Modernising the regulatory framework December 2021 The value of conciliation, and ADR as empowering, was acknowledged in many submissions. It has also been described as ‘useful, informal and cost-effective’.50 Criticism of the conciliation model in federal discrimination law is not about the processes themselves per se. Instead, it is about the over-reliance on this as a regulatory tool – namely, that it is not accompanied by other measures of increasing seriousness where matters are not able to be resolved, and that it does not assist in the development of a body of rules. This absence of regulatory approaches is seen as undermining the overall effectiveness of discrimination law. As Associate Professor Dominique Allen commented, relying heavily on addressing discrimination through a confidential dispute resolution procedure, along with an agency that can only encourage voluntary compliance, is inadequate.51 Associate Professor Belinda Smith similarly observed that The least intrusive forms of intervention could be used effectively as the primary and usual regulatory tools, so long as the regulator had access to more serious sanctions (ie a big stick) to be held mostly in reserve for extreme cases of irrational actors. In essence, the ‘notion of responsiveness is the idea that escalating forms of government intervention will reinforce and help constitute less intrusive and delegated forms of market regulation.’52 The Australian Chamber of Commerce and Industry supported the kinds of persuasive powers the Commission has, as important non-regulatory measures, but also supported ‘recourse to regulation where these non-regulatory measures have failed to achieve policy objectives’.53 3.2 Information about outcomes of complaints A further matter that is seen to limit the effectiveness of federal discrimination law is the lack of information about the outcomes of conciliation. Various legal provisions operate to limit public awareness about the typical outcomes from conciliation processes, the remedies that usually result and the types of issues that most commonly arise. The Commission considers that there is a need for: • Review or amendment of the secrecy provisions in s 49 of the AHRC Act. • Guidance on the appropriateness of non-disclosure agreements and confidentiality clauses in settlements across all unlawful discrimination matters. FREE AND EQUAL An Australian Conversation on Human Rights 105