For a long period of time, non-disclosure agreements (NDAs) have played a key role in dispute resolution processes across Australian workplaces. However, particularly in sexual harassment matters. This is because confidentiality clauses became imbedded into the routine. They have been positioned to have provided a neutral and unbiased method to finalise disputes. And a way to allow both parties to “move on.” However, in recent years the use of NDAs in such claims have become contentious. They have become a source of blame for silencing workers, shielding perpetrators and masking systemic failures by the employers. Hence recent Victoria’s Restrictions on NDAs.
In response, Victoria introduced its landmark legislation which places restrictions upon the use of NDAs in workplace sexual harassment claims. The Restricting Non-disclosure Agreements (Sexual Harassment at Work) Bill 2025 having received royal assent on the 2nd of December 2025. This marks a key shift in state legislation. One away from secrecy and toward accountability and survivor autonomy. Albeit, NDAs have not been banned in their entirety, however, their use is now being tightly controlled. This changes, on a fundamental scale, how sexual harassment disputes can be resolved in Victoria.
The Role NDAs Have Played in Sexual Harassment Settlements
NDAs have been historically, very vital, playing numerous key roles. For employers, confidentiality seeks to protect reputation, avoid negative press and limit the surrounding risks. For workers, NDAs have been used to promote privacy and closer. Particularly minimising the surrounding stigma.
Despite this, confidentiality clauses have often operated as a condition imposed upon vulnerable workers, as opposed to a genuine choice and exercise of autonomy. Generally, settlement agreements are made in light of great power imbalances. A victimised workers may be distressed, unemployed, financially insecure. Whilst the employer will control their access to compensation, references and any future opportunities. Resultantly, the term “agreement,” fails to reflect the context at hand. Generally, an agreement to silence is one shaped by perceived necessity, rather than being reflective of genuine consent.
NDA’s critics have long suggested that the agreements can enable harmful patterns to continue to occur. Organisations are provided with the opportunity to avoid confronting and resolving cultural problems when allegations remain confidential. And perpetrators can also transfer between organisation without facing any scrutiny. Such as issue has been made clear, repeatedly, by media and victim testimony. There have been numerous accounts of workers being pressured into NDAs, only to come to the later realisation that enforced confidentiality has allowed misconduct to continue. A pattern which is particularly distressing in the context of sexual harassment claims.
Why has Victoria decided to act
The recent Victorian restrictions on NDAs have not arisen out of nowhere. They are the product of years of worker advocacy, strengthened by legal experts and victim testimonies. They also follow a broader intensification of the national conversation surrounding sexual harassment, after the Respect@Work inquiry. This inquiry reframed harassment, as not an isolated series of incidents, but rather the result of systemic workplace issues. Nationally, it imposed a positive duty of care for employers to eliminate sexual harassment within the workplace. Disseminating the idea that active prevention, transparency and accountability are all vital pillars.
Subsequently, the Victorian Government identified the use of NDAs as acting as a barrier to the necessary cultural change. The reforms intend to “break the culture of silence,” according to the Victorian Parliament. A culture which has historically surrounded workplace sexual harassment. And being used to take control back from victims.
Overview of the Legislative Framework
Victoria’s Restrictions on NDAs establishes a comprehensive framework governing when NDAs can be used and when they will be enforceable. Rather than banning confidentiality outright, the legislation reframes NDAs as an option that must be driven by the employee’s wishes.
Legal analysis from the Victorian Government Solicitor’s Office has noted that the reforms require employers to fundamentally rethink their approach to settlement deeds and dispute resolution.
Employee-Requested Confidentiality Only
Under the new restrictions on NDAs, an NDA can only be included in a settlement if the employee expressly requests it. Employers are prohibited from insisting on confidentiality, presenting NDAs as standard terms or implying that settlement is contingent on silence.
These restrictions on NDAs is significant because it reverses the traditional power dynamic. Confidentiality is no longer an employer-driven risk management tool but an employee-controlled choice. Where a worker wants privacy, they may request it. Where they do not, silence cannot be imposed.
Informed Consent and Review Periods
To ensure that confidentiality is genuinely informed, the legislation introduces a mandatory minimum review period of 21 days before an NDA can be signed. During this period, the worker must receive a prescribed information statement explaining the effect of the NDA, their legal rights and the consequences of agreeing to confidentiality.
This safeguard reflects an acknowledgement that settlement discussions often occur at emotionally fraught moments. Workers may be eager to escape an unsafe workplace or resolve distressing proceedings quickly. The review period is designed to slow the process and allow space for reflection and advice.
Prohibition on Pressure and Undue Influence
One of the most important features of the restrictions on NDAs is the express prohibition on pressure or undue influence. Employers must not encourage, coerce or manipulate workers into requesting or agreeing to NDAs.
This provision directly addresses one of the most persistent criticisms of NDAs: that consent is often nominal where there is a significant imbalance of power. Any attempt to exert pressure may render an NDA unenforceable and expose the employer to further legal risk.
Preserved Rights to Speak and Seek Support
Even where an NDA is validly entered into, the legislation preserves a worker’s right to disclose information to certain people and bodies. These include lawyers, medical practitioners, immediate family members, police, courts and regulatory authorities.
This ensures that NDAs cannot be used to prevent reporting, access to healthcare or participation in legal processes. Legal commentary from Gadens has emphasised that this feature aligns the Victorian regime with principles of access to justice and public interest disclosure.
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Time Limited Confidentiality
Perhaps the most far-reaching reform is the introduction of a right for employees to terminate an NDA after 12 months by giving written notice. This recognises that a worker’s circumstances, confidence and priorities may change over time.
Permanent silence has been one of the most criticised aspects of NDAs. Allowing workers to speak after a defined period acknowledges that confidentiality should not bind someone indefinitely, particularly where broader accountability or advocacy may later feel important.
Why Choice Matters for Victim-Survivors
Central to the Victorian reforms and restrictions on NDAs is the concept of choice. Supporters argue that confidentiality itself is not inherently harmful, but the absence of choice is. Some workers may genuinely want privacy, particularly where public disclosure could cause further harm. Others may wish to speak openly to warn colleagues, advocate for change or reclaim their narrative.
By placing the decision in the hands of the worker, the restrictions on NDAs recognise the diversity of survivor experiences. Silence becomes an option rather than an obligation.
Interaction With Federal Sexual Harassment Law
Victoria’s restrictions on NDAs sit alongside existing federal protections, including the positive duty under the Sex Discrimination Act 1984. Employers are now required to take reasonable and proportionate steps to eliminate sexual harassment. Allowing harmful conduct to remain hidden through enforced confidentiality may be inconsistent with that duty.
The restrictions on NDAs therefore reinforce a broader legal shift toward prevention, transparency and accountability rather than reactive, private settlement.
Political and Public Response
Victoria’s restrictions on NDAs has been welcomed by worker advocates and survivor groups, many of whom view it as a long-overdue correction. The Victorian Greens described the reforms as a significant win for accountability and cultural change.
Some employer groups and legal practitioners have expressed concern about uncertainty and compliance. However, analysis from Pinsent Masons has noted that the reforms do not eliminate confidentiality but ensure it is voluntary, informed and limited.
The Role of Media and Survivor Voices
Media reporting has been instrumental in driving reform. Coverage by The Guardian and the ABC has highlighted the lived experiences of workers silenced by NDAs and the long-term consequences of enforced secrecy.
ABC News has also reported on sexual harassment allegations within Victorian Parliament itself, including statements from MPs who supported reform based on their own experiences.
These accounts underscore that sexual harassment, and the misuse of NDAs, is not confined to any single industry or institution.
What Employers Need to Do Now
Employers operating in Victoria should begin preparing well before the restrictions on NDAs commence. This includes reviewing settlement templates, updating policies, and training HR and management staff on the new requirements.
Settlement negotiations will need to be carefully documented to demonstrate that confidentiality was employee-requested and that no pressure was applied. While the reforms impose new obligations, they also provide clearer rules that may reduce disputes over enforceability.
The Power Imbalance at the Heart of NDA Use
A central issue underpinning the reform of NDAs in sexual harassment cases is the reality of power imbalance. Workplace sexual harassment rarely occurs between parties of equal standing. Often, the person experiencing harm is junior, precariously employed, dependent on income, or already psychologically impacted by the conduct itself. Settlement discussions typically arise at a moment when the worker is seeking safety, stability, or an exit from an environment that has become intolerable.
In these circumstances, the offer of a settlement accompanied by an NDA can feel less like a negotiation and more like an ultimatum. While confidentiality may be framed as a mutual protection, the practical effect is frequently one-sided. Employers retain institutional power, reputational resources and legal representation, while workers are asked to accept silence in exchange for certainty. The Victorian restrictions on NDAs explicitly acknowledge this imbalance by requiring confidentiality to be worker-initiated rather than employer-imposed.
Why Permanent Confidentiality Has Been So Harmful
One of the most damaging aspects of NDAs in sexual harassment matters has been their permanence. Traditional settlement deeds often required confidentiality “in perpetuity,” binding workers to silence indefinitely. For many, this meant being unable to speak to colleagues, warn others, participate in public conversations, or advocate for reform long after the immediate dispute had concluded.
Permanent confidentiality can also compound trauma. Survivors have described feeling isolated, disbelieved and burdened by secrecy, particularly when they later learn that the same perpetrator has harmed others. In this way, NDAs have not only concealed misconduct but have actively contributed to ongoing harm.
The Victorian reform allowing termination of NDAs after 12 months directly addresses this issue. It recognises that healing is not linear and that a worker’s needs may evolve over time. What feels protective in the immediate aftermath of harassment may later feel constraining or unjust. Providing a lawful pathway out of confidentiality restores autonomy and acknowledges that silence should never be irrevocable.
A Shift From Silence to Accountability
Ultimately, the significance of Victoria’s NDA reforms lies not only in their technical detail but in what they represent. For many years, silence has been treated as an acceptable, even desirable, outcome of workplace sexual harassment disputes. The new framework challenges that assumption.
By limiting secrecy, restoring choice and acknowledging power imbalance, the legislation marks a shift toward accountability and transparency. Whether this shift delivers its full promise will depend on how employers respond, how workers exercise their rights, and how the law is applied in practice. What is clear, however, is that the era of automatic silence in sexual harassment settlements is coming to an end.
Conclusion to “Breaking the Silence: Victoria’s Restrictions on NDAs in Workplace Sexual Harassment Cases”
Victoria’s restrictions on NDAs in workplace sexual harassment cases mark a decisive shift in Australian employment law. By limiting secrecy, restoring worker agency and promoting transparency, the reforms challenge long-standing practices that prioritised silence over safety.
For workers, the changes offer greater control and the possibility of speaking openly without fear of contractual penalty. For employers, they signal a clear expectation that sexual harassment must be addressed responsibly and openly. In moving away from silence as the default response, Victoria has taken a significant step toward safer, more accountable workplaces.
Beware that strict time limits can apply to sexual harassment claims. Confidential and specialised advice can be critical to ensuring the strength of your claim. We are not lawyers, we are workplace advisors and influencers. Contact Sexual Harassment Australia for free and confidential advice on 1800 333 666.
