Non-disclosure agreements (NDAs) were meant to protect trade secrets. These days, too often, they’re being used to silence victims of sexual harassment.

These victims – overwhelmingly women – are being asked to sign these agreements, as part of their settlement.

What is actually being bought is their silence – 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.

It’s why the Allan Labor Government will begin consultation on nation-leading laws to restrict the use of NDAs in workplace sexual harassment cases.

The engagement process will seek feedback on a number of potential protections, including:

• Prohibiting NDAs unless requested by the complainant
• Ensuring no attempts have been made to unduly pressure or influence a complainant to enter an NDA
• Ensuring an NDA does not adversely affect others
• The ability for the complainant to decide to waive their own confidentiality in the future
• Review and ‘cooling off’ periods
• Permitted disclosures (including to legal professionals, medical and mental health professionals, prospective employers, union representatives and support people)

Consultation on the legislation begins today and submissions are encouraged from victim-survivors – so we get this right. Victim-survivors can also provide their feedback anonymously via a short and confidential survey.

The community, businesses, unions, workers, and legal groups are also invited to participate with consultation open until 8 September.

At present, there is only one nation where laws of this kind currently exist – the province of Prince Edward Island, in Canada. The proposed legislation will be the first of its kind in Australia, and amongst the first in the world.

Legislating to restrict the use of NDAs in workplace sexual harassment cases was a key recommendation of the Victorian Ministerial Taskforce on Workplace Sexual Harassment.

For more information about the reforms – or to make a submission or complete a survey – visit
engage.vic.gov.au/restricting-non-disclosure-agreements.

Quotes attributable to Premier Jacinta Allan

“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.”

Quotes attributable to Minister for Industrial Relations Tim Pallas

“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.”

Quotes from victim-survivors

“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.” – Kim

“I was very traumatised at the time and suffering terrible anxiety due to the way I had been treated. I could not stay working at the workplace (due to stress) and I had rent to pay, so I signed the NDA. This was a terrible injustice. It happened many years ago now, but I still clearly remember the trauma and injustice of the whole situation.” – Billie

“There was no negotiation. If I wanted to leave with the money I had to sign. Signing was a condition for the $. It added enormously to my mental health issues. It makes serial offenders untouchable. The guy in my case was well known for his behaviour.” – Jennifer

“I was grateful to have a financial resolution and an end to having to deal with lawyers. Signing the NDA was non-negotiable. It was explained to me but I was tired, emotionally fraught and not in a good position to make that decision at the time.” – Jun

“Dangerous conditions need to be addressed, not brushed under the carpet. People subject to victimisation need to be able to demonstrate their agency in order to reassert their sense of safety. An institution’s public relations concerns should never trump the wellbeing of people.” – Samantha