PRACTICE AND PROCEDURE - application for confidentiality orders over identity of Applicant and witnesses - compensation claims for psychological injury - unreliable evidence - applicable principles - circumstances of the parties - assertion of harm if order not made - risk of harm not supported by relevant material of probative value - embarrassment, shame or humiliation not sufficient - risk does not outweigh principles of open justice - application refused

Administrative Review Tribunal Act 2024 (Cth), ss 9, 70, 71

Andrzejewski and Secretary, Department of Industry, Science and Resources (Practice and Procedure) [2025] ARTA 223

Australian Media and Communications Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7

Hanieh and Tax Practitioners Board [2024] AATA 3251, [43]-[44].

Kaplan v Victoria [2022] FCA 590

King Educational Services Pty Ltd v The Chief Executive Officer of the Australian Skills Quality Authority (No.2) [2021] FCA 183

WEQ v Medical Board of Australia [2021] VSCA 343

1. Nazmin Asraf applied for review of Australia and New Zealand Banking Group Pty Ltd (ANZ) decisions refusing her claims for compensation in respect of the effects of a psychological injury attributable to an incident in the course of her employment for which liability was accepted.
2. The parties were legally represented in the resulting proceedings.
3. The applications were heard on 24, 25, 26, 27 February 2025, and 10 April 2025.
4. No application was made for confidentiality orders under s 69 or s 70 of the Administrative Review Tribunal Act 2024 (Act) prior to or during the hearing.
5. To a very substantial degree, Mrs Asraf's claims turn on the accuracy and reliability of evidence and accounts she has given of psychological symptoms and functional effects she attributes to an incident in her employment on 30 August 2021. Despite initially accepting liability to pay compensation in respect of the injury Mrs Asraf claimed, in these proceedings ANZ contests the veracity of her claims and her evidence.
6. In consideration of these matters, the Tribunal sought the views of the parties in respect of confidentiality orders.
7. In the result, on 26 May 2025, Mrs Asraf's legal representatives applied for orders under s 70 of the Act to prevent publication of information tending to reveal her identity and the identity of witnesses. Relying on s 71(2)(d)(ii) of the Act, Mrs Asraf alleged her mental health might be harmed should her identity and the identity of witnesses be published. No supporting evidence was adduced, but reliance was placed on Mrs Asraf's evidence and the evidence of family members in respect of ongoing psychological symptoms and perceived threats, and the evidence of medical (including expert) witnesses in respect of her mental health.
8. Mrs Asraf draws support from s 4.2 and s 5.3 of the Tribunal's Publication of Decisions Policy (Policy), issued on 11 December 2024:

4.2 Generally, a Tribunal member may make a direction by order under section 70 of the ART Act that a decision is not to be published if satisfied, having regard to the considerations in section 71(2), that in the circumstances of the case the harm arising from the publication of the decision outweighs the public interest in publishing the decision. > > 5.3 Similar to paragraph 4.2, a Tribunal member may generally make such an order if satisfied, having regard to the considerations in section 71(2), that in the circumstances of the case the harm arising from the publication of the information outweighs the public interest in publishing the information. > > The Practice Directions may also make provision for confidentiality orders.

9. ANZ contends there is insufficient evidence on which to make an order under s 70. ANZ asserts it will suffer prejudice if an order is made at this late stage of the proceedings, well after a public hearing. In ANZ's submission, cogent evidence is required to justify the order sought and, absent such evidence, there is no justification for such an order to be made.
10. In order to make an order under s 70, the Tribunal must have regard to the matters set out in s 71(2):

(2) In considering whether to make an order under subsection 69(3) or section 70 in relation to a proceeding, the Tribunal must have regard to the following: > > (a) the principle that it is desirable that hearings of proceedings in the Tribunal are held in public; > > (b) the principle that it is desirable that evidence given before the Tribunal is made available to the public; > > (c) the principle that it is desirable that evidence given before the Tribunal and the contents of documents given to the Tribunal are made available to all the parties to the proceeding; > > (d) any reasons in favour of making an order, including the following: > > (i) in any case - the circumstances of the parties to the proceeding and other persons connected to the proceeding; > > (ii) in any case - the harm (if any) that is likely to occur to a person if the order is not made; > > (iii) in relation to an order under section 70 - the confidential nature (if any) of the information; > > (e) any other matters that the Tribunal considers relevant.

11. As can be seen, the relevant principles must be weighed against any reasons in favour of making an order under s 70, and all relevant matters must be considered.
12. The Policy is a further expression of the discretion s 70 confers which makes specific reference to the requirement for satisfaction in the particular circumstances of the case that the harm arising from the publication of the information outweighs the public interest in it being published and the evidence before the Tribunal being public.
13. Satisfaction requires relevant material of sufficient probative value to support reasons which justify the order sought. This turns on satisfaction the particular circumstances of the Applicant (and the case), and the risk of harm should an order not be made, outweigh the principle that it is desirable for the Tribunal hearing and its decision in the particular case, in consideration of the evidence given, to be public.
14. The conception of 'harm' in this context refers to the likelihood of harm to the person if the order is not made. In other words, it is a prospective consideration. Likelihood or risk of harm is somewhat chameleon-like in that it is inevitably coloured by the particular circumstances of the person and the case.
15. In this case, Mrs Asraf's circumstances include the alleged psychological symptoms and the psychiatric disorder she (and the doctors who treated her) attributes to the incident in her employment on 30 August 2021. Instrumental in these symptoms are alleged perceptions she described, including perceived threats to herself and her family, perceptions of being followed and watched, and alleged 'flashbacks'. There is no independent evidence the bank customer who was involved in the incident on 30 August 2021 actually made threats against Mrs Asraf or members of her family, or that this person has personal information about Mrs Asraf or that he has followed her.
16. The controversial circumstances of the case include that Mrs Asraf has not been entirely frank about her perceptions, symptoms and circumstances following the 30 August 2021 incident. There is some evidence she does not suffer from post-traumatic stress disorder, or any other psychiatric disorder, and her claims are affected by malingering. The assertion of likely harm to her mental health must be considered in this context: if she does not suffer from a mental illness, the likelihood of harm to her mental health should the order not be made is substantially reduced.
17. In all likelihood, should this adverse information about Mrs Asraf be made public, she might experience embarrassment, shame or humiliation. This might be sharpened by the concern she expressed about protecting her family's reputation or standing in their community. I accept this might lead to some harm. The threshold is whether the risk of harm outweighs the principles set out in s 71(2)(a), (b) and (c).
18. In previous cases, the risk of embarrassment, shame or humiliation has not been considered sufficient to outweigh the public interest in open justice,[1] which is given expression in the Tribunal's statutory objectives in s 9 of the Act:

The Tribunal must pursue the objective of providing an independent mechanism of review that: > > (a) is fair and just; and > > (b) ensures that applications to the Tribunal are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits; and > > (c) is accessible and responsive to the diverse needs of parties to proceedings; and > > (d) improves the transparency and quality of government decision‑making; and > > (e) promotes public trust and confidence in the Tribunal.

19. ANZ asserts making an order under s 70 now, well after the conclusion of the public hearing, might create unjust consequences, including in respect of hypothetical investigations by government agencies. In ANZ's submission, it might be put to significant work, anonymising thousands of pages of material in its holdings and briefing staff with legitimate knowledge of the public proceedings whose communications might be affected by such an order.
20. ANZ's submissions on this point are largely speculative and lacking relevant support. The point of principle drawn from King Educational Services Pty Ltd v The Chief Executive Officer of the Australian Skills Quality Authority (No.2)[2] must be considered in its correct context. Wheelahan J was dealing with the consequences of retrospective Tribunal orders staying implementation of a non-renewal of registration decision under the Education Services for Overseas Students Act 2000 (Cth). The consequences of retrospectivity in that context are not directly on point when considering prospective non-publication orders under s 70 of the Act, which have a very different character and effect.
21. On balance, I am not persuaded Mrs Asraf's reasons in favour of making the order to supress her identity and the identity of witnesses outweigh the principle that it is desirable for the evidence before the Tribunal to be public. Mrs Asraf's family and domestic circumstances are instrumental in the claims she has made. Exposing the evidence on which her claims rest to public scrutiny is an important element of the Tribunal's statutory objective to provide a mechanism of review which is fair, just and responsive to the needs of the parties, and which improves the transparency of decision making and promotes trust and public confidence in the Tribunal.
22. For these reasons, Mrs Asraf's application for orders to supress her identity and the identity of witnesses is refused.

24, 25, 26, 27 February 2025, and 10 April 2025

[1] Kaplan v Victoria [2022] FCA 590, [16]-[21]; WEQ v Medical Board of Australia [2021] VSCA 343, [69]-[72]; Australian Media and Communications Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7, [33]; Andrzejewski and Secretary, Department of Industry, Science and Resources (Practice and Procedure) [2025] ARTA 223, [19]; Hanieh and Tax Practitioners Board [2024] AATA 3251, [43]-[44].

[2] [2021] FCA 183.