Penalty: $1,000, or imprisonment for 1 year.'
58 A new s 2(3A) was also inserted into the Royal Commissions Act by the 2001 Act, empowering a Commission to require a person upon whom a written notice was served to produce a document or thing specified in the notice to a person, and at the time and place, specified in the notice, rather than to a Commissioner at a formal hearing. Section 6A of the Royal Commissions Act, which provided that a person may not refuse or fail to answer a question or produce a document or thing pursuant to a summons on the ground that it might tend to incriminate him or her, was amplified to ensure that it also applied to the production of documents or things pursuant to a notice under the new s 2(3A) as well.
59 In relation to, inter alia, the new s 6A, a Supplementary Explanatory Memorandum was tabled in the Senate on 27 September 2001. The Supplementary Explanatory Memorandum included an observation upon the new s 6A and new s 6DD in the following terms:-
'The new section [s 6A] does not compel persons to provide such information where proceedings in respect of the penalty in question are on foot. This offers some protection against the potentially adverse consequences of providing such information. The "use immunity" provision in section 6DD offers further protection by preventing the admission of certain information in criminal or civil proceedings, which would include civil penalty proceedings.
…
At present, section 6DD provides that a statement or disclosure made by a witness in the course of giving evidence is not admissible against that witness in any civil or criminal proceedings (except proceedings for an offence against the Act). This provision offers some protection to witnesses who are compelled to provide information which might tend to incriminate them in the course of giving evidence before a Commission. The item repeals and replaces section 6DD to provide that evidence of the fact that a person has produced a document or thing to a Royal Commission, whether pursuant to a summons, notice or a requirement imposed during the course of a hearing, is also inadmissible against that person in any civil or criminal proceedings.' [Emphasis added]
60 In relation to the new s 6M and the new s 6N(1), the Supplementary Explanatory Memorandum included the following:-
'This item … repeals and replaces 6M so that it is an offence to injure a person on account of that person producing documents or things pursuant to a notice under new subsection 2(3A), as well as on account of that person having appeared as a witness or on account of any evidence given by that person. The penalty in section 6M will remain the same.
…
This item … repeals and replaces 6N of the Act so that it is also an offence for an employer to dismiss or prejudice an employee on account of the employee having producing (sic) documents or things pursuant to a notice under new subsection 2(3A), as well as on account of the employee having appeared as a witness or having given evidence. The penalty in section 6N will remain the same.' [Emphasis added]
61 Thus, the production of documents was addressed by the 2001 Act. However, the differences in structure of ss 6M and 6N(1) were preserved. That is to say, the whole of s 6N(1) utilises the active voice, having broken down the proscribed reasons into three paragraphs. The preamble utilises a gerund, which governs the past participle of three different verbs, namely, 'appeared', 'given' and 'produced'. On the other hand, s 6M, while it breaks down the proscribed reasons into three paragraphs, utilises the passive voice in paragraph s 6M(b) and the active voice and gerund structure in paragraphs (a) and (c), that is used in s 6N.
62 Both s 6M and s 6N are directed to the same object. That object is to criminalise conduct directed towards harming a person 'for or on account of' that person's having done something in relation to a Royal Commission. Section 6N, of course, applies only where the person is an employee of the person who causes the harm, being harm limited to that arising out of the relationship of employer and employee.
63 The prohibited conduct under s 6M and under s 6N will be punishable if it is engaged in for one of three reasons. In the case of s 6M the reasons are:
(a) for or on account of the person having appeared as a witness before any Royal Commission;
(b) for or on account of any evidence given by him or her before any Royal Commission;
(c) for or on account of the person having produced a document or thing pursuant to a summons requirement or notice under s 2.
Under s 6N(1) the reasons are:
(a) for or on account of the employee having appeared as a witness before a Royal Commission;
(b) for or on account of the employee having given evidence before a Royal Commission;
(c) for or on account of the employee having produced a document or thing pursuant to a summons, requirement or notice under s 2.
64 The question now raised is concerned with the meaning to be given to the emphasised words of paragraph 6M(b). Notwithstanding the change from the structure of s 11 of the 1907 Act when enacting s 6N, it is difficult to see any rationale for attributing different meanings to the reasons for conduct that is proscribed.
65 In order to conform with s 6N, the relevant reason in s 6M would be formulated as follows:
'for or on account of the person having given evidence before a Royal Commission.'
The primary judge construed the paragraph as follows:
'for or on account of the person having given evidence on any particular matter before any Royal Commission.'
66 APRA and Mr Godfrey would do slightly less violence to the paragraph and would construe it as follows:
'for or on account of any evidence having been given by him or her before any Royal Commission.'
[emphasis added]
An advantage of the construction advanced by APRA and Mr Godfrey is that it preserves the passive voice in paragraph 6M(b), whereas the construction adopted by the primary judge converts paragraph (b) into the active voice, conformably with s 6N.
67 The preamble of s 6M utilises three verbs, each with five objects. As originally enacted, it used a fourth verb, namely, 'procures'. The omission of that verb does not appear to be presently relevant. The preamble has syntactical difficulties. Some of the five objects do not sit happily with one or other of the verbs.
68 Thus, it is not idiomatic to speak of a person inflicting damage, loss or disadvantage to any person. One might speak of a person inflicting punishment to any person. Further, one might say that a person 'uses violence to any person' but one would not say, idiomatically, that a person 'uses damage, loss or disadvantage to any person'. On the other hand, one might idiomatically say that a person 'causes violence, punishment, damage, loss or disadvantage to any person'.
69 No defences have been filed in the proceeding. However, APRA and Mr Godfrey appear to have accepted, for the purposes of the proceedings, that writing a letter such as the Show Cause Letters, and taking steps under s 25A(1) of the Insurance Act on the basis outlined in the Show Cause Letters, is capable of constituting conduct within the preamble of s 6M, as pleaded. The dispute concerns the extent to which the engaging in of that conduct is for the reason referred to in paragraph 6M(b), namely, for or on account of any evidence given by X or Y before the P Royal Commission.
70 Taken literally, the X Show Cause Letter might be regarded as offending s 6M. That is to say, paragraph 9 says 'Your conduct as set out above is evidence that you are not a fit and proper person to be or to act as the holder of a senior insurance role'. The greater part of the conduct that is set out is conduct consisting of telling the Royal Commission something, stating something to the Royal Commission, giving oral evidence to the Royal Commission and agreeing with counsel assisting the Royal Commission. If the X Show Cause Letter, properly construed, is an indication that action is being taken or contemplated because X did those things before the Royal Commission, one could conclude that APRA or Mr Godfrey is causing damage, loss or disadvantage to X for or on account of the evidence given by X before the Royal Commission.
71 However, the X Show Cause Letter should not be so construed. Paragraph 5 of Attachment B to that letter begins with the preamble that 'Evidence provided to the P Royal Commission demonstrates the following'. The introductory words to the various paragraphs that follow that preamble do no more than repeat the source of information from which Mr Godfrey, as the author of Attachment B, has concluded that certain conduct was engaged in by X.
72 Paragraph 9 of Attachment B is not a statement that the conduct of X, in telling the Royal Commission about the transaction with P, is evidence that X is not a fit and proper person. Paragraph 9 is a statement that the involvement of X in relation to the transaction is evidence that he is not a fit and proper person. The evidence given to the P Royal Commission is no more than the source of Mr Godfrey's knowledge of X's involvement in the transaction.
73 The appellants accept that the evidence given to the P Royal Commission by X and Y may be considered by APRA to undertake such investigations as it is empowered to do, but say that the actual words of X and Y spoken to the P Royal Commission cannot be used to their disadvantage. Such a construction, they say, would enable evidence given in a Royal Commission to be available for authorities to use subsequently in appropriate ways, whilst providing the necessary and proper protection to witnesses to enable the intended purpose of s 6M to be achieved, namely, to ensure that the witnesses will give evidence truthfully without fear of reprisal.
74 The primary judge construed s 6M(b) as being concerned with causing violence, punishment, damage, loss or disadvantage for or on account of a person's having given evidence on a particular topic. His Honour considered that the expression 'any evidence given by him or her before any Royal Commission' signifies, not the underlying facts of which evidence was given, but the act of giving evidence on a particular subject matter. That is distinct from 'having appeared as a witness before any Royal Commission' as referred to in paragraph 6M(a). That construction would render paragraph 6M(b) consistent with paragraph 6M(a) and 6M(c). It would be odd if authorities or regulators could rely on pre-existing documents or things produced by a person to a Royal Commission, as a basis for administrative decision making, yet could not rely on pre-existing facts and events of which the person testified before the Royal Commission, for the same purpose.
75 Section 6DD is part of the scheme inserted by the 1912 Act. Section 6DD protects a witness from the consequences of giving evidence, to the extent that a statement or disclosure made in the course of giving evidence is not admissible against that person in any civil or criminal proceeding in any court of the Commonwealth, of a State, or of a Territory. However, there is no protection equivalent to s 6DD in relation to administrative decision making. There is nothing that expressly prohibits a statement or a disclosure made by a person in the course of giving evidence before a Royal Commission to be taken into account as an admission, for the purposes of making an administrative decision, such as a disqualification under s 25A(1) of the Insurance Act. That distinction flavours the extent of the operation of s 6M. That is to say, it indicates that s 6M is directed to protecting a witness from detriment by reason of having given evidence about particular matters but is not intended to protect a witness from detriment by reason of the witness having admitted the pre-existing facts by giving such evidence.
76 The X Show Cause Letter and Attachment B thereto indicate that Mr Godfrey proposes to recommend to the appropriate delegate of APRA that X be disqualified pursuant to s 25A. He does not propose to do that by reason of the fact that X gave particular evidence before the Royal Commission; rather, he proposes to do so because of the facts about which X gave evidence to the Royal Commission. It may be that the only evidence that Mr Godfrey has of those facts is the evidence given by X before the Royal Commission. However, having regard to that evidence, in concluding that the facts have been established, is not doing something for or on account of any evidence given by X before the Royal Commission. If Mr Godfrey is causing damage, loss or disadvantage to X, it is for or on account of the facts, evidence of which was given by X before the Royal Commission, not for or on account of X's evidence.
77 It follows that, if Mr Godfrey or APRA can be said to cause damage, loss or disadvantage to X or Y by sending the Show Cause Letters, inviting them to make submissions as to why APRA should not make a decision to disqualify them under s 25A(1), or by making such a decision, on the basis described in the Show Cause Letters, they are not doing so for or on account of evidence given by X or Y before the Royal Commission within s 6M(b). That is to say, there would be no contravention of that provision. The primary judge did not err in concluding that the second preliminary question should be answered 'no'.
78 As indicated above, even if the answer to the question were yes, that would not necessarily be an end of the matter, depending upon the intendment of the second question. The exposure of APRA, or a delegate of APRA, to a penalty for a contravention of s 6M would not necessarily prevent APRA or its delegate from being satisfied, on the basis of, inter alia, evidence given by X or Y at the P Royal Commission, that he was not a fit and proper person to be, or act as, someone referred to in s 24(1) of the Insurance Act. However, that question does not arise. Not do we need to consider the questions (which were not debated) as to the proper construction of the powers of APRA, the inter-relationship of the two Acts and the relevant sections of the Criminal Code Act 1995 (Cth), including the place of any defences to alleged breaches of s 6M founded on a statutory authority or bona fide exercise of public powers.
79 The answer given to the second preliminary question by the primary judge was correct. Insofar as the appeals relate to that answer, the appeals should be dismissed.