Thursday, 30 October 2025

 Danny PEARSON (Essendon – Minister for Economic Growth and Jobs, Minister for Finance) (10:12): In accordance with the Charter of Human Rights and Responsibilities Act 2006, I table a statement of compatibility in relation to the Restricting Non-disclosure Agreements (Sexual Harassment at Work) Bill 2025:

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter), I make this statement of compatibility with respect to the Restricting Non-disclosure Agreements (Sexual Harassment at Work) Bill 2025 (the Bill).

In my opinion, the Bill, as introduced to the Legislative Assembly, is compatible with the human rights protected by the Charter. I have this opinion for the reasons outlined in this statement.

Overview of the Bill

The purpose of the Bill is to promote the health, safety and welfare of persons at work by restricting:

•   the circumstances in which non-disclosure agreements (NDAs) relating to workplace sexual harassment can be entered into;

•   the terms that may be included in NDAs relating to workplace sexual harassment; and

•   the enforceability of NDAs relating to workplace sexual harassment.

The Bill implements recommendation 10 of the report of the Victorian Ministerial Taskforce on Workplace Sexual Harassment, which recommended that the Victorian Government introduce legislative amendments to restrict the use of NDAs in relation to workplace sexual harassment cases.

The objects of the Bill are to:

•   reduce the incidence of NDAs being used to conceal workplace sexual harassment;

•   protect and empower workers who are subjected to workplace sexual harassment (referred to in the Bill as complainants), recognising their vulnerability; and

•   address power imbalances between complainants and employers and other persons in the negotiation of NDAs.

Human rights issues

The human rights protected by the Charter that are relevant to the Bill are:

•   the right to equality before the law (section 8(2) and (3) of the Charter);

•   the right to privacy and reputation (section 13);

•   the right to freedom of expression (section 15);

•   the right to protection of children (section 17(2));

•   property rights (section 20); and

•   the fair hearing right (section 24(1)).

The Bill seeks to balance these rights, to the extent that they are held by both complainants and respondents. Each right is outlined below, before I outline why I consider that two key aspects of the Bill – relating to the information that can be disclosed in NDAs and their enforceability – are compatible with these human rights.

Information that can be disclosed in NDAs

Clauses 11 and 12 of the Bill provide that a workplace NDA entered into between a complainant (ie, a worker subject to, or allegedly subject to, sexual harassment) and the complainant’s employer (or the respondent) must not prevent a complainant from disclosing material information about workplace sexual harassment (subject to the exceptions in each clause, as I discuss below) to a person or body specified in Schedule 1. Material information is defined in clause 3 to mean the following:

•   the identity of the respondent (ie, the person who committed, or allegedly committed, the sexual harassment);

•   any details about the conduct constituting the commission, or alleged commission, of the sexual harassment.

The Bill also carves out certain information from the requirement that a workplace NDA permit a complainant to disclose material information to a person or body specified in Table 1 in Schedule 1, providing that the requirement does not apply to material information that is protected information: clause 11. Specified bodies or persons in Table 1 in Schedule 1 include Victoria Police, health professionals, legal practitioners, government authorities and investigation bodies, and a friend or family member for the purposes of obtaining personal support (provided that they agree to keep any material information disclosed to them confidential).

Protected information is defined in clause 3 as:

•   the amount of any financial compensation payable in respect of the sexual harassment; and

•   the identity of any respondent who is under 18 years of age at the time of the commission, or alleged commission, of the sexual harassment.

The Bill also provides that the requirement that a workplace NDA permit a complainant to disclose material information to a person or body specified in Table 2 in Schedule 1 (ie, certain government bodies, including human rights commissions) does not apply to material information that is protected information, but also to the identity of the respondent (or the complainant’s employer): clause 12. Finally, clause 13 provides that a workplace NDA must not prevent a complainant from disclosing the amount of any financial compensation payable in respect of the workplace sexual harassment to the financial persons and bodies specified in Table 3 in Schedule 1.

By requiring that a workplace NDA permit a complainant to disclose the identity of the respondent or any details about the conduct constituting the sexual harassment (subject to exceptions, including in relation to protected information), clauses 11 and 12 of the Bill engage the rights to equality before the law (section 8(2) and (3) of the Charter), privacy and reputation (section 13), freedom of expression (section 15) and protection of children (section 17(2)).

Equality before the law

Section 8(2) of the Charter provides that every person has the right to enjoy their human rights without discrimination. Section 8(3) provides that every person is equal before the law and is entitled to its equal protection without discrimination. Section 8(3) also provides that every person has the right to equal and effective protection against discrimination.

Under section 8(2) and (3) of the Charter, discrimination relevantly includes indirect discrimination, which occurs if a person imposes an unreasonable requirement, condition or practice that has, or is likely to have, the effect of disadvantaging persons with a protected attribute including, relevantly, sex.

I consider that workplace sexual harassment is a form of discrimination on the ground of sex as sexual harassment is recognised as disproportionately affecting women and girls. NDAs, which often include keeping confidential the existence of the complaint and the alleged harassment, are an accepted practice in settling workplace sexual harassment complaints out of court. This practice creates a culture of secrecy and a disincentive for employers to engage in measures to prevent workplace sexual harassment.

By restricting the circumstances in which NDAs relating to workplace sexual harassment can be entered into, the terms that may be included and their enforceability, the Bill operates as a safeguard against practices that may have a discriminatory effect on women and girls, and promotes their right (as well as the right of other complainants) to equality before the law under section 8(2) and (3) of the Charter.

Privacy and reputation of respondents

Section 13(a) of the Charter prohibits unlawful or arbitrary interferences with a person’s privacy. The right to privacy has been interpreted broadly by the courts to include protection of a person’s physical and psychological integrity, their individual and social identity and their autonomy and inherent dignity. Arbitrary interferences are those that are capricious, unpredictable or unjust, as well as unreasonable because they are not proportionate to a legitimate aim sought. An interference with privacy can still be arbitrary even though it is lawful.

Section 13(b) of the Charter prohibits unlawful attacks on a person’s reputation.

By requiring that a respondent’s identity be disclosable under a workplace NDA, together with personal details that may be relevant to them (ie, material information), that respondent’s privacy and reputation will be interfered with.

In respect of section 13(a) of the Charter, I consider that any interference with a respondent’s privacy would be in accordance with law and proportionate to the legitimate aim of protecting and empowering workers who are subjected to workplace sexual harassment, and reducing the incidence of NDAs being used to conceal workplace sexual harassment. Further, the scope of material information is limited to a person’s identity and details connected to the relevant conduct, which in effect is information already known to the complainant, which, if not for an NDA, the complainant would otherwise be entitled to disclose to others. In other words, the requirement does not extend to making disclosable other personal information which may be private (such as addresses).

Finally, permitted disclosures under Division 2 of Part 3 of the Bill must be made to a person or body specified in Schedule 1. As described above, this list of bodies includes enforcement, oversight and investigative bodies, health and legal professionals, and friends and family providing personal support and making an undertaking of confidentiality. I consider it reasonable and justified to permit material information in relation to the relevant sexual harassment to be disclosed to these people and bodies specified in Schedule 1. This is because the class of people and entities have been carefully confined to the purpose of ensuring that complainants are not prohibited from reporting the sexual harassment to relevant authorities, and are able to access adequate support. Further, some people and bodies specified in this clause would be public authorities under the Charter.

Accordingly, under section 38, they would be obliged to act compatibly with a respondent’s right to privacy in relation to information that they receive by operation of the Bill.

In respect of section 13(b) of the Charter, the disclosure of a respondent’s identity would not constitute an unlawful attack on that person’s reputation. This is because clause 11 of the Bill provides a lawful basis for the disclosure of a respondent’s identity, as part of material information.

Any interference with a respondent’s rights under section 13 of the Charter is also justified because it promotes a complainant’s rights under section 13(a), as explained in the section below.

Privacy and freedom of expression of complainants

In addition to privacy rights discussed above, section 15(2) of the Charter provides that every person has the right to freedom of expression, which includes the freedom to seek, receive and impart information and ideas of all kinds.

In respect of section 13(a) and complainants, regulating the entry into a workplace NDA promotes a complainant’s right to protection from unjustified interference with their psychological integrity, including personal security and mental stability, including in their workplace. I understand that complainants can find the process of negotiating NDAs traumatic and distressing, and that they can experience negative mental health impacts and career setbacks as a result of signing them. The Bill also allows a complainant’s privacy and anonymity to be protected by an NDA, when it is the complainant’s choice, enhancing the victim-centricity of the response and compatibility with section 13(a) of the Charter.

In respect of section 15 of the Charter, the requirement to disclose certain information promotes a complainant’s freedom to impart information, including material information as defined in the Bill. The exclusion in relation to protected information limits the right by preventing disclosure of a respondent’s identity if the respondent is under 18 years of age at the time of the commission (or alleged) commission of the sexual harassment and, pursuant to clause 12, the identity of a respondent to certain government bodies. This is consistent with the lawful restriction on the right to freedom of expression in section 15(3) of the Charter, being that the right may be subject to lawful restrictions reasonably necessary to respect the rights and reputation of other people, including children.

Protection of children

Section 17(2) of the Charter provides that every child has the right, without discrimination, to such protection as is in the child’s best interests and is needed by the child by reason of being a child.

The exclusion from a workplace NDA of the identity of any respondent who was a child at the time of the commission (or alleged) commission of the sexual harassment promotes the right in section 17(2) of the Charter to such protection as is in the child’s best interests and needed by the child. I consider that the policy balance of protection of the complainant versus protection of a child, who is the alleged perpetrator, falls in favour of the child. I further consider that the protection of a child’s identity would be in the child’s best interests. The protection of a minor’s identity recognises a child’s cognitive and emotional immaturity and increased vulnerability, as compared to adults.

Enforceability of NDAs and the rights to fair hearing and property

Section 24(1) of the Charter provides that a person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing. Part of the right to a fair hearing, protected in section 24(1), is the common law right to unimpeded access to the courts.

Additionally, section 20 of the Charter provides that a person must not be deprived of their property other than in accordance with law. While the Victorian courts have not determined whether the right to bring a claim against the State constitutes ‘property’ for the purposes of section 20 of the Charter, the Supreme Court has indicated that the term should be ‘interpreted liberally and beneficially to encompass economic interests’. This could include contractual rights and accrued causes of action. Section 20 requires that powers which authorise the deprivation of property are conferred by legislation or common law, are confined and structured rather than unclear, are accessible to the public, and are formulated precisely.

Clauses 14 and 15 of the Bill provide that a workplace NDA is not enforceable against a complainant:

•   to the extent that a workplace NDA has the purpose or, if enforced, would have the effect of preventing the complainant from disclosing material (but not protected) information, or if the preconditions to entering into a workplace NDA listed in clause 8 of the Bill have not been met: clause 14; and

•   to the extent that a workplace NDA, if enforced, would otherwise have the effect of preventing the complainant from making a permitted disclosure: clause 15.

As the Bill restricts a respondent’s right to enforce a workplace NDA against a complainant in the above circumstances, this could have the effect of altering or extinguishing an accrued cause of action for breach of contact. Such an outcome could constitute a limit on access to the courts (under section 24(1) of the Charter) as well as potentially deprive a respondent of a property right (under section 20).

In relation to any limit on access to a court, I consider it would be reasonably justified and necessary to address the power imbalances between workers and employers and other persons in negotiations to enter into NDAs relating to workplace sexual harassment. The Bill provides for protections and preconditions for parties to enter into workplace NDAs, providing procedural fairness to those parties. The Bill also includes protections to mitigate against any limitation to section 24(1): clause 17 provides that a person who receives a breach notice from a complainant, stating that any preconditions to entering into a workplace NDA have not been met, may apply to the Industrial Division of the Magistrates’ Court for an order that the preconditions were met. Finally, the effect of this provision is limited to these particular matters, and does not affect the broader enforceability of such agreements.

In relation to any deprivation of property, the Bill clearly sets out the circumstances in which an NDA is unenforceable, and is not arbitrary, for the reasons outlined above.

Hon. Danny Pearson

Minister for Finance

 Danny PEARSON (Essendon – Minister for Economic Growth and Jobs, Minister for Finance) (10:12): I move:

That this bill be now read a second time.

I ask that my second-reading speech be incorporated into Hansard.

Incorporated speech as follows:

Non-disclosure agreements (NDAs) were meant to protect trade secrets. These days they have become an entrenched practice in settling workplace sexual harassment complaints.

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.

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

That is why I am introducing a Bill to restrict the use of NDAs in workplace sexual harassment cases. The Bill does 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.

The Bill will acquit recommendation 10 of the report of the Victorian Ministerial Taskforce on Workplace Sexual Harassment and contribute to Government action to improve prevention of workplace sexual harassment and assist in keeping Victorian workers and workplaces safe.

Background

In 2021, the Victorian Government established the Victorian Ministerial Taskforce on Workplace Sexual Harassment to develop reforms that will better prevent and respond to sexual harassment in workplaces. In July 2022, the Victorian Government published its response to the Taskforce’s report, accepting in-part, in full or in principle 21 of the 26 recommendations. The Victorian Government provided in principle support for recommendation 10 – to introduce legislative amendments to restrict the use of NDAs in relation to workplace sexual harassment cases. The Taskforce noted that NDAs are often misused to silence victims, protect employer reputations, and avoid full liability. The Taskforce also noted that NDAs can be used to hide serial offending and offenders. The Australian Human Rights Commission has also recommended legislating to restrict the use of non-disclosure agreements in workplace sexual harassment cases.

NDAs have become an accepted practice in settling workplace sexual harassment complaints out of court. Confidentiality and non-disparagement terms are considered standard terms of settlement agreements. In such cases, NDAs are used to keep the details of the settlement arrangement confidential, and importantly often include keeping the existence of the complaint and the alleged harassment confidential. This means perpetrators often face no consequences and may continue their behaviour, a trend which is exacerbated by the fact that the public and government are unable to understand the extent of the problem. The use of NDAs also creates a disincentive for employers to engage in measures to prevent workplace sexual harassment.

NDAs are largely unregulated in Australia, either in workplace sexual harassment or more generally. Best practice for the use of NDAs in workplace sexual harassment matters is currently outlined in guidance materials.

Internationally, several jurisdictions have moved to regulate the use of NDAs. Examples of leading approaches include those enacted in Ireland and Canada’s Prince Edward Island. These jurisdictions have regulated the use of NDAs by creating a model centred on complainant choice. This effectively means that an employer and a worker cannot enter an NDA unless it is requested by the worker. A number of American states have also legislated to regulate NDAs, with approaches ranging from complete bans to a range of limitations regulating aspects of NDA use. The United Kingdom has recently introduced legislative amendments to ban NDAs related to certain forms of work-related harassment and discrimination.

In developing this Bill, the Government has undertaken wide-ranging consultation including hearing directly from workers who have signed NDAs.

The Bill in detail

Requirements for workplace non-disclosure agreements

There are significant power imbalances in the NDA process which often leave victim- survivors of workplace sexual harassment feeling intimidated and forcibly silenced.

The Bill sets out preconditions which must be met prior to entering a workplace NDA, including that the NDA is requested by a complainant and it is their express wish and preference to enter into one. In practice, this means that an employer or respondent can not propose an NDA which requires a complainant to keep confidential material information about an incident of workplace sexual harassment, unless this is requested by the complainant. The Bill will not prevent employers settling a workplace sexual harassment claim in exchange for a complainant agreeing to legally release the employer from liability

and further action, and settlement amounts can still be kept confidential at the request of the employer. In circumstances where the respondent is under 18 years of age, an employer can also request an NDA to keep their identity confidential. This is in recognition of a child’s cognitive and emotional immaturity and increased vulnerability compared to adults.

Complainant choice is a core component of other leading international approaches such as those in Canada and Ireland, and is a critical element in addressing power imbalances and ending the practice of using NDAs as the default solution to addressing sexual harassment in the workplace. It shifts the focus to first considering whether the NDA is beneficial to the complainant and helps them to recover – as opposed to the current approach where the first consideration is the employer’s interests and reputation.

The Australian Human Rights Commission Guidelines on the Use of Confidentiality Clauses in the Resolution of Workplace Sexual Harassment Complaints and the Victorian Equal Opportunity and Human Rights Commission Guideline Preventing and responding to workplace sexual harassment both note that as a matter of best practice consideration should be given to whether confidentiality is requested by the complainant, and whether there is a clear reason why it is required.

To ensure that a workplace NDA is only entered into where the complainant wants to enter into one, it is also a precondition that the employer or respondent (or someone acting on their behalf) must not exert undue influence or pressure on a complainant in relation to their decision to enter into a workplace NDA. This might include, for example, an employer suggesting that a complainant ‘won’t get a job’ in the industry again if they do not request an NDA; or an employer proposing a lower settlement amount without an NDA, and a higher settlement amount with an NDA in an attempt to influence a complainant to request an NDA.

If a complainant has requested an NDA, the Bill requires as a precondition that a complainant is provided with a ‘workplace non-disclosure agreement information

statement’ and a review period during which time the complainant can consider the NDA and seek legal advice if they wish. The review period must be at least 21 days but a complainant can request a lesser period or waive the review period if they wish. For example, if a complainant does not wish to delay settlement and is confident they understand the terms and implications of an NDA. The complainant must also sign a form to acknowledge and evidence that certain preconditions have been met.

These preconditions will ensure that NDAs are not being used as a matter of course in the resolution of sexual harassment matters and complainants have the opportunity to consider and understand the implications of entering an NDA.

If a complainant enters a workplace NDA, it is important that they are still able to make disclosures to certain persons and bodies to support their recovery and engagement with relevant authorities. The Bill provides a comprehensive list of persons to whom a ‘permitted disclosure’ can be made, despite the existence of an NDA. Broadly, this includes Victoria Police, health professionals, legal professionals, government authorities and investigation bodies. A complainant will be able to make disclosures to family members, and friends for the purposes of personal support and providing they agree to keep any material information disclosed confidential.

The Bill also requires that an NDA be written in plain language and that the complainant is provided with a signed copy of the NDA.

If the preconditions to entering a workplace NDA have not been met, the Bill provides that a complainant cannot be prevented from disclosing material information about the sexual harassment. If the preconditions have been met, an employer or respondent can enter into a workplace NDA with a complainant to keep confidential information about the workplace sexual harassment. However, a complainant will be able to disclose information about the sexual harassment to specified persons or bodies (for example, police, medical and legal

professionals, and government authorities). This is to ensure that workers are not prohibited from reporting to relevant authorities and to enable access to proper support.

Termination of non-disclosure agreement

During consultation many victim-survivors who had signed an NDA spoke about wanting to end their NDAs given the impact it was having on their mental health, including preventing them from processing trauma. A survey on Engage Victoria asked respondents whether, having signed an NDA, if they had later wanted to end it – 93 per cent said yes.

Evidence suggests that complainants often sign NDAs in a state of distress, and do not comprehend at the time the long-lasting implications of confidentiality. It is only after they have had time to process their experience that they comprehend what they have agreed to do and realise how important their ability to speak out is.

To address this, the Bill will enable a complainant to elect to terminate an NDA after a minimum of 12 months from signing. If a mutual NDA has been entered into which imposes confidentiality obligations on both an employer and worker, this would end the confidentiality obligations imposed on both parties (unless the parties agree that the employer retains their confidentiality obligations, for example to protect the worker’s privacy).

If a complainant elects to end the NDA they must give the other party a minimum of seven days’ notice, and the notice must be in an approved form. If a complainant does terminate an NDA this would not affect the validity and enforceability of a settlement agreement or any financial compensation that has been paid.

This is not intended to prevent employers resolving workplace sexual harassment claims out of court if they wish. An employer may wish to agree to settle a claim in exchange for a complainant agreeing to legally release the employer from liability and further action, and avoidance of a costly and public trial.

Application of the Bill

To establish the relevant connection to Victoria the Bill will apply to complainants who are usually based in Victoria with respect to their work. This is similar to the approach adopted for Victoria’s workers compensation laws.

The Bill will also apply if any part of a complaint relates to workplace sexual harassment. For example, if a complainant entered an NDA in settlement of discrimination and sexual harassment, that NDA would be unenforceable to the extent that it had the purpose or effect of preventing the complainant from disclosing material information about the sexual harassment. This will avoid confusion for complainants about what can and cannot be disclosed where workplace sexual harassment intersects with other forms of misconduct.

The Bill also provides that non-disclosure terms in employment contracts which have the purpose or effect of preventing a worker from disclosing material information about workplace sexual harassment will not be enforceable. This provision will ensure that employment contracts are not misused to avoid compliance with the Act.

Agreements between an employer and the respondent

As part of the terms of a respondent’s departure from an organisation, employers will sometimes agree that a finding of sexual harassment is kept confidential. This can enable repeat offenders to continue misconduct in a new workplace. The Bill provides that a complainant’s employer cannot enter into an NDA with a respondent that prevents an investigation into workplace sexual harassment or prevents the employer from disclosing material information about the workplace sexual harassment to a prospective employer of the respondent. This disclosure to prospective employers would be at the employer’s discretion and limited to where the allegations of workplace sexual harassment have been substantiated by the employer.

Breach notice and compliance orders

To provide a means for a complainant to action a breach of the legislation, the Bill establishes procedures for a complainant to give the other party to the workplace NDA a ‘breach notice’ if any of the preconditions have not been met. The notice must state the reason for the notice, advise the other party of their right to challenge the notice, and be in an approved form. Once an employer receives such a notice, they will have 30 days to make an application to the Industrial Division of the Magistrates’ Court of Victoria for an order that the preconditions were met. If an application is not made within 30 days, then the preconditions are taken to have been met and an NDA would not be binding on the complainant.

The breach notice regime reduces the burden on a complainant to issue proceedings in cases of non-compliance, whilst also providing an employer or respondent with the opportunity to challenge a breach notice in the Magistrates’ Court.

Commencement

The Act will commence six months after passage of the Bill. This will enable time to prepare supporting regulations, guidance materials, and the mandatory information statement and to communicate the reforms to employers, legal practitioners and workers.

I commend the Bill to the house.

 James NEWBURY (Brighton) (10:12): I move:

That the debate be adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned for two weeks. Debate adjourned until Thursday 13 November.