Legislation targets ‘culture of secrecy’ with NDA reform

The bill aims to dismantle the culture of secrecy that allows perpetrators to reoffend and shields employers from accountability.  

In her second reading speech Member for Northern Victoria Jaclyn Symes said NDAs have traditionally been used to protect trade secrets, but in recent years they have become an entrenched practice in settling workplace sexual harassment complaints often silencing victim-survivors and concealing patterns of misconduct. 

The bill, she said, would ‘not place a blanket ban on NDAs, recognising that in some instances these can be the preference of a complainant; rather the bill places restrictions on the circumstances in which workplace NDAs can be entered into’. 

'These victims – overwhelmingly women – are being asked to sign NDAs, as part of the settlement of their complaint. What is actually being bought is their silence – compelling victim-survivors to stay silent, even to their family and friends. Sometimes, even their doctor or psychologist,’ she said. 

‘This culture of secrecy hides serial offending and prioritises employer reputations over prevention of workplace sexual harassment and victim recovery.’ 

Richard Welch, Member for North-Eastern Metropolitan said the opposition supported the very necessary and very helpful bill. 

‘Sexual harassment is a major problem in Victorian workplaces. In its wake are untold stories of trauma, scars, ruined dreams, a burning sense of injustice and ultimately bitterness and rightful anger,’ he said. 

Nonetheless he said he was concerned that allowing the victim the unilateral right to repudiate the NDA after 12 months could have unintended cosequences.  

‘It massively ups the risk for the business, because in making the settlement in good faith and putting it under an NDA, they now know that the NDA can be repudiated at any time. So from a practical standpoint, from their perspective, the NDA effectively has no value; it cannot be trusted.’

“ 'What is actually being bought is their silence – compelling victim-survivors to stay silent, even to their family and friends.' ”

Jaclyn Symes , Member for Northern Victoria

Ryan Batchelor, Member for Southern Metropolitan said the laws were particularly beneficial for women in the workplace since four out of five victims of sexual harassment at work are women. 

‘The bill means we can put pressure on the employer to do the right thing and give relief, particularly to women in the workplace. The bill means that employers cannot intimidate, threaten or financially incentivise an NDA, and it shows that Victoria is leading the nation and the world in what we are doing,’ he said. 

North-Eastern Metropolitan MP Nick McGowan said eliminating these non-disclosure agreements would improve transparency 

‘It is the greatest disinfectant a democracy has to ensure that bad behaviour and bad decisions are not covered up and that those responsible for those decisions are held accountable. And that is absolutely critical,’ he said.

Member for South-Eastern Metropolitan Rachel Payne noted the chages were in line with what most of those with experience of signing such agreements wanted.

'When consultation was done on NDAs via Engage Victoria, it showed that 93 per cent of respondents who signed an NDA later wanted to end it. This bill now gives them that option,' she said.

“ ‘It is the greatest disinfectant a democracy has to ensure that bad behaviour and bad decisions are not covered up and that those responsible for those decisions are held accountable.' ”

Nick McGowan, Member for North-Eastern Metropolitan

Georgie Purcell, Member for Northern Victoria, said legislating so that sexual harassment survivors can speak out means we then should be 'willing to do that without question, without bias, without stigma and without assumption'. 

'I hope that this piece of legislation is only just the beginning to making Australian workplaces better for young women and girls as they grow up and start their professional careers,' she said.

The debate is available to read in Hansard.

For more detail, including a summary of the main provisions of the bill, responses from various stakeholders and a jurisdictional comparison go to the Bill Brief prepared by the Parliamentary Library.