Mere embarrassment or distress is not sufficient to justify a non-publication order even on the lower standard of whether it is desirable under s.593(3) or s.594(1) of the FW Act.

Sexual assault communications privilege (ss19A-19M of Evidence Act 1906 (WA)) does not apply in civil proceedings where no criminal proceedings have been commenced; however, the Commission may exercise discretion to exclude or limit disclosure of protected communications having regard to underlying principles including dangers to victim recovery, privacy, safety, and retribution risks, balanced against legitimate forensic purpose and probative value.

Non-attendance at a Member Assisted Conciliation conference, although not deliberate, may be unreasonable, but the fact that the person was represented at the conference and not simply ignoring the process established by the Commission are potentially relevant mitigating factors.

The maintenance of confidentiality around settlement negotiations is an important and often critical aspect of a successful resolution, and there is a significant public interest in the settlement of proceedings, particularly at an early stage.

Where mediation is imminent and a party believes keeping the matter confidential will increase the chances of settlement, policy considerations support the making of a suppression or non-publication order even before mediation commences, on the basis that continued maintenance of confidentiality will deleteriously affect the prospects of the mediation succeeding.

Conciliation conferences are private and confidential, and are conducted on a without prejudice basis. The purpose of this is to enable parties to explore potential settlement options without concern of any offers or concessions made during the conference being used against them if the matter proceeds. Consequently, it is impermissible for a party to rely on what was said in conference in support of an application unless a recognised exception to confidentiality applies.

An interim non-publication order under s.594(1)(d) may be appropriate pending appeal where disclosure would render the appeal nugatory or cause harm sought to be avoided by the appeal, particularly where an appeal seeks to maintain confidentiality of information.

Open justice is critical to public confidence in the Commission's integrity and independence; the Commission's processes should be conducted in a transparent manner and exposed to public scrutiny similar to court proceedings.

Mere embarrassment, distress, or reputational harm is not sufficient to justify a non-publication order; private interests must be sacrificed to the greater public interest in adhering to an open system of justice.

The basis and justification for open justice is significant in the context of the Commission's discretion under s.594(1); the Commission should conduct proceedings in a transparent manner to maintain public confidence in its integrity and independence.

Confidential information provided to an RTAG subcommittee can be protected through appropriate procedures such as the provision of undertakings, and the RTAG does not have power to compel production of documents or information.

There is a very significant public interest in the settlement of proceedings, particularly at an early stage, and the maintenance of confidentiality around the negotiations leading to settlement is important and critical to a successful resolution.