While people are increasingly deciding against confidentiality in settling complaints, in the case of defamation cases, settling the matter at the mediation stage with a confidentiality clause is the norm, Ms Blumer explained. 

“Technically, you can’t even tell your mom or your husband what a claim is settled for,” she said, so clients often wonder what they can tell people. 

“If it says, for instance, the amount is confidential and the contents of the deed are confidential, but everything else is out there, then that’s a bit easier,” Ms Blumer noted, “and sometimes the confidentiality deed itself expresses what you can tell people”.

“In a high public interest case, we might have a clause in there that agrees as to what the press will be told and who will say it,” she noted. 

“The laws have often been followed fairly loosely, there hasn’t been a lot of prosecution of people for talking about a case and they shouldn’t have.”

There have been legislative changes over the years that have undermined confidentiality clauses in favour of carrying out justice, Ms Blumer continued. 

“One of the things that happened after the abuse inquiry was that all those people that had signed dodgy little non-disclosure agreements saying, ‘I give up my rights forever’, were allowed to undo those or try again or get a bit more compensation,” Ms Blumer explained. 

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“There started to be exceptions made. A lot of people, when they entered into agreements, didn’t think they had a big case because back in the day, not so many years ago — if it was more than three or six years since it had happened, you’re out of time.

“Then all the states and territories brought in laws extending time for abuse cases. 

“They all had different definitions, but it meant that you might have settled a case for $20,000 twenty years ago because you thought you didn’t have a case at all because it was out of time, so therefore that looked like good money.

“You were then allowed to go back and go, ‘actually that wasn’t enough, and I should have another go at it’, that’s one legislative reform that has been very effective.”

Ms Blumer also discussed if laws around confidentiality agreements should be further altered for the cause of better serving justice. 

“For changing the law on those confidentiality deeds, I would think would be very difficult to undo or to legislate about,” Ms Blumer explained. “It would just fly in the face of so many legal conventions.”

“I do think that the general law protects people to a degree because there [are] so many outs for a confidentiality deed.”

“For lawyers, if you come across a confidentiality or non-disclosure agreement that you think might not hold water, then you can have a good look at it, get some advice, and think about it. What can I do? What can’t I do? Because those things are very important,” Ms Blumer noted. 

“But most of them have to say something like, I cannot reveal the contents of this agreement, unless enforced by a law. For instance, if you were summoned to a royal commission or something, you might have to put that aside or with the permission of the party.”