In a first for any Australian jurisdiction, Victoria will introduce significant changes to the use of non-disclosure agreements (NDAs) in the resolution of workplace sexual harassment matters. This move will fundamentally shift the landscape for how these matters are commonly resolved and will require significant changes in current practice for many employers.
The Victorian Government introduced the Restricting Non-Disclosure Agreements (Sexual Harassment at Work) Bill 2025 (Vic) (Bill) to Parliament on 29 October 2025, with the Bill passing the Legislative Council on 20 November 2025. The Bill is set to take effect from 20 May 2026. Importantly, it does not have retrospective application and will not affect NDAs made before that date.
While the Bill doesn’t ban the use of NDAs, it significantly limits their use and represents a departure from a common approach to resolving matters of this kind, where NDAs are often treated as a ‘boilerplate’ term. Getting the house in order now, including grappling with the terms on which these kinds of matters might resolve, ensuring teams are well equipped to negotiate compliant agreements and considering how an organisation will approach terminated NDAs, will see employers well positioned to navigate these important changes.
Where have we come from? | The context for the Bill
Many readers will recall that the Australian Human Rights Commission’s landmark Respect@Work report in 2020 expressed the benefit of NDAs in protecting the privacy and confidentiality of victim-survivors of sexual harassment, including by helping to provide closure. However, the report also outlined concerns that NDAs can be used to protect the reputation of employers or harassers, cautioning that NDAs can contribute to a “culture of silence”.
In March 2021, following the Respect@Work report, the Victorian Government established the Ministerial Taskforce on Workplace Sexual Harassment (Taskforce) to develop reforms to prevent and respond to sexual harassment in workplaces. Following public consultation, the Taskforce reported that NDAs can be misused to silence victims, protect employer reputations, avoid full liability and hide serial offending. The Taskforce recommended that the Victorian Government introduce legislative amendments to restrict the use of NDAs in workplace sexual harassment cases in Victoria. The recommendation suggested drawing on international models from Ireland, the United Kingdom and United States as a basis for reform.
Where are we headed? | The key features of the Bill
The Bill is intended to reduce the incidence of NDAs being used to conceal workplace sexual harassment, while also protecting and empowering workers who experience workplace sexual harassment. It seeks to achieve these goals by placing limitations on the circumstances in which NDAs can be entered and the matters that can form part of an NDA, and by allowing a complainant to terminate an NDA after 12 months. We outline the key features of the Bill below.
An NDA as defined in the Bill
An NDA is defined in the Bill as a contract or other agreement (or any part of one), the purpose or effect of which is to stop a person who is a party to the agreement from disclosing certain information (regardless of whether that purpose or effect is achieved directly or indirectly). The Bill expressly provides that an NDA may include both a non-disclosure or non-disparagement clause in a settlement agreement.
An NDA will be considered a ‘workplace NDA’ for the purposes of the Bill if the agreement is between a complainant and the complainant’s employer and/or the respondent, and the agreement relates to disclosures of ‘material information’ about workplace sexual harassment. ‘Material information’ means the identity of the respondent and any details of the conduct constituting the sexual harassment.
As a Victorian bill, the Bill is directed at complainants who usually work in Victoria or who are based in Victoria for the purposes of their work, although the Bill also contemplates other circumstances in which the workplace sexual harassment may be connected to Victoria (including where the employer’s principal place of business is in Victoria, or, if the connection to a particular jurisdiction cannot be established, where the workplace sexual harassment allegedly occurs in Victoria). It extends to employees, contractors and volunteers.
Entering an NDA – complainant choice
Before parties can enter an enforceable NDA, several ‘preconditions’ must be satisfied, as follows:
- the complainant must request to enter into the NDA;
- it must be the complainant’s “express wish and preference” to enter into the NDA;
- after requesting an NDA, but before entering into it, the complainant must be given a copy of the ‘workplace non-disclosure agreement information statement’ (which is an information statement still to be developed, which will cover matters such as the complainant’s right to seek legal advice and to terminate the NDA);
- the complainant must have at least 21 days to review the NDA before entering into it (although the complainant can request a shorter review period or waive the review period altogether); and
- before entering the NDA, each party must acknowledge through an approved form that these preconditions have been met.
The Bill also requires the NDA to be written in plain language and that the complainant receives a written copy of the signed agreement and written acknowledgement of the preconditions.
Critically, neither the complainant’s employer nor the respondent can exert undue influence or pressure on a complainant to enter, or request to enter, an NDA. As referenced in the explanatory memorandum to the Bill, this means, for example, that an employer cannot offer to resolve a matter for a greater settlement sum in exchange for the complainant agreeing to an NDA. While we do not consider this to mean an employer is prevented entirely from suggesting an NDA to a complainant, clearly such discussions will need to be navigated very carefully in light of these limitations.
If any of these preconditions are not met, the NDA will not be enforceable against the complainant to the extent the NDA has the purpose or effect of preventing the complainant from disclosing the respondent’s identity or the conduct comprising the sexual harassment.
A term of an NDA is also unenforceable if it has the purpose or, if enforced, would have the effect of, requiring a complainant to pay an amount to another party to the agreement on the basis that the NDA is unenforceable or is terminated. This is intended to ensure that a complainant is not subject to penalties or required by another party to repay compensation if they terminate an NDA or issue a breach notice (see further below).
‘Protected information’ – an important carve out
Importantly, even if the relevant preconditions are not met or an NDA is otherwise not enforceable, certain ‘protected information’ will nonetheless be safeguarded, being:
- the amount of any financial compensation payable in respect of the sexual harassment; and
- the respondent’s identity if they were under 18 years old at the time the sexual harassment occurred.
Permitted disclosures – disclosures that can never be the subject of an NDA
In recognition of a complainant’s right to make disclosures to certain people and bodies to support their recovery and engage with relevant authorities, the Bill permits complainants to make ‘permitted disclosures’, despite the existence of an NDA. Broadly, this includes disclosures to Victoria Police, health and legal professionals, government authorities and investigation bodies. A complainant will also be able to make disclosures to family members or friends for the purposes of personal support, providing those people agree to keep the matters confidential.
Any NDA terms purporting to prevent the complainant from making permitted disclosures will not be enforceable.
Breach notices – rendering an NDA unenforceable with respect to ‘material information’
The Bill establishes procedures for a complainant to give notice to the other parties to an NDA if any of the preconditions outlined above are not met, in the form of a written breach notice. On receipt of a breach notice, the recipient(s) can apply to the Industrial Division of the Magistrates’ Court of Victoria for an order that the preconditions for the NDA were in fact met. Such an application must be made within 30 days of receipt of a breach notice.
If an application to the Court is not made (or if an application is unsuccessful), the preconditions for the NDA are taken not to be met, with the effect that the NDA is not enforceable against the complainant to the extent it prevents the complainant from disclosing ‘material information’, being information about the identity of the respondent and the nature of the sexual harassment.
The breach notice regime is intended to reduce the burden on a complainant to issue proceedings in the case of non-compliance, while providing an employer or respondent the opportunity to challenge the breach notice in the Magistrates’ Court.
Termination of NDAs
The Bill allows a complainant to terminate an NDA after a minimum of 12 months from signing, with a minimum of seven days’ notice in the prescribed form. This termination right exists even if all of the preconditions are met and the parties abide by the terms of the NDA. These provisions have been introduced in recognition of victim-survivors who participated in the Taskforce’s consultation process, many of whom spoke about wanting to terminate an NDA because of the impact it was having on their mental health, including limiting their ability to process trauma.
Importantly, however, the termination of an NDA would have effect only to the extent the NDA had the purpose or effect of preventing a party from disclosing the identity of the respondent and the conduct that constituted the sexual harassment.
Further, if an NDA is unenforceable (whether due to preconditions not being met or otherwise) or is terminated, that will not affect the validity or enforceability of the rest of the agreement or any broader settlement agreement. This means that other terms, such as a release from liability, remain valid.
Agreements between an employer and the respondent
An employer will be prohibited from entering an NDA with a respondent that prevents:
- an investigation into workplace sexual harassment; or
- the employer from disclosing material information about the workplace sexual harassment to a prospective employer of the respondent.
Disclosure to prospective employers would be at the employer’s discretion and is limited to where allegations of sexual harassment have in fact been substantiated by the employer.
This provision is clearly intended to limit harassers from ‘resurfacing’ at another workplace following an investigation into their conduct.
Non-disclosure terms in employment contracts
Non-disclosure terms in employment contracts which prevent a worker from disclosing the identity of the respondent or the conduct that constituted sexual harassment will not be enforceable. This provision is intended to prohibit employment contracts being used to circumvent compliance with the Bill.
What do you need to do now? | Practical considerations for employers
There are several procedural steps which employers will need to take to negotiate a compliant NDA, which we have explored in the earlier part of this article.
However, perhaps more challenging for employers is the fundamental shift in approach the Bill heralds, which in our view will necessitate a body of work across employers’ HR/ER and legal teams.
At a minimum, employers will need to ensure that people managers, HR/ER professionals and in-house legal teams receive training on the new requirements. In particular, employers must be cognisant of the strict preconditions, including not exerting inadvertent pressure on complainants (which may be misguidedly seen as ‘hard bargaining’ or ‘getting a deal done’). In addition, policies, procedures and guidelines dealing with the resolution of sexual harassment complaints will need to be reviewed and potentially amended to align with the rights to be afforded to complainants.
The Bill is focused on Victoria, which raises interesting questions for employers with a national presence, including whether the business should update its policies and approaches to resolving sexual harassment matters on a national basis, or whether it ‘goes it alone’ in Victoria. While the provisions of the Bill will have no legal application interstate, employers may nonetheless face pressure from employees and their industrial or legal representatives to align, at least in part, with the Victorian position in order to take a victim-centred approach.
Employers should also plan for the eventuality that NDAs will be terminated, and carefully consider how they will manage the resultant attention, which, depending on what is disclosed, might include the media, trade unions and potentially safety regulators. Thoughtful planning regarding transparency and openness about the resolution of sexual harassment matters will be undoubtedly serve employers well ahead of the Bill’s commencement.
