‘Restricting NDAs is essential to putting victim-survivors first,’ lawyers say

Recommendations have been made in a joint submission by the Human Rights Law Centre and Redfern Legal Centre to the Victorian government on restricting the usage of NDAs.

Routinely misused – non-disclosure agreements (NDAs) have been used as a silencing tool, often restricting victims who experience sexual harassment in the Australian workplace.

Listed in their submission, “Restricting NDAs in workplace sexual harassment cases consultation”, the Human Rights Law Centre believes enough is enough, welcoming consultation from the Victorian government on legislation to restrict the use of these NDAs in this manner.

“This is an opportunity for Victoria to lead the country in laws that recognise NDAs are routinely misused – concealing sexual harassment, silencing victims and perpetuating a culture of impunity,” said Regina Featherstone, a senior lawyer at the Human Rights Law Centre.

The usage of NDAs to settle workplace sexual harassment incidents out of court has been a prevalent issue throughout Australia and has been widely covered on HR Leader. As previously reported, Sexual Harassment Australia believes that employers are largely against reforming non-disclosure agreements, as they often protect the brand, and avoid reputational damage.

“Australian employers, however, have a huge incentive to maintain the current non-disclosure laws. Namely, because they allow employers to avoid any reputational damage as a result of sexual harassment taking place under their watch. And because they prevent victims from taking legal actions against them later on,” said Sexual Harassment Australia.

This misuse of NDAs only protects abusers and employers who either perpetuate sexual harassment or allow it to manifest in their working environment. Victims who experience workplace harassment are consistently silenced to a point where it can have an extremely detrimental effect on their mental health, exacerbating the trauma already associated with the abuse.

“The proposed laws would ensure that NDAs are not the default, which would be a significant step in dismantling the culture of secrecy and fear that often surrounds workplace sexual harassment and give victim-survivors more power over their own cases,” said Featherstone.

“For many women, work is an unsafe place. Whistleblowing can involve speaking up about risks to personal safety. We still have a long way to go to make our workplaces safe for everyone. Transparency will help us get there.”

Having the courage to carry out the act of whistleblowing is an incredibly tough task, yet victims who try aren’t being rewarded for said courage. Instead of seeing their abuser held to account for their actions, these whistleblowers are silenced.

“Whistleblowers play a vital role in exposing misconduct, but NDAs are routinely used to silence whistleblowers who dare to speak out,” said Featherstone.

“Restricting NDAs is essential to putting victim-survivors first, which, in turn, protects the rights of whistleblowers and promotes transparency in the workplace.”

To combat this security blanket that protects employers and abusers, the Human Rights Law Centre and Redfern Legal Centre have recommended:

1. Victim-survivor choice: Centre the experiences of victim-survivors by empowering them with true choice around NDA use.
2. Education: Implement more education and resources for the legal profession, employers, perpetrators, and victim-survivors regarding NDA use.
3. Intersectionality: Expand the scope of the Victorian framework to address intersectional experiences of sexual harassment and discrimination.
4. Accessibility: Ensure compliance and enforcement mechanisms for breaches of the proposed Victorian framework are accessible.
5. Accountability: Mandate data and reporting requirements around NDA use to drive greater cultural change.
6. Secrecy: Reform secrecy provisions in Victorian legislation that have an equivalent impact to NDAs on victim-survivors in the Victorian public sector.

“It’s essential that the proposed laws are strengthened to ensure that the intersectional experiences of sexual harassment and other grounds of discrimination are recognised, as well as stronger education around NDA use and enforcement mechanisms,” said Featherstone.

“We commend the Allan government on taking steps towards this critical reform, and look forward to seeing the rest of the country follow suit.“