December 2021 Modernising the regulatory framework The Commission also pointed to a need to monitor whether the development of the law, as it relates to damages in anti-discrimination and harassment matters, continues to reflect community perceptions and the evolving understanding of the harm caused by sexual harassment. The Commission recommended that further research be conducted on damages in sexual harassment matters and whether this reflects contemporary understandings of the nature, drivers, harms and impacts of sexual harassment, and this research should inform judicial education and training.102 Subsequently, the Government agreed to this recommendation and is commissioning the research.103 The Commission considers that because there are so few unlawful discrimination matters that are litigated, and even fewer that are appellate decisions, the development of case law and precedent is somewhat sporadic. As considered in Chapter 4, section 6, this issue may be assisted by the reintroduction of an intermediate adjudicative process into the federal discrimination law system. Additionally, as suggested above, proposed research could also be used to inform judicial training. Further guidance materials developed by the Commission could also assist courts in their decision-making. (ii) Remedies at the conciliation stage of the process Information about the outcomes of conciliation is extremely restricted. This in part reflects the obligations on agencies such as the AHRC to ensure confidentiality of the process and its outcomes (see discussion of secrecy provisions in section 3.2 above). The Commission publishes de-identified information about complaints through its conciliation register to provide guidance on the types of outcomes that have been mutually agreed between parties in conciliations. The scope of this information is constrained to ensure that a respondent or matter cannot be identified from published information being able to be matched with information already in the public domain (for example, where a matter has been high profile or the identity of a respondent or complainant would become apparent by referring to the factual situation in the complaint). In section 3.2 above the Commission has proposed reform to the secrecy provisions of the AHRC Act to ensure that information can be disclosed for educational and awareness purposes. This should be accompanied by further research examining the range of outcomes mutually agreed through the conciliation process. Such research should be able to identify a range of matters that would be of public interest, including: • The suite of outcomes commonly agreed in conciliations • The quantum of financial outcomes agreed • Outcomes commonly agreed that can result in systemic changes in respondent organisations (which may be beneficial for other organisations, who have not been subject to complaints, to build into their business operations proactively) • Trends identifiable from the complaint process: such as timeframes, the level of legal representation in matters for both complainants and respondents, the impact of representation on timeframes and outcomes. 114 FREE AND EQUAL An Australian Conversation on Human Rights