bad faith.
There is a like compression in the language of s 6M, in issue here. We must be grateful for small mercies because the Australian drafter has at least removed the third idea (evidence given in bad faith) and split up the presentation of the second. However, the collection of forbidden acts for forbidden purposes remains very tightly packed[66]. Section 6M states[67]:

Immediately, the ambiguity that is inherent in this mode of drafting (a "minimalist" style of legal expression) is apparent. Is the collection of verbs intended to refer, in sequence, to the collection of nouns that follows? Thus, does the verb "uses" relate solely to the noun "violence"; "causes" to the noun "punishment"; "inflicts" to the nouns "damage, loss, or disadvantage"?
There is some internal support for this sequential approach to s 6M. Thus, "uses" scarcely relates comfortably to "punishment" or the subsequent nouns in the collection. On the other hand, "causes" could quite readily refer to "violence" and any of the other nouns used in the section. As well, "inflicts" could apply to "violence" and indeed to any of the nouns that follow. This analysis suggests that a sequential assignment of each verb to the successive nouns in the opening words of s 6M is not the way the section was intended to work. Once this conclusion is reached, the problem of ambiguity raised by the appellants' arguments is presented in stark relief. If the verb "causes" can relate to the noun "disadvantage", the ambit of conduct forbidden by s 6M is potentially very large. Does the section then forbid the conduct of "[a]ny person who … causes ... disadvantage to any [other] person for or on account of … any evidence given by him or her before any Royal Commission"? The phrase "for or on account of" can be defined to circumvent such a broad operation of the section. But how is that phrase to be given a meaning that permits the express use of evidence given by a person before any Royal Commission in a way that potentially "causes … disadvantage" to that person yet does not involve an offence against the Royal Commissions Act in the terms in which s 6M expresses that offence?
The words "for or on account of" in s 6M, without more, define the answer. However, they do not explain when and why the answer applies. Hence, the grant of special leave to the appellants on this point in their appeal.
The litigation: The course of the proceedings that now bring a limited issue to this Court is described in the joint reasons[68]. I will not repeat any of this material. The appellants had wished to challenge both of the answers given in the Federal Court in respect of the questions isolated for separate decision by the primary judge. However, special leave to appeal was refused on the answer to the first question which concerned the suggested lack of power of APRA to proceed as it contemplated in relation to the individual appellants[69]. The answer given by the primary judge on this issue, confirmed by the Full Court, is not, therefore, before this Court. Our only concern is with the answer to the second separated question. This relates to the use made, and intended to be made, by APRA and its senior manager, Mr Godfrey, of the evidence given by X and Y before the HIH Royal Commission.
There can be no doubt that, unless this Court forbids it by reversing the answer given by the primary judge to the second question, it is the intention of Mr Godfrey to use the evidence given by X and Y before the Royal Commission in support of a presently proposed recommendation that APRA should disqualify X and Y under the Insurance Act 1973 (Cth) ("the Insurance Act"). That this is so is made plain in the correspondence addressed to X and Y upon which they each relied to establish that APRA and Mr Godfrey planned to cause disadvantage to them, relevantly, for or on account of evidence given by them before the HIH Royal Commission, reading that phrase in a broad causative sense.
The indicated use of the evidence: The essential foundation, relied on in this respect by X and Y, was correspondence addressed to each of them by which Mr Godfrey gave them notice that he had come to a "preliminary view" that each "should be disqualified from being or acting as the holder of a senior insurance role, pursuant to [s] 25A(1) of the Insurance Act". The letter of notification stated that this "preliminary view" had been reached by Mr Godfrey "[o]n the basis of the information referred to in this letter". That information, and the preliminary finding relating to it, were included in an attachment to the letter of notification by which Mr Godfrey afforded X and Y the opportunity to make submissions as to why APRA should not make a decision to disqualify them under s 25A(1) of the Insurance Act as tentatively proposed by him.
It is enough to say that, in the attachment to the letter, there are repeated and express statements referring to, and quoting from, the evidence given by each of X and Y to the HIH Royal Commission. Thus, in par 5 of the attachment relating to X, Mr Godfrey states that "[e]vidence provided to the HIH Royal Commission ... demonstrates the following:". There follow 41 subparagraphs, each one cross-referenced to the transcript of the HIH Royal Commission and to evidence recorded there on identified days before the Commission.
Many of the subparagraphs that follow begin with words to the effect, "In your oral evidence to the HIH Royal Commission". The subparagraphs referring to the oral evidence of the individual appellants sometimes summarise, and on other occasions, directly quote, what that appellant "told the Royal Commission" as to his understanding of the relationship between HIH and Z on issues of reinsurance. The document is full of statements such as "You gave oral evidence that ..."; "You told the Royal Commission that …"; "You also stated ..."; "In oral evidence to the Royal Commission you admitted that you were aware …"; "In oral evidence you admitted that when you drafted the treaty wordings, you were aware …"; and "In cross-examination during the Royal Commission, you denied …".
It is essentially on the basis of these documents, therefore, that X and Y contend that APRA and Mr Godfrey will, unless restrained, "cause ... disadvantage" to each of them, by way of proceeding to give effect to the "preliminary view" (as they submit) "for or on account of … evidence given by [each of them] before [the] Royal Commission".
In this sense, X and Y did not contest before this Court the right of APRA and Mr Godfrey to proceed to consider any action that they might take pursuant to the Insurance Act based on:

Anonymity of the parties: Before addressing the parties' arguments on the central issue in the appeal, I wish to say something about three preliminary questions, two of which are mentioned in the joint reasons[70].
First, as already noted, the names of the individual appellants (X and Y), and the German corporation of which they are officers (Z), were anonymised by order of the primary judge in the Federal Court. His Honour's order was made on 13 May 2005 and stated to be pursuant to the Federal Court of Australia Act 1976 (Cth)[71]. The truly exceptional circumstances under which such an order can be made may be understood when attention is addressed to the grounds for which the Parliament has expressly provided for the suppression or restriction of the publication of particular evidence or the name of a party or of a witness appearing in the Federal Court. The grounds stated in s 50 of that Act are limited to circumstances where such an order is "necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth"[72]. As the Federal Court explained in Australian Broadcasting Commission v Parish[73], "[o]pen justice is the underlying assumption of s 50". The suppression of names ought to be confined to cases in which disclosure "would prejudice the court's proper exercise of the function it was appointed to discharge, to do justice between the parties", or where disclosure "would destroy the subject‑matter of the proceedings and render them nugatory"[74]. A case in which the use of names would seriously impede or discourage access to the courts might be another instance in which anonymity would be justified according to the statutory formula. The present certainly does not appear to have been such a case.
I realise that the identification of the names of X and Y and of the corporation, Z, with which they are associated, might be embarrassing to all of them. I accept that, in contemporary times, with the ready availability of the internet, the disclosure of their identities and of the proceedings designed to prevent APRA and Mr Godfrey from taking the administrative steps foreshadowed, might do some harm to individual and corporate reputations.
Perhaps Australian judicial process should provide more ample protection to witnesses from the revelation of their names in situations where they have simply invoked, or become involved in, proceedings in the courts. For particular, but limited, purposes, specific legislation, federal[75] and State[76], has been enacted requiring the suppression of the identity of a witness or party. Additionally, out of their implied or "inherent" powers, Australian courts sometimes anonymise proceedings to protect from needless harm the identity of persons who become involved in court process.
However, every day, in our courts, parties and witnesses must disclose their names and identities, although this is doubtless often uncongenial and even damaging. It is part of the strong tradition of open justice that characterises the courts of this country[77].
When, on the return of these proceedings, I sought an explanation for the anonymity order made in this case, the only reason advanced was that the primary judge had made such an order and that, by consent, the order had been continued thereafter, including in this Court. Congenial arrangements of this kind should, in my view, take into close account the basic principle of the open administration of justice in the courts. The proliferation of instances where courts suppress the identity of parties and witnesses (without specific legislative warrant) is undesirable. The naming of X, Y and Z did not prejudice the security of the Commonwealth. Nor is it apparent to me why it was necessary to suppress their names "to prevent prejudice to the administration of justice". It may cause some prejudice to the parties, perhaps, but ordinarily the administration of justice is strengthened by openness and full disclosure.
In any case, there is an air of unreality in the suppression of the names of X, Y and Z in these proceedings[78]. Their names were not suppressed during the HIH Royal Commission. They appear in the records of that Commission, including those to which Mr Godfrey made explicit reference in his letters foreshadowing administrative steps under the Insurance Act.
No one before this Court wanted to engage in this debate. However, it is up to the courts themselves to defend the general principle of openness and transparency of proceedings. Judicial suppression creates suspicion and sometimes concern. It should ordinarily be kept to a strict minimum. The appellants had arguable legal points by which to defend their rights. They should normally be expected to wear the burden of any publicity that attaches to that endeavour.
Separated questions: This is yet another case where a great deal of interlocutory litigation has unfolded as a result of the separation of questions, answered in the course of substantive proceedings without finally resolving those proceedings.
It is not entirely clear, in the present instance, how the primary judge came to separate the two questions, as he did on 13 May 2005. It is recorded that they were separated "by consent"[79]. In earlier years, I was sympathetic to this procedure in the hope that it sometimes holds out that preliminary determinations of legal questions will resolve fundamental issues and, perhaps, save a great deal of court time in the process[80]. This may still be true in some cases. I do not deny the occasional utility of the procedure. However, the longer I observe litigation over separated questions, the more I am reinforced in the conclusion that the practice is commonly, or at least often, misguided, counter-productive and, ultimately, unduly expensive and burdensome to the courts and the parties alike[81]. It often seems to grow out of an inclination of parties and their advisers to postpone facing up to the irksome necessities of the trial.
There was an added reason, in the present case, why great care was needed before separating questions, however fundamental they might have seemed to the further prosecution of the proceedings. This was that the provisions of s 6M of the Royal Commissions Act are penal. If breached, they render a person potentially guilty of an indictable offence. Such an offence, by s 80 of the Constitution, carries an entitlement to trial by jury. This Court has said repeatedly that great care must be exercised before interlocutory challenges are permitted in such matters[82].
True it is that the proceedings brought by the appellants were civil in nature. They invoked s 39B of the Judiciary Act 1903 (Cth) to enliven the original jurisdiction of the Federal Court because they sought an injunction against Mr Godfrey, an officer of the Commonwealth[83]. However, the hypothesis at the heart of the appellants' contention on the second question separated by the primary judge was that Mr Godfrey was a person threatening to commit an indictable federal offence contrary to s 6M of the Royal Commissions Act. In the stated constitutional setting, special care was needed before separating that question and proceeding to make interlocutory findings and orders in relation to it. The subsequent chronicle of interlocutory appeals in these proceedings demonstrates, once again, the disadvantage of embarking on that course.
As no party challenged the course taken (and indeed all were complicit in it) I can do no more than to suggest, with respect, that it was an unwise course of action. Despite doubtless good intentions, it involved the parties and the community in expense and delay in hearings and appeals that the normal process of proceedings in the courts tends to reduce and confine.
Anticipatory orders and declarations: There is a third point. It concerns the possible special imprudence of embarking on these proceedings, given that what was involved was an attempt by the appellants to gain a declaration and an injunctive order in relation to the operation of s 6M of the Royal Commissions Act, a penal provision, designated as indictable and carrying significant consequences for those convicted of a breach.
An immediate question is presented as to whether a court, asked in advance of the commission of any such offence, would, as a matter of discretion, grant a remedy by way of injunction, in effect, to restrain what would otherwise be a breach of penal provisions of the Royal Commissions Act. Would a court do so by acting on an hypothesis (as invited by the parties) which might, or might not, be fulfilled by subsequent events? Would the provision of an injunction in such circumstances, and more particularly the answer to separated questions or the provision of a judicial declaration, amount, effectively, to the provision of advice on the operation of penal provisions in federal legislation? Could it be said that the letters addressed by Mr Godfrey to X and Y already evidenced a breach of the Royal Commissions Act, if the appellants' argument about the meaning of s 6M of that Act were correct?
Even those who, like myself, are more sympathetic to the facultative use of judicial declarations[84], hesitate where what is claimed is, in effect, an anticipatory declaration on whether specified conduct could involve an indictable federal offence. The strong tradition of requiring precise proof of such offences and the constitutional provision in Australia reserving judgment on that proof to the verdict of a jury, constitute particular reasons why, in this case, there were special grounds for caution before embarking on the course of proceedings that unfolded.
For example, it might have been possible, had the proceedings concluded before the primary judge, without interlocutory interruption, for him to have decided them by wholly ignoring the evidence of X and Y before the HIH Royal Commission. The primary judge may have sustained the course proposed by Mr Godfrey, based on other evidence unaffected by any evidence given by X or Y before the Royal Commission. The lesson of much litigation is that theoretical problems, of the kind which tend to be isolated for preliminary determination, and disjoined from a trial, disappear, or are avoided, in the way the trial typically proceeds to its conclusion.
I therefore agree with the joint reasons that there was a real question as to the procedure adopted in this case. However, I also agree that, no objection to that procedure having been raised in this Court, it is fruitless for us now to do more than to call attention to the imperfections in the procedure, but nonetheless to decide the appeal within the four corners in which it was argued.

A textual argument: If the appellants did not have an arguable construction of s 6M of the Royal Commissions Act, including as that section is read with s 6DD (referred to in the primary judge's second separated question), they probably would not have proceeded so far in the Australian judiciary. Thus, although their appeals were heard against interlocutory orders of the primary judge, they secured leave to appeal against his Honour's determinations to the Full Court[85]. Moreover, the appellants later obtained special leave to appeal to this Court.
The appellants' argument of error on the part of the Federal Court involved an appeal to a strict construction of s 6M of the Royal Commissions Act. Thus, they submitted that Mr Godfrey was a person intending to cause each of them disadvantage in the form of the administrative action that he was threatening, namely, the making of a recommendation to APRA that each of X and Y be disqualified from being a holder of a senior insurance role pursuant to s 25A(1) of the Insurance Act. In the global character that is now a feature of the insurance industry, it takes little imagination to infer that, although neither X nor Y is resident, employed or performing insurance functions in Australia, such a disqualification, if made by the Australian authority, would, at the least, cause disadvantage to persons such as X and Y. By inference, in an industry which depends heavily upon the reputation of insurance corporations and their officers for good faith, integrity and fair dealing, such a statutory finding and order, within a significant insurance market such as Australia, would need to be disclosed by X, Y and Z in various circumstances where disclosure was expressly required or impliedly expected.
The threatened action, at least if carried out, would not involve the use of "violence" or the infliction of "punishment" in the strict sense. But it would inferentially, at the least, cause "disadvantage" to a person so disqualified and thus engage the opening words of s 6M. Moreover, the repeated reference, contained in Mr Godfrey's letters to X and Y, to the evidence given by each of them before the Royal Commission, would seem to engage par (b) of s 6M, so long as the necessary link, envisaged by that section, is established. That link appears in the phrase "for or on account of". It must be "for or on account of ... any evidence" of that kind, that the disadvantage[86] is caused by Mr Godfrey to X or Y or either one of them.
In their submissions to this Court, the appellants argued that the reading in the Federal Court of the phrase "for or on account of" was overly constricted and inconsistent with the actual terms of the Royal Commissions Act. The appellants contested the distinction drawn in the Federal Court between action taken based on evidence before a Royal Commission itself, and action taken based on the facts that pre-existed the Royal Commission, but which were disclosed by that evidence. Not only did that distinction lack an explicit textual foundation. According to the appellants, it overlooked the particular force and forensic utility of admissions and confessions made in the course of evidence before a Royal Commission. The statutory embargo on the use of evidence given before the Royal Commission was emphatic. The appellants submitted that the linking phrase "for or on account of" meant nothing more than "caused by". They argued that this Court should give the phrase its ordinary natural meaning. The preposition "for" was related to (and apt for) the offence (in s 6M(a)), occasioned to a person for having appeared as a witness at all. It was also related to (and apt for) the offence in s 6M(c), occasioned to a person for having produced a document or thing under s 2 of the Act. The words "on account of" were more apt to the language of s 6M(b) which did not refer to an event, as such, but to the content of evidence given before the Royal Commission. If "on account of" the content of such evidence, a disadvantage were caused to the person who gave the evidence, that would be a breach of the section. No more was required. The offence was complete.
A contextual argument: The appellants also relied on matters of context in the Royal Commissions Act to support their interpretation. Thus, the differentiation between the offence, relevantly, of causing disadvantage to a person "for or on account of" having appeared as a witness and "for or on account of … any evidence given" was significant for the appellants because it made it plain that the Royal Commissions Act was protecting, in the latter phrase, the actual content of evidence given before a Royal Commission and not simply the fact that evidence was given (or a document produced). According to the appellants, the differentiation between the paragraphs of s 6M lent emphasis to the special status of the content of their evidence. That emphasis was designed to protect them from having disadvantage caused to them, by reason of that content, that is, "for or on account of" it. Because it would be an indictable offence to use the evidence as such, by necessary implication it was unavailable for such use. Its use was forbidden by the Act.
Another contextual argument pressed by the appellants involved a reference to s 6N of the Royal Commissions Act, enacted at the same time as s 6M was introduced[87]. That section provides specific penalties for employers who prejudice employees in the context of Royal Commissions:

There is a close similarity between the language of s 6M and of s 6N(1). However, there is also an important difference. Paragraph (b) in s 6N(1) refers only to the fact of having given evidence. It does not refer to the content of the evidence, as par (b) in s 6M does. The appellants submitted that the juxtaposition of the language of the two paragraphs lent emphasis to the breadth of the deliberate protection for the content of the evidence of a witness before a Royal Commission under s 6M. Thus, it was not, as such, the fact of giving evidence (probably encompassed by par (a)) that was protected. It was the actual evidence given that engaged the protection of s 6M(b). The appellants argued that the judges of the Federal Court had failed to give proper attention to this distinct expression in s 6M(b). They asked this Court to do so.
A policy argument: Ultimately, the appellants embraced the suggestion that the distinction for which they argued was supported by a policy that lay behind the protection of evidence given before a Royal Commission. According to this argument, Royal Commissions, although designed for the important object of arriving at the truth about conflicting factual matters (and deciding the better view of conflicting issues of opinion, social policy and future legislation), enlist onerous procedures for the ultimate purpose of serving the public interest. The coercive powers afforded to Royal Commissions include the power to summon witnesses and to take evidence on oath or affirmation[88]; to require witnesses to attend and produce documents[89]; to permit the issue of extensive search warrants[90]; and to punish persons who refuse to be sworn, make an affirmation or answer questions[91]. The appellants therefore suggested that the protection afforded by s 6M(b) of the Royal Commissions Act was in the nature of a "trade-off". It amounted, in effect, to a counter-balancing protection to a person obliged to give evidence in respect of any later use that might be made of that evidence and which might cause that person disadvantage.
In this way, to enhance the achievement of the objects of a Royal Commission and to further the public interest, individuals caught up in the coercive requirements of such a Commission, in respect of the evidence they gave, would be protected and thus encouraged to speak fully and openly without fear of damage, loss or disadvantage as an immediate consequence. They might be caused damage by other evidence revealed in the course of the Royal Commission. They might be caused damage by the evidence of other persons. They might be damaged by the findings, conclusions and recommendations of the Royal Commission itself. But they would not be caused damage from their own mouths by reason of ("for or on account of") the actual evidence which they themselves gave. That evidence would be immured from causing them damage, loss or disadvantage because of the greater public good of procuring their honest testimony before the Royal Commission.
An argument of approach: Finally, the appellants could point to the inherent arguability of most cases of statutory construction that reach a court such as this[92]. The defects and ambiguities of the language of s 6M of the Royal Commissions Act were candidly, and properly, conceded by the Solicitor-General. In such circumstances, the appellants urged this Court to avoid an artificial construction that would impose a non-textual, restrictive meaning on the phrase "for or on account of". They submitted that the fundamental duty of the Court was to give meaning to the legislative command according to the language in which the command was expressed[93]. Legislative history, and references to the pre-existing common law, may not deflect a court from its duty in resolving an issue of statutory construction, which is always ultimately a text-based activity[94]. Where the command is stated in a legislative provision of the Federal Parliament, the Court's duty is to give effect to that provision, primarily by reference to the language of the Act. If the language yields a conclusion that is considered undesirable, the Act could be changed, as the Royal Commissions Act has often and recently been[95].

It is true that s 6DD is addressed to the admissibility of evidence in a court. To this extent, it is not immediately relevant to the intended use of the evidence given before the Royal Commission which the appellants are contesting in this appeal. Their contest is addressed to the use of the evidence of X and Y not in a court but in an administrative decision made ultimately by APRA on the basis of a recommendation made to it by its officer, Mr Godfrey.
Nevertheless, s 6DD, enacted by the 1912 Act at the same time as s 6M, is highly relevant to the meaning to be given to s 6M(b). If, as the appellants submitted, s 6M(b) threw a cloak of unuseability over "any evidence given by [X and Y] before [the] Royal Commission", s 6DD of the Royal Commissions Act would be substantially redundant. There would be no need for the more specific and finely tuned provisions of s 6DD(1)(a). Any such "statement or disclosure made by the person in the course of giving evidence" would amount to "evidence given by him or her before any Royal Commission". On the appellants' proposed meaning, to the extent that such evidence caused disadvantage (and was objected to), it was already inadmissible because the proffering of it would constitute the commission of an indictable offence. It either would not be proffered or, if proffered, would be rejected by a court as inadmissible.
If s 6M is taken to be limited to punishing retaliation or victimisation against a person for giving evidence before a Royal Commission, that leaves substantive work for s 6DD to perform. Such a construction is necessary to avoid a legislative redundancy. It is consistent with the longstanding principle that all statutory provisions are prima facie significant and taken to have a field of operation[103]. Indeed, it is "improbable that the framers of [the Royal Commissions Act] could have intended to insert a provision which has virtually no practical effect"[104]. Such a construction is also consistent with the presumption that, where the Parliament has enacted a wide and general provision (such as s 6M(b)), not limited to the admissibility of evidence in a court, such a provision should not take priority over a narrower and more specific provision (like s 6DD)[105].
This construction provides a more nuanced and limited prohibition on the later use of witness statements and evidence or documents before Royal Commissions. It affords the "trade-off" of which the appellants spoke. But it is one confined to court proceedings. It is not addressed to administrative decisions, such as those made by Mr Godfrey or APRA.
Avoiding absurd constructions: In addition to the foregoing, there are at least two reasons of principle or policy why the ambit of protection argued for by the appellants should be rejected:

X v Australian Prudential Regulation Authority

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