‘NDAs are too often misused’: Consultation open for ‘nation-leading’ laws

The Victorian state government has begun consultation on new laws to restrict the use of NDAs in workplace sexual harassment cases.

When victims of workplace sexual harassment, “overwhelmingly women”, are asked to sign non-disclosure agreements, what “is being bought is their silence”, Victorian Premier Jacinta Allan’s office said in a statement on Monday (12 August).

These NDAs, the office submitted, are “legally compelling victims to stay silent, even with their family and friends. Sometimes, even their doctor or psychologist.”

“By silencing victim-survivors, NDAs are also being misused to hide serial offending, protect perpetrators and employers’ reputations,” the office said.

In an anonymous statement, Kim (not their real name) said: “It leaves perpetrators able to continue their behaviour.”

“It leaves them without any consequences to their career, employability, or their business if they are owners, plus it leaves others vulnerable to their behaviour. It essentially allows for the cover-up or hiding of illegal and harmful behaviour and practices.”

As such, and as first flagged by the state government in July 2022, consultation is now beginning on “nation-leading” laws to restrict the use of NDAs in workplace sexual harassment cases.

The proposed legislation will be the first of its kind in Australia and among the first in the world.

The consultation process seeks feedback on various potential protections, including the prohibition of NDAs unless requested by the complainant; ensuring no attempts have been made to unduly pressure or influence a complainant to enter an NDA; the ability for the complainant to decide to waive their own confidentiality in the future; and period for review and “cooling off”.

Moreover, permitted disclosures (including to legal professionals, medical and mental health professionals, prospective employers, union representatives and support people) are being flagged.

Businesses, unions, workers, legal groups, and the broader community are invited to make submissions.

Speaking about the process and looming laws, Premier Allan (pictured) said: “Non-disclosure agreements are being used to protect perpetrators and silence victims. That’s flat-out wrong. We’ve listened directly to victim-survivors who have been silenced, and this nation-leading reform will make sure they are heard.”

Minister for Industrial Relations Tim Pallas added: “We will restrict the use of NDAs in sexual harassment cases to make Victorian workplaces and Victorian workers safer.”­

“We know that NDAs are too often misused, and this reform is about putting the voices of victim-survivors first.”

Consultation is open until 8 September.