(Cth) Prohibit the Use of NDAs in Workplace Sexual Harassment Cases (Except Where Requested by the Survivor)

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Author: Astrid Hickey and Loveleen Kaur Benipal | Publish date: 6/1/2026

Trigger Warning: References to sexual harassment

• P: Non-disclosure agreements (NDAs) can currently be used in workplace sexual harassment (WSH) cases, even if not requested by the survivor. 

• S: The Attorney General, Minister for Women, and Minister for Employment and Workplace Relations should amend Section 28B of the Sex Discrimination Act 1984 (Cth) to prohibit the use of NDAs in WSH cases, except where one is requested by the survivor.

  
  

Problem Identification: 

Section 28B of the Sex Discrimination Act 1984 (Cth) outlines that, for an employer, ‘[i]t is unlawful for a person to sexually harass or harass on the ground of sex’ ‘(a) an employee of the person; or (b) a person who is seeking to become an employee of the person.’ However, it does not contain any restrictions on NDAs being used by employers in WSH cases. 

According to the Australian Human Rights Commission (AHRC), this means that survivors of WSH who sign NDAs can be subject to agreements that ‘create isolation, prevent closure, and undermine the transparency essential for genuine accountability.’

Context: 

An NDA refers to an agreement that imposes a legal requirement preventing someone from sharing certain information with others. A report by the University of Sydney Law School highlighted that NDAs in settlement agreements were still ‘“standard”’ in WSH cases due to the reputational damage that WSH can cause to a business or organisation. A settlement may also involve a payment to the victim-survivor in exchange for confidentiality. Working Women’s Centre Australia (WWCA) has highlighted that NDAs often require survivors to remain partly or completely silent about their experiences in the workplace. A report by The University of Sydney Law School found that ‘approximately 75% of [legal practitioners]... have never resolved a sexual harassment complaint without a strict NDA.’

Hall Payne Lawyers noted that breaching an NDA can have significant financial and legal consequences for the survivor, particularly if their employer brings a claim for ‘financial or reputational harm’ suffered as a result of the breach. 

In 2022, the AHRC reported that ‘[i]n the last 5 years, one in 3 Australians (33%) [had] been sexually harassed at work’, with rates being much higher for women than men.

Arguments:

The AHRC’s Speaking from Experience report argued that NDAs reinforce power imbalances by producing coercive settlements. It explained that survivors may feel pressured to accept NDAs because they fear ‘losing future employment opportunities, professional retaliation, or reputational damage’. The report further argued that settlements tend to prioritise organisational reputation, highlighting that there is ‘a strong sense that [NDAs] protect harassers and organisations, rather than support victim-survivors.’ One contributor to a report by the Human Rights Law Centre and Redfern Legal Centre, who signed an NDA, described how the workplace investigation into her sexual assault by a senior manager ended with ‘an explanation of the need to protect the shareholders’, and that the experience left her ‘...never really trusting and terrified of any employment structure’. 

According to the Speaking from Experience report, the use of NDAs by employers in sexual harassment cases can limit victims’ healing and access to support. The University of Sydney Law School report highlighted that ‘confidentiality clauses tend to be broadly expressed, which means victim survivors are required to keep the details of the settlement and allegations of sexual harassment confidential and without a time limitation.’ The report further noted that the inability of survivors to speak out about their experiences ‘can lead to post traumatic stress disorders, among other illnesses.’ 

The AHRC report also emphasised that NDAs allow the behaviour of perpetrators and harmful workplace culture to remain hidden and unaddressed. The Australian Council of Trade Unions (ACTU) said that this means perpetrators and employers are able ‘to conceal and continue longstanding patterns of sexual misconduct, avoid accountability, and prevent discussion’. The WWCA similarly argued that employer-driven NDAs in workplace sexual harassment settlements force survivors to ‘choose between achieving compensation for the harms they have suffered and speaking out to create broader awareness or change.’ 

Advice/Solution Identification:

The AHRC and WWCA have called for the prohibition of the use of NDAs in WSH cases, except where one is requested by the complainant. The AHRC report asserted that, if implemented, this could help to ‘[i]ncrease workplace transparency and protect workers’ rights’. The WWCA said that this could allow survivors to ‘retain greater control and autonomy over their story and the terms of resolution.’

Precedent:

There is domestic and international precedent for restricting the use of NDAs in WSH cases. In VIC, new legislation was passed in November 2025, and in Ireland, new legislation was passed in 2024, prohibiting the use of NDAs in WSH cases except where one is requested by the survivor. 

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Public Support: 

1. Australian Human Rights Commission 

2. Human Rights Law Centre

3. Redfern Legal Centre

4. Working Women’s Centre Australia

   
   

News Coverage:

• The Conversation - “‘I’m just exhausted’: Sexual harassment at work is still rife. These new laws would help”. The Conversation reported that the Australian Human Rights Commission has a new report called Speaking from Experience, which laid out barriers to justice and recovery for WSH survivors, including NDAs. By: Sarah Ailwood | Mon 30 June 2025 - Read the article here.

• The Guardian - “Maria felt pressured to sign an NDA after being sexually harassed. Now she’s speaking out against the practice”. The Guardian reported a story of Maria, who was impacted by the strict terms of an NDA, which meant she could not disclose the alleged harassment she experienced. By: Benita Kolovos | Fri 29 Nov 2024 - Read the article here. 

• Financial Review - “Employers’ use of NDAs restricted under new Allan Labor laws”. The article focused on how the Victorian government is tackling the issue of NDAs to ensure victim-survivors are not silenced any longer. By: Hannah Tattersall | Wed 29 Oct 2025 - Read the article here. 

• ABC News - “Companies called out for using NDAs to stop women talking about sexual harassment”. The ABC reported on how class action suits have been launched against Rio Tinto and BHP as they were forcing women to sign NDAs. By: Lexy Hamilton-Smith | Thu 12 Dec 2024 - Read the article here.

Where to go to learn more: 

1. Speaking from Experience: What needs to change to address workplace sexual harassment (June 2025) - This report by the Australian Human Rights Commission addressed how workplaces can become safer for workers from diverse backgrounds. It aimed to explore the policy and practice gaps that exist and have implications for workers who are in insecure employment and are at an increased risk of being harassed. Read the full report here. 

2. Let’s Talk about Confidentiality (March 2024)  - The report by the University of Sydney Law School outlined the prevalence of NDAs in WSH cases and their impacts on survivors. It also described problems in current legal practice in relation to NDAs in WSH cases. Read the full report here. 

3. NDAs: Factsheet for Employers - This factsheet described what an NDA is and the implications they have for survivors. It included a case study that highlighted how women have been impacted by sexual harassment in the mining industry, and how WSH can impact employer reputation. Read the factsheet here. 

4. Restricting Non-Disclosure Agreements in Workplace Sexual Harassment Cases - The report laid out a series of guidelines for using a trauma-informed approach in the implementation of VIC Government legislation restricting the use of NDAs in workplace sexual harassment matters. Read the full report here. 

5. Sex Discrimination Act 1984 (Cth) - Read the full Act here.

Human Perspective: 

Annie has worked in a corporate role at a manufacturing company for a year. After she reported the senior manager who had harassed her for months, Annie was quickly steered into a confidential settlement process framed as ‘standard practice’. Instead of being told she had control over the process, she was presented with a monetary settlement offer that was conditional on her signing a strict confidentiality clause. Worried about her job, reputation and finances, and advised that this was the only realistic way to ‘move on’, she felt she had little choice but to accept. The NDA prevented her from speaking about what had happened to anyone, leaving her unable to warn colleagues, participate openly in investigations, or seek informal support without fearing she might breach the agreement. Annie was scared to talk to her parents, friends and even her psychologist about her experience, fearing she would be held legally responsible if she accidentally shared too much. The manager remained in his role and her co‑workers were never told about the harassment that Annie faced. Annie received a settlement, but at the cost of ongoing isolation, anxiety about ‘saying the wrong thing’, and a sense that the process had prioritised the organisation’s reputation over her safety and the safety of others.

To protect the anonymity of those involved, this is a fictionalised account drawn from an amalgamation of real-life stories, experiences and testimonials gathered during the research process for this brief. Any resemblance to actual individuals is purely coincidental.

Conflict of interest/acknowledgment statement: 

N/A

Support 

If your organisation would like to add your support to this paper or suggest amendments, please email Info@foreaustralia.com. 

Reference list: 

Ailwood, S. (2025, June 30). ‘I’m just exhausted’: Sexual harassment at work is still rife. These new laws would help. The Conversation. https://theconversation.com/im-just-exhausted-sexual-harassment-at-work-is-still-rife-these-new-laws-would-help-259884

Australian Council of Trade Unions. (2024). Consultation into restricting NDAs in sexual harassment cases. https://www.actu.org.au/wp-content/uploads/2024/09/D67-ACTU-Submission-to-Victorian-Government-Consultation-into-Restricting-the-Use-of-Non-disclosure-Agreements-in-Workplace-Sexual-H.pdf

Australian Human Rights Commission. (2022). Time for respect: Fifth national survey on sexual harassment in Australian workplaces. https://humanrights.gov.au/__data/assets/file/0026/46817/2022.11.25_time_for_respect_2022_final_digital.pdf

Australian Human Rights Commission. (2025). Speaking from experience: What needs to change to address workplace sexual harassment. https://humanrights.gov.au/media/documents-files-PDFs/reports-and-publications/sex-and-gender/2025/Speaking-from-Experience-Report_A-june-2025.pdf

Featherstone, R., & Bargon, S. (2024). Let’s talk about confidentiality: NDA use in sexual harassment settlements since the respect@work report. University of Sydney Law School. https://rlc.org.au/sites/default/files/2024-03/Let%27s%20talk%20about%20confidentiality%20final_0.pdf

Featherstone, R., & Bargon, S. (2024). Restricting non-disclosure agreements in workplace sexual harassment cases. Human Rights Law Centre, & Redfern Legal Centre. https://rlc.org.au/sites/default/files/2024-12/240916%20-%20NDA%20Submission%20%28HRLC%20%2B%20RLC%29.pdf 

Hamilton-Smith, L. (2024, December 12). Companies called out for using NDAs to stop women talking about sexual harassment. ABC News. https://www.abc.net.au/news/2024-12-12/class-action-mining-rio-tinto-bhp-harassment-abuse-allegations/104714064

Kolovos, B. (2024, November 29). Maria felt pressured to sign an NDA after being sexually harassed. Now she’s speaking out against the practice. The Guardian. https://www.theguardian.com/australia-news/2024/nov/29/maria-felt-pressured-to-sign-an-nda-after-being-sexually-harassed-now-shes-speaking-out-against-the-practice-ntwnfb 

Kozlov, I. (2025, April 13). Sexual harassment at work and the use of non-disclosure agreements. Hall Payne Lawyers. https://www.hallpayne.com.au/blog/2025/april/sexual-harassment-and-nda/ 

Maternity Protection, Employment Equality and Preservation of Certain Records Act 2024 (Ireland). https://www.irishstatutebook.ie/eli/2024/act/37/enacted/en/print#sec5 

Restricting Non-Disclosure Agreements (Sexual Harassment at Work) Bill 2025 (VIC). https://www.legislation.vic.gov.au/bills/restricting-non-disclosure-agreements-sexual-harassment-work-bill-2025

Sex Discrimination Act 1984 (Cth). https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/sda1984209/s28b.html

Tattersall, H. (2025, October 29). Employers’ use of NDAs restricted under new Allan Labor laws. Financial Review. https://www.afr.com/work-and-careers/workplace/employers-use-of-ndas-restricted-under-new-allan-labor-laws-20251029-p5n65a 

Working Women’s Centre Australia. (2025, June 25). The launch of the speaking from experience report. https://www.wwc.org.au/speaking-from-experience-report/ 

Working Women’s Centre Australia. (2025, September 17). Join the campaign. https://www.wwc.org.au/join-the-campaing-hub/ 

Working Women’s Centre Australia. (2025, September 17). NDAs: Factsheet for employers. https://www.wwc.org.au/ndas-for-employers/

Working Women’s Centre South Australia. (2025). Restrict and regulate non-disclosure agreements: Stop silencing women & workers. https://wwcsa.org.au/wp-content/uploads/2025/07/1-Restrict-NDAs-campaign-brief_2025_WWCSA.pdf