The Australian Human Rights Commission (AHRC) continues its efforts to explore ways to make Australian workplaces safer and shift the approach to addressing workplace sexual harassment from reactionary to proactive. The AHRC’s latest ‘listening and reform’ project builds on its seminal Respect@Work report released in March 2020 (Respect@Work Report) that acted as the key catalyst for legislative change to the Sex Discrimination Act 1984 (Cth) (SDA) and the introduction of the positive duty on employers to take all reasonable steps to eliminate certain unlawful behaviours in the workplace (Positive Duty) (see related KWM Article).
The AHRC has now facilitated a disclosure process that enabled victim-survivors to have their experiences heard and documented. This disclosure process focused closely on communities whose experiences of sexual harassment may also intersect with other forms of discrimination. The outcome of this process was the AHRC’s 2025 “Speaking from Experience Report” (the Report) which delivers on recommendation 57 of the Respect@Work Report and focuses on augmenting legal frameworks to better protect all workers from sexual harassment.
Most significantly for employers, the AHRC advocates for legislative reform regarding the use of Non-Disclosure Agreements (NDAs) in sexual harassment cases and the introduction of new financial penalties for non-compliance with the Positive Duty. With recommendations for further strengthening of the law from the AHRC, it is clear that organisations should be proactively addressing these issues and in particular, considering how to navigate the use of NDAs effectively to position themselves ahead of the curve in compliance and best practice.
Snapshot of "Speaking from Experience" Report
The Report includes 11 recommendations following extensive consultation with over 300 victim-survivors of sexual harassment from diverse backgrounds. These recommendations focus on the ‘gaps’ in knowledge of lived experience of sexual harassment and intersectionality and the changes workers from these diverse backgrounds consider is necessary to make workplaces safer.
Among the recommendations were suggestions for a national media campaign, a specialist organisation to deliver education, the removal of barriers for victim-survivors to be heard and for workers to access support. The most significant of the recommendations for employers, however, relate to:
Restrictions on the use of NDAs in sexual harassment cases is now firmly on the radar for Federal legislative reform following the AHRC’s recommendation 8.
NDAs continue to remain prevalent in the financial settlement of sexual harassment claims. The Report suggests there is an inherent contradiction faced by victim-survivors who are encouraged to speak out and report sexual harassment yet are later advised against discussing their experiences. As a consequence, there are increasing concerns among victim-survivor advocates that there is an over-use of NDAs contributing to a 'culture of silence' (see related KWM article).
The practice of using NDAs is often raised as problematic and advocates suggest it runs counter to the Positive Duty to prevent sexual harassment on the basis that it discourages reporting. As organisations are now required to go beyond merely responding to incidents after they arise, to proactively preventing sexual harassment from occurring, this requires organisations to address the underlying systemic issues that facilitate an environment where sexual harassment is possible. The AHRC considers that restricting the use of NDAs will support organisations’ compliance with the Positive Duty.
The AHRC’s recommendation is in line with the Irish Employment Equality Act 1998 which was amended in late 2024 to prohibit employers from entering into an NDA with an employee who has experienced or made allegations of sexual harassment or discrimination unless the employee requests an NDA.[1]
Under the Irish reforms, if an NDA is entered into, the agreement will only be enforceable if specific requirements are met, including the offering of independent legal advice, absence of undue influence, no adverse impact on third-party health and safety or the public interest, inclusion of a future waiver option, and a set, limited duration. An employer who does not comply with these requirements is guilty of an offence, and the agreement will be null and void.[2]
In Victoria, the State government has been progressing potential legislative reform to restrict the use of NDAs in sexual harassment cases. Although the legislation has not been developed, it has been suggested that an approach similar to the Irish model will be adopted in Victoria.[3]
The AHRC highlights that Australia now lags behind other countries such as the United States, United Kingdom, Ireland and Canada in legislative reform to restrict the use of NDAs in circumstances of sexual harassment and that this may be limiting the transparency and the accountability of organisations to drive real change.
To do so the AHRC considers the following must be areas of genuine focus:
Proper education on the use and impacts of NDAs – including for legal practitioners – as well as the broader nature, drivers and impacts of sexual harassment
Accessible legal advice regarding the effects of confidentiality for individuals
An evaluation of the Respect@Work reform implementation to identify areas of education and training that can be extended and strengthened – including for the legal profession, judges, magistrates and tribunal members, as well as tertiary institutions, training providers, human resource practitioners, company boards, managers, and senior executives
The AHRC also referenced the threat of defamation litigation against victim-survivors as an ongoing deterrent to speaking out about sexual harassment. In particular, the AHRC recognised a legislative gap in Australia, as compared to other jurisdictions. By way of example, some states in the United States and countries across Europe have laws that protect victim-survivors from defamation claims brought by their alleged harasser and provide defamation immunity to encourage victim-survivors to speak up.
Section 14B Employment Equality Act 1998
Section 14B(5)-(6) Employment Equality Act 1998
Recommendation 11 suggests amending section 49 of the Australian Human Rights Commission Act 1986 (Cth) to enable better information sharing between regulators.
Currently this section operates as a secrecy provision and restricts the AHRC's ability to share information with other agencies. The intent behind this recommendation is for the AHRC to share information with other agencies who deal with sexual harassment such as Fair Work agencies and work, health and safety regulators to ensure the most efficient use of evidence and resources.
Similar practices occur across other government agencies and regulators in Australia. For example, since 2004 ASIC and the ACCC have been party to a Memorandum of Understanding (MoU) to facilitate the sharing and exchange of information, the referral of matters and the delegation of powers between the regulators. The MoU allows ASIC and the ACCC to liaise, cooperate and assist each other in performing joint enquiries and provide for the exchange of confidential information. The AHRC suggests a similar mechanism and approach to information-sharing could be used to facilitate a more efficient, effective and employee-centric approach to sexual harassment.
Underpinning this recommendation is a further suggestion of an independent statutory review of the Positive Duty to occur in 2026. This would include publishing by the AHRC of de-identified data about its compliance and enforcement activities relating to the Positive Duty.
There is also a related suggestion that organisations should be able to access information about whether a prospective employee has a record of established, repeated sexual harassment. However, the AHRC recognised a register of this nature raises significant matters of confidentiality and may challenge the concept of natural justice.
The introduction of civil penalties for breaches of, or repeated failure to comply with, the Positive Duty under the SDA also forms part of the AHRC’s recommendations to address organisational accountability. In particular, the power to seek civil penalties by the AHRC through the courts is seen as a “powerful option for it as a regulator”.
Under the current framework, the AHRC can conduct inquiries into organisations to ensure they are complying with the Positive Duty. Non-compliance can result in the AHRC issuing a ‘compliance notice’, and if non-compliance continues then the AHRC can apply to the Federal Court for an order to enforce compliance. There are also enforcement mechanisms that can be applied to organisations that interfere with the AHRC’s inquiry powers (including potential criminal sanctions for providing false or misleading information and documents).
If broader and more substantive civil penalties are introduced for breaches of the SDA, the AHRC argues they would place greater responsibility on duty holders. In turn, this would shift the responsibility away from individuals to commence legal action, and give regulators the opportunity to do so. This is likely to have a greater impact on organisational compliance.
This recommendation aligns with the Australian Law Reform Commission’s (ALRC) “Safe, Informed, Supported: Reforming Justice Responses to Sexual Violence” report (ALRC Report) that was released in January 2025. Similar to the Report, recommendations 50 and 51 of the ALRC Report propose the introduction of a civil penalty for breaches of the SDA.
Key takeaways
The AHRC’s latest recommendations signal a decisive shift from aspirational compliance with the Positive Duty to tangible accountability. Three themes dominate the AHRC’s position: stronger enforcement levers, deeper regulatory collaboration and the dismantling of secrecy surrounding sexual-harassment settlements. Each, if implemented, will have significant consequences for organisations, boards and those who advise them.
The proposed recommendation for information-sharing would, if enacted, usher in an era of information fluidity between the AHRC, Fair Work agencies and work, health and safety regulators. It would further heighten the importance for organisations to take a proactive and safety-driven approach to discharging the Positive Duty.
Similarly, the potential introduction of the civil-penalty recommendation will place a greater financial cost on inaction. Restrictions on the use of NDAs would also mean organisations will need to re-evaluate certain longstanding approaches, although some large employers have already voluntarily adopted their own limitations on the use of NDAs.
These recommendations are likely to further compel organisations to move beyond paper compliance with the Positive Duty. If the proposed changes become law, organisations will need to deepen their existing prevention and response activities, through the embedding of intersectional safety and prevention into everyday operations, maintaining transparent approaches to the issue of sexual harassment and prioritising victim-survivor agency.
