Confidentiality and Settlement: Uncovering the Hidden Secrets of the Enforcement of Equality Law in Australia and the UK

Posted: 24 Jul 2018

See all articles by Dominique Allen

Dominique Allen

Labour, Equality and Human Rights research group, Department of Business Law, Monash Business School; University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Alysia Blackham

Melbourne Law School, the University of Melbourne; University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Date Written: June 12, 2018

Abstract

Confidentiality is an essential aspect of the individual enforcement model adopted by equality and discrimination laws in Australia and the UK. Confidentiality is embedded in the enforcement, process, and outcomes of discrimination law. While this has a number of benefits, it also has significant limitations. First, there is very limited guidance regarding what claimants and respondents can expect from the law, including in relation to remedies (both monetary and systemic). Similarly, there is limited guidance for equality agencies, lawyers, and courts on how to resolve discrimination claims, or what remedies are appropriate. Second, there is limited public scrutiny of instances of discrimination, and the outcomes achieved under discrimination law. This may lead to substandard outcomes being tolerated, and may undermine the ability of discrimination law to achieve systemic outcomes. Third, and finally, there is limited scope to research discrimination complaints, and their outcomes, and to evaluate the law and its effectiveness.

In this paper, we consider the role and utility of confidentiality in discrimination law in Australia and the UK. We scrutinize the ways confidentiality is embedded in the enforcement, process, and outcomes of discrimination law, including via an examination of statutory provisions in each jurisdiction, and the processes adopted by statutory equality agencies. Drawing on empirical research conducted in both jurisdictions, we analyse the potential impact of confidentiality on the effectiveness of discrimination law from both an individual and societal perspective. We argue there are inherent conflicts in the reliance on confidentiality in each jurisdiction, and offer suggestions for how the systems could be enhanced to support the individual and systemic aims of discrimination and equality law, through a more nuanced balance between confidentiality and transparency.

Keywords: confidentiality, discrimination, equality, UK, Australia

Suggested Citation

Allen, Dominique and Blackham, Alysia, Confidentiality and Settlement: Uncovering the Hidden Secrets of the Enforcement of Equality Law in Australia and the UK (June 12, 2018). Berkeley Comparative Equality & Anti-Discrimination Law Study Group 2018 Conference at Melbourne Law School at the University of Melbourne, Available at SSRN: https://ssrn.com/abstract=3218188

Dominique Allen (Contact Author)

Labour, Equality and Human Rights research group, Department of Business Law, Monash Business School ( email )

Caulfield Campus
Sir John Monash Drive
Caulfield East, Victoria 3084
Australia

University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Boalt Hall
Berkeley, CA 94720-7200
United States

Alysia Blackham

Melbourne Law School, the University of Melbourne ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

HOME PAGE: http://https://www.findanexpert.unimelb.edu.au/display/person97769

University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Boalt Hall
Berkeley, CA 94720-7200
United States

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