The Australian Human Rights Commission has published a new report – Speaking From Experience – outlining 11 recommendations for reform aimed at addressing sexual harassment in the workplace. Of particular interest for lawyers, the report advocates for amending the Sex Discrimination Act 1984 (Cth) and relevant industrial laws to restrict the use of confidentiality and non-disclosure agreements in workplace sexual harassment cases.
The report advocates for the model established in Ireland under section 14B of its Employment Equality Act 1998. This restricts the use of NDAs related to workplace sexual harassment and discrimination by limiting the enforceability of such agreements, allowing them only when requested by the victim to protect their own confidentiality.
The report found that NDAs frequently create isolation for victims, prevent closure, and undermine the transparency essential for genuine accountability. For participants in the AHRC’s research, there was a strong sense that NDAs protect harassers and organisations, rather than support victim-survivors. For participants that had signed NDAs, even the decision of choosing a pseudonym to participate with reportedly became a source of grief about losing their ability to speak for change.
Speaking about the report to Women’s Agenda, Commissioner Dr Anna Cody noted the particularly damaging impact of NDAs on victims.
“What we heard over and over again was that people who had reported workplace sexual harassment and gone through a formal complaint process then felt silenced by having to sign a confidentiality agreement,” said Dr Cody
“They felt that they were the ones who then felt they were responsible in some way, and that there was a shame attached to them not being able to talk about it and not being able to necessarily discuss what happened with friends, family or counsellors.”
In parallel, momentum for change is building internationally. On 8 July, the UK government introduced amendments to its Employment Rights Bill that would ban NDAs used to conceal workplace harassment or discrimination. Deputy Prime Minister Angela Rayner stated the move was essential: “We have heard the calls from victims of harassment and discrimination to end the misuse of NDAs … The Employment Rights Bill will ban any NDA used for this purpose, so that no one is forced to suffer in silence.”
Campaigners – including Zelda Perkins, founder of the UK’s Can’t Buy My Silence (and formerly a PA to Harvey Weinstein) – hailed the reform as a “huge milestone”, crediting those who broke their NDAs to expose wrongdoing.
Some legal experts caution that a total ban could have unintended effects. Some victims may prefer confidentiality to maintain privacy, and employers might be less willing to settle complaints without it. These factors will need to be carefully balanced in any future reforms that deliver on the AHRC’s recommendation, with lessons drawn from Ireland and now also from the UK if their Employment Rights Bill passes as amended.
