Modernising the regulatory framework December 2021 The Commission currently provides public information in a de-identified form about issues raised in complaints and outcomes obtained through conciliation. The Commission has developed a conciliation register that provides de-identified summaries of selected conciliated complaints and de-identified case studies are published in the Commission’s annual reports, on its webpage and in policy documents. The Commission considers that there is potential to consider how much further information can be provided, while at the same time respecting the obligations of confidentiality of ADR processes (including maintaining fidelity to the practice standards that apply to accredited mediators). If the secrecy provision were removed, this consideration would operate under privacy principles, rather than the shadow of criminal penalties. (b) Confidentiality and information about outcomes Confidentiality is ‘an integral part of the individual enforcement model’ of discrimination laws.61 However, a consequence of the confidentiality of complaint handling is that there is limited information about the outcomes of complaints – ‘the community at large is left unaware of the extent to which discrimination remains a problem and how it is (or is not) being addressed’.62 Allen and Blackham argue that the adverse impact of confidentiality in the enforcement of discrimination law ‘is amplified by the fact that the agencies release very little information about the outcomes obtained at settlement, the nature of discrimination claims, or the prevalence of discrimination in the community, other than statistical complaints data’.63 There are good reasons, argue Allen and Blackham, for embedding confidentiality in the enforcement process: It allows parties to negotiate in conciliation without fear that what was said could be used in future litigation. It therefore creates a ‘[safe] haven’ for both parties, who can ‘express emotions’ and communicate their ‘true interests’ without fear of public judgment. Confidentiality may encourage people to lodge claims and encourage respondents to participate in resolving them. It also protects both parties from potential reputational damage from being involved in a discrimination claim, particularly the risk that media might show an interest in the claim if it proceeds to court. … Thus, confidentiality has significant benefits in facilitating the efficient resolution of discrimination complaints, and can benefit both claimants and respondents.64 However, there are drawbacks. Allen and Blackham state that ‘[k]eeping both processes and outcomes confidential means that there is very limited guidance regarding what claimants and respondents can expect from the law, including in relation to remedies (both monetary and systemic)’.65 This is exacerbated by the lack of authoritative guidance materials. FREE AND EQUAL An Australian Conversation on Human Rights 107