UNDER WRAPS: SECRECY, CONFIDENTIALITY AND THE ENFORCEMENT OF EQUALITY LAW IN AUSTRALIA AND THE UNITED KINGDOM.

• Date: 01 December 2019
• Author: Allen, Dominique

I Introduction II The Role of Confidentiality in the Enforcement of Equality Law A Confidentiality and Conciliation 1 The United Kingdom 2 Australia B Prevalence of Confidentiality in Settlement Agreements in Victoria III Addressing the Risks of Confidentiality through the Release of Data A Information Published by Statutory Agencies about Equality Claims B Statutory Limits on the Publication of Information 1 Australia 2 The United Kingdom IV Tensions between Confidentiality and Transparency in Equality Law Enforcement A Competing Drivers and Drawbacks of Confidentiality B Open Justice and Confidentiality of Enforcement V Striking a Better Balance between Transparency and Confidentiality VI Conclusion I INTRODUCTION

Confidentiality has become an integral part of the individual enforcement model for equality law in Australia and the United Kingdom. This is largely due to the opportunities available to settle outside court processes and the desire by parties to avoid litigation. Alternative dispute resolution ('ADR') is used extensively to resolve claims in both jurisdictions and, in both, most discrimination claims settle with very few reaching an open court hearing. (1) The discussions between the parties during ADR, and often any procured settlement terms, are confidential. Contrary to the focus on openness and transparency in the courts generally, confidentiality is ingrained within equality law. The problem with this state of affairs is that the community at large in both countries is left unaware of the extent to which discrimination remains a problem and how it is (or is not) being addressed.

In this article, we consider the role and utility of confidentiality in equality law in Australia and the UK. We scrutinise the ways confidentiality is embedded in the enforcement, process, and outcomes of equality law, including via an examination of statutory provisions in each jurisdiction and whether they, in fact, restrict what information statutory equality agencies can release, the processes adopted by statutory equality agencies, and the available information about claims. In doing so, we analyse the potential impact of confidentiality on the effectiveness of equality law from both an individual and a societal perspective.

In Part II, we outline the process of resolving an employment discrimination claim in each country, and highlight the prevalence of settling and, consequently, confidentiality. Drawing on historical legislative materials and qualitative interviews with conciliators from the Victorian Equal Opportunity and Human Rights Commission ('VEOHRC') and solicitors who practice in anti-discrimination law in Victoria, (2) we consider the role and importance of confidential settlements to the enforcement of equality law from the perspective of those involved in the process.

The practical impact of confidential settlements and processes is compounded by the fact that equality agencies do not release much information about the outcomes negotiated in settlement agreements or the nature of claims, even in a de-identified form. In Part III, we consider what information the agencies actually make public. We then examine the restrictions imposed on the agencies by both privacy legislation and provisions in the founding legislation of the agency, and consider whether this helps to explain such practices. In Part IV, we draw on legal theory and literature on the rule of law to argue that there are inherent conflicts in the reliance on confidentiality in each jurisdiction. We argue that the enforcement of equality law requires a more nuanced balance between confidentiality--to support the individual--and transparency to support the systemic aims of equality law and the imperatives of the rule of law. In Part V, we offer suggestions for how this could be achieved.

II THE ROLE OF CONFIDENTIALITY IN THE ENFORCEMENT OF EQUALITY LAW

ADR, usually in the form of conciliation, has been the preferred mode of resolving employment discrimination claims in the UK and Australia since equality laws were introduced. When establishing the legislative framework, governments in both jurisdictions (including state governments in Australia) intentionally redirected discrimination claims away from (public) court hearings towards (private) conciliation and ADR. Consequently, confidentiality has become embedded in the enforcement, process, and outcomes of the individual enforcement model adopted. In this part, we begin by outlining how an employment discrimination claim is resolved in the UK and then in each Australian jurisdiction, drawing attention to the centrality of confidentiality. Both jurisdictions largely rely on individuals enforcing statutory rights to address inequality and discrimination, and the majority of individual discrimination complaints are resolved via private agreement reached through confidential ADR processes. (3) This is set up in the legislative framework in both countries, as we outline below in Part II(A). However, not only is the complaint resolution process confidential, but settlement agreements often include a term that requires the parties to keep the settlement terms, and often the details of the complaint, confidential. Empirical data collected in Victoria shows that confidentiality clauses regularly feature in settlement agreements and are a key reason parties, particularly respondents, agree to settle. These findings are discussed in Part II(B).

A Confidentiality and Conciliation

1 The United Kingdom

There is a long history of reliance on conciliation in the enforcement of UK equality law. (4) Britain's first equality agency, the Race Relations Board, was responsible for handling complaints and providing conciliation. (5) When the Race Relations Act 1965 (UK) was first raised in Parliament, the government noted that it did not regard conciliation as appropriate for dealing with discrimination in public places, instead favouring criminal penalties. (6) However, following pressure in Parliament, the Act ultimately made provision for the formation of the Race Relations Board and local conciliation committees to secure compliance with the Act, and for the 'resolution of difficulties' arising from its provisions. (7) Further, had the Act extended to the prohibition of discrimination in employment, then the government would have been strongly in favour of conciliation for resolving claims:

If the Bill had been intended to deal with the wider topics of employment and housing, sanctions of a different character would have been obviously more appropriate, possibly civil sanctions such as are made applicable in the United States and Canadian legislation which set up conciliation commissions and boards for dealing with discrimination in employment. Probably, however, completely informal conciliation processes would have been more acceptable to our way of thinking about such matters. (8) Unsurprisingly, then, in the second reading speech for the Race Relations Act 1968 (UK)--which did extend to housing and employment--conciliation was put forward as a fundamental aspect of the Act's machinery:

The Bill comprises three main elements. There is, first, a declaration of public policy that discrimination is unlawful on grounds of race, colour, ethnic group or nationality. The second main element is a process of conciliation. Under the Bill, machinery is provided for hearing all parties and all sides to the argument with a view to reconciling the differences. The third main element in the Bill is the enforcement provisions that will come into play if, and only if, the process of conciliation breaks down and the Race Relations Board decides to take further action. These three elements depend upon each other; they form a common pattern. (9) The Act was passed in a context where machinery already existed for conciliation in industry, and 'for practical reasons industry should make the maximum use of its own machinery for conciliation'. (10) Thus, the conciliation mechanisms in the Act were only intended to operate where industry did not already have a process of conciliation in place. Discrimination law in the UK was therefore passed in a context of existing processes of industrial negotiation, which framed the approach to be taken in this context.

Today, the statutory Advisory, Conciliation and Arbitration Service ('Acas') provides confidential individual conciliation and mediation free of charge to attempt to resolve employment disputes (including discrimination claims). As part of the system of early conciliation in place since May 2014, employees must contact Acas before making a claim to an employment tribunal. (11) In the Explanatory Notes to the Enterprise and Regulatory Reform Act 2013 (UK), this change was justified on the basis that:

At present there is no obligation on prospective claimants to contact ACAS and/or consider conciliation at any stage and an employment tribunal cannot refuse to accept a claim on the basis that a claimant has not contacted ACAS. In addition, there is no duty on ACAS to provide conciliation before a claim has been filed at an employment tribunal--there is only a discretionary power. Of all the claims lodged at an employment tribunal, less than a fifth of claimants will have contacted ACAS for advice before submitting their claim. As a result, the opportunity for ACAS to offer pre-claim conciliation is limited. Section 7 therefore requires individuals to contact ACAS with details of their claim and obtain written confirmation that pre-claim conciliation has been declined or unsuccessful before they can present a claim to an employment tribunal. (12) The change in process, therefore, appeared to be driven by a desire to give Acas the opportunity to offer conciliation in a wider range of claims. This change in the legislative framework has significantly increased the number of claims subject to conciliation: Acas reports that in 2016-17, 64.6% of employee-led early...