The Australian Human Rights Commission has just released Speaking from Experience, a national report recommending an end to the routine use of non-disclosure agreements (NDAs) in workplace sexual harassment cases.
The report highlights the harm NDAs can cause when used to silence victim-survivors, protect employer reputations, and prevent accountability for repeat offending. It adds further national weight to the work already underway in Victoria.
The Victorian Ministerial Taskforce on Workplace Sexual Harassment (Taskforce) recommended that the Victorian Government introduce legislative amendments to restrict the use of NDAs in relation to workplace sexual harassment cases.
The Taskforce found that NDAs are often used to silence victims, protect employer reputations, and avoid full liability, and that NDAs can be used to hide serial offending and offenders. The Taskforce recommended that Victoria use the Irish Employment Equality (Amendment) (Non-Disclosure Agreements) Bill 2021, and lessons from other jurisdictions, including the United Kingdom and the United States, as the model for reform in Victoria.
Last year the Working Women’s Centre Victoria (WWCVic) prepared a submission to the review and made 33 recommendations. We advocated for a framework that safeguards the rights and voices of victim-survivors, allowing them to control the narrative surrounding their experiences. This proposed reform aims to transform NDAs from tools of secrecy and silence into instruments of empowerment. Central to this reform is the principle that the needs and wishes of victim-survivors must be paramount. Many cases of sexual harassment also intersect with other serious issues, including discrimination, unpaid wages, and bullying. That’s why we have recommended that legal advice encompass the entire complaint, not just the NDA clause.
In our submission, we highlighted the importance of victim-survivors retaining the flexibility to draft NDAs that reflect their unique circumstances. By empowering victim-survivors to negotiate the terms of their NDAs, we can prioritise their privacy and enable them to advocate for broader systemic change. This approach helps alleviate the emotional burden of negotiations, allowing them to focus on their needs without the added pressure of considering public interest implications.
The proposed framework for reforming NDAs represents a significant step toward creating a more supportive environment for victim-survivors of sexual harassment. By prioritising their agency and providing holistic legal support, we can dismantle the secrecy culture that has long surrounded these issues. Through thoughtful reforms, we can create workplaces that protect victim-survivors and promote accountability and systemic change, ultimately fostering a culture of transparency and empowerment.
Where can I get support?
The Working Women’s Centre Victoria has a team of lawyers ready to provide free, confidential legal help for women working across Victoria. If you’ve been sexually harassed at work we believe you and can help.
We’re here to help any woman working anywhere in Victoria, even if you live in regional or remote areas. We can also organise an interpreter if you need.