Thursday, 20 November 2025

 Sonja TERPSTRA (North-Eastern Metropolitan) (14:02): I will continue my contribution on this bill, the Restricting Non-disclosure Agreements (Sexual Harassment at Work) Bill 2025. Just before the break I was commenting on the many women who have experienced sexual harassment in the workplace, and I thanked women in this chamber for recounting their stories, not only some of their own but on behalf of others and their experiences with sexual harassment. I was remarking upon the fact that I have been a legal practitioner, and I have not only worked in the union movement but represented people as a consultant and also as someone who has run their own legal practice and given advice on these matters particularly.

What I was saying before the break was that when we make a decision around wanting to introduce reforms around sexual harassment and the use of NDAs, as we have done, it is really important for employers to make sure they fully buy into and support enacting cultural change, and that means cultural change in the workplace to support anybody who has suffered sexual harassment to come forward and to ensure that they are supported and that they are given the appropriate supports as well.

As I remarked upon before, not only can being sexually harassed be something that is very traumatising but it is often the aftermath and even the leading up to about ‘Do I report? How do I report it? What’s likely to happen to me? Am I going to lose my job as a consequence of this?’ This has been spoken about in this chamber: quite often women who do report end up losing their jobs or they move on because it is just easier to do that.

It will come as no surprise, I think, and I was talking about statistics earlier, that a number of women in this room will have experienced sexual harassment. I have been sexually harassed. I have signed an NDA as well. It is something that I witnessed as a legal practitioner. Working for the union movement, it was pretty de rigueur for the use of NDAs to be signed to resolve any workplace dispute that resulted in litigation, whether it was sexual harassment or anything else.

What has been spotlighted or highlighted is the fact that it basically hides what is going on, and that is why I go back to my earlier remarks that employers must look at their workplace culture; they must continue to make efforts to reform and support workers. Things change; workplace behaviours change. We have got a lot more use of digital things and platforms these days than we ever had, and things change all the time. Some things will not change, some things will remain the same, but in looking at some of the statistics, what I did note was that some of the sorts of behaviours that are reported that people – and women in particular – are experiencing are the same. So stupid comments, inappropriate comments, being touched or groped and also being sent inappropriate images – those sorts of things unfortunately have not changed. But as we know, women are being harassed online through other platforms as well, so those sorts of things have changed. I guess the thing is that people who want to abuse their power and position always find new ways to do it, so it is about catching up with that – how do we keep up with that and how do employers keep up with that? As Minister Stitt said earlier, this is about providing a healthy and safe working environment, so there are occupational health and safety considerations for employers to consider.

I have about 4 or 5 minutes left, but I might finish my remarks by just reminding the chamber and anyone who might be listening at home about one of the really serious examples of sexual harassment that hit the headlines and was remarked about. This example which I am going to talk about certainly highlighted the power imbalance between a senior colleague, a senior person, and women. The example I am talking about is the investigation into High Court judge Dyson Heydon, who was found to have sexually harassed six female associates while he was a member of the court. What we saw in the reporting of that over many months and once there was an investigation into that incident was that there was a history of it. It was almost – or was – known as an open secret within the legal profession. Now, ultimately the chief justice of the court at that time Susan Kiefel apologised to the women who had experienced harassment on behalf of the court and announced new measures to protect judges’ personal staff and to improve the handling of complaints. So they were really significant and important reforms, and of course they went some way to addressing the power imbalance and helping women come forward and disclose what they may have experienced. There were also then subsequent reports in the Sydney Morning Herald that other women had come forward and said they had been also sexually harassed. So again, this was seen as an open secret in the legal and judicial profession. Sometimes cultures are built around secrecy, preventing women from coming forward or anyone from coming forward. We also talk about the bystander effect when we talk about these things: people may be aware of someone who is being sexually harassed but they may feel unable to come forward and report it on behalf of somebody, or the victim themselves may say, ‘I don’t want you to report this, because I’m scared’ – or ‘terrified’ – ‘of the consequences that might happen.’

So we still have a big problem in regard to these things. Introducing these reforms around NDAs is obviously important, but we still have lots and lots and lots of work to do when we talk about workplace culture. As I said, there are still some cultures that develop, through whatever reason, that prevent people from coming forward, but it is also something that should be driven from the top and from leaders of any organisation, whether they be a corporation or a court, for example. We really need to start to expect leaders from wherever they are to set behavioural standards and examples and ensure that messages are obvious to those who work for them or in those circles or in and around them and that if they feel the need to report something they will be seen, heard and believed and action will be taken. In the last few weeks we have heard a lot of discussion around consequences. Well, this is no different. Some of these behaviours are covert, they are hidden, but they all are designed to do the same thing, which is to threaten and intimidate. It is about an exercise and abuse of power over someone else. So that is when governments need to step in and make changes, so I am really pleased to see that our government is acting.

I did note from looking at the notes before that we were the first jurisdiction in the world to introduce some of these reforms. There is always more work to do in this space, and I want to thank the union movement as well. It is something I have been a part of for 20-something-odd years, and I know the movement always tries to chip away at power imbalances between workers and employers. That is what they do and that is what they are there for, and this is no different. That work will continue, and I know the union movement will continue to advocate for reforms in other areas as well. I note that these reforms have been welcomed by people in the legal profession as well, because again, it is all about providing daylight. As I said before, often sunlight is the best antidote to some of these practices. And as I said before too, from working in consulting roles, I am never shocked or surprised about the lengths that some people will go to to hide their behaviour and not acknowledge their behaviour and not take responsibility for their behaviour. I do not think that will ever change, but nevertheless we can certainly put protections in place for workers. I commend the bill to the house.

 Rachel PAYNE (South-Eastern Metropolitan) (14:11): I rise to speak on the Restricting Non-disclosure Agreements (Sexual Harassment at Work) Bill 2025. These important reforms are designed to address non-disclosure agreements being used in the settlement of workplace sexual harassment in a way that protects perpetrators and silences victims. Very few make the difficult decision to report workplace sexual harassment in a legal system that often works against victims to leave them with little faith that they will receive justice. This lack of faith is not unfounded; half of people harassed identify the same harasser as having sexually harassed another employee in the workplace – half. The prevalence of NDAs allows these patterns of sexual harassment to continue unchecked. Often the complainants subject to these NDAs are women. Sexual harassment is compounded by gender but also by race, age, disability and sexual orientation. Women in insecure, low-paid or gig work and migrant women are even more at risk of experiencing sexual harassment. It is within this immense power imbalance that NDAs exist to enable perpetrators and silence victims.

To understand why this legislation is so important, I would like to begin by sharing the story of someone who was silenced by an NDA. Margaret – not her real name – was the subject of persistent and degrading workplace sexual harassment. Months of harassment that was amplifying meant that Margaret had no choice but to officially report her colleague to her employer. When I asked Margaret about how the employer responded, she said they did not do anything to curb his behaviour. He was not disciplined, and they said they just could not do anything. Margaret ended up on stress leave – understandably – while trying to resolve the situation with her employer. She said during this time they refused to pay some of her entitlements. Basically they made it very difficult for her to resolve the situation and forced her out with a modest settlement and a non-disclosure agreement. Margaret was left with no income and found that because of what she had experienced she could not engage in finding employment. She was left in a situation where she struggled to pay her bills and her mental health deteriorated. She ended up not being able to work for two years.

The worst part for Margaret after signing the NDA was that she could not talk to anybody: not her partner, not her family, not her psychiatrist. As she told me, ‘I was silenced. It was dehumanising, as you can’t process or validate what you’ve been through.’ This experience of harassment in the workplace had a major impact on Margaret’s career. She told me that she had studied at uni to enter that field of work. She had worked hard and she had a lot of pride in the job that she did. She now feels like she has missed out on a lot of opportunity. Not only is this a loss of a skilled worker but it also removes women from participating in the workforce and contributing to the economy. It is not good for business and it is not good for productivity. It is for people like Margaret that I have called for reforms to NDAs to be treated with the urgency it deserves. I have called for this numerous times since I was elected to Parliament, and I want to acknowledge the former Attorney-General for always responding to my questions on this. Also in her role as the Minister for Industrial Relations I want to just acknowledge how complex the legislation is and what a process that has been.

After all these years, it is great to see this legislation before us today, legislation that puts complainants front and centre.

The calls to reform NDAs in cases of workplace sexual harassment started well before I was elected. The Me Too movement highlighted the disturbing prevalence of sexual harassment and sexual abuse of women. We are all familiar with the actions of American film producer Harvey Weinstein, who regularly used NDAs to silence victim-survivors, allowing his disgusting behaviour to go unchecked for decades. This movement, alongside the Australian Human Rights Commission’s Respect@Work report, started a conversation about sexual harassment and the use of NDAs. We now have a much better idea of the scale of the problem, and it is massive. The Australian Human Rights Commission’s fifth national survey into sexual harassment in Australian workplaces found that one in three workers had experienced sexual harassment in the last five years. At the same time it is commonplace for employers to respond to reports of workplace sexual harassment with an NDA. Seventy-five per cent of the legal profession has never reached a sexual harassment settlement without strict NDA terms. There is no uniform approach to how these are drafted, with only 22 per cent of legal practitioners having ever used the Australian Human Rights Commission’s guidelines on NDAs. The law is clearly lagging behind the expectations of society.

In light of this, the Victorian government set up a ministerial taskforce on workplace sexual harassment to develop reforms that will prevent and respond to sexual harassment in workplaces. The taskforce recommended that the Victorian government introduce legislation to restrict the use of NDAs in relation to workplace sexual harassment, recognising that NDAs were often misused to silence victims, protect employer reputations and avoid accountability. As a brief aside, the recommendations specifically suggested a model of reform based on an Irish private members bill. This is yet another example of a private members bill leading progressive policy reform. You can add that to the list of the private members bills I outlined in last week’s debate.

While it has taken a while, we finally have legislation before us today that implements the taskforce’s recommendations. This bill centres non-disclosure agreements around the complainant, ensuring that they are only used when requested and that the employer, respondent and any other person on their behalf cannot pressure the complainant into entering an NDA. The bill also enables permitted disclosures. This is where a complainant can disclose material information, including the identity of the respondent and the conduct constituting the sexual harassment, to certain persons or bodies. Some of these might include lawyers, unions, family, medical and mental health practitioners and financial advisers. I take great comfort in knowing that, particularly for Margaret, who I referred to before.

Sexual harassment is an isolating experience in and of itself. It often damages the complainant’s work and negatively impacts progression in their career. To have, on top of that, an NDA that limits your access to essential services and forces you not to tell those closest to you about what has happened would add an unimaginable additional layer of isolation to this. The inclusion of permitted disclosures in this bill is a welcome response to addressing this issue. This bill also provides that a complainant may terminate an NDA with written notice at any time 12 months after it was entered into and to the extent it prevents them from disclosing material information about workplace sexual harassment.

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. When signing an NDA, people are pressured to agree quickly and are still in the midst of dealing with the psychological harms that come with sexual harassment. It is not surprising that when complainants have the chance to reflect that they are living a life of forced silence they wish they had not signed an NDA. As one person put it, no amount of money will ever be worth the ongoing trauma, fear and anxiety experienced regularly with no avenue to ever get that closure. The chance to change your mind is an important one, and this bill provides that the termination will not affect any settlement agreement or require payment of money – it simply lifts the weight of silence if the complainant chooses to do so.

3Before wrapping up, I would like to recognise the work of Trades Hall and particularly Wil Stracke in helping secure these changes and ensure that they were informed by the lived experience of many workers who suffered and were silenced by NDAs. The current systems protect perpetrators of workplace sexual harassment and harm victims, and that needs to change. This bill goes the right way about doing that. These are important reforms, and I commend the bill to the house.

 Harriet SHING (Eastern Victoria – Minister for the Suburban Rail Loop, Minister for Housing and Building, Minister for Development Victoria and Precincts) (14:20): Today is a really significant opportunity for us to talk about something which does not get the amount of attention that it deserves. Amidst front-page headlines and discussion about everything from sport through to international affairs and a leader who sees fit to be able to refer to women journalists as ‘piggies’, we know that all too often women are on the receiving end of some of the most disgraceful behaviour imaginable. Now, in some instances – many instances, hundreds of thousands of instances – this occurs very, very publicly. Something that underpins all that is the desire to humiliate and to shame, the desire to disempower or indeed a complete, wilful or often malicious disregard for the rights that women have and should have to dignity, to autonomy and to independence.

But there is a whole other side to the idea of disempowerment for women, particularly when it comes to workplace rights and entitlements. That is where the cloak of confidentiality and of secrecy has done so much damage to further erode the measure of trust, the measure of confidence and the measure of autonomy that women deserve to have in workplace environments and in the relationships that they have with colleagues, with friends and with family and the relationship that they have to their desires and aspirations for a trajectory in their career. When we think also about women and the power asymmetry that exists, often in vulnerable industries such as retail and hospitality we can see that that power imbalance is further augmented. We can see that, in exchange for the idea of further casual shifts, women will all too often put up with behaviour of an increasingly reprehensible nature simply because the take-it-or-leave-it proposition, which underpins so much of the environment in our workplace relations system, gives women little or no choice: endure disgraceful behaviour or go and find another job. At the heart of this sit the same humiliation and shame. The gaslighting, the denials, the secrecy and the lies in the aggregate all amount to a terrible burden of exhaustion, of trauma and of injury for women that persists not just for the duration of one particular job, but often for an entire life, and not just a working life.

These are situations that women all too often find themselves in over and over again. And when we compound that with the use of non-disclosure agreements – agreements, NDAs, that were originally developed for entirely separate purposes around the retention of trade secrets, for example – where the trade secret becomes one of protection of a perpetrator of acts that often have a lifelong impact of trauma, we can see that the system is no longer serving the purposes for which it was originally intended. This is where NDAs, which in and of themselves are created, negotiated and executed in order to give closure to a matter, in fact do far from that. They have the opposite impact. They entrench a situation of disempowerment that often means that healing, moving on and closure are not achieved, but rather ongoing injury, ongoing humiliation and ongoing disempowerment – and so it goes on. In addition to that, NDAs have traditionally enabled workplaces to turn a blind eye to cultures of permissiveness, to cultures that have perpetuated the capacity and indeed sometimes the opportunity for people, overwhelmingly men, to behave disgracefully and indeed behave disgracefully in turning a blind eye to what too many know is occurring and fail to do anything about.

So this is important legislation. This is legislation which sends a very clear message that a cloak of secrecy is not a shield for bad behaviour, and nor should it ever be presumed to enable, to facilitate or to conceal behaviour – that it should not be an opportunity to weaponise an asymmetry of power, because there is too much of that already.

These NDA reforms are about making sure that the way in which NDAs are used is something which rests more squarely and more appropriately with a complainant and that they retain rights, they retain power and they retain autonomy when it comes to being able to determine the terms by which an NDA will operate. It is also important that somebody who signs an NDA as part of a settlement is able then to access information and process to enable them to make an informed decision – a decision guided by advice and by assistance. It also preserves the importance of being able to talk to somebody about the impact of what has occurred, because again, when we talk about what happens under the cover of confidentiality – behind closed doors – we fail to recognise the ongoing impact. Silence can be an enduring source of injury, and as a counterpoint, sunlight can in fact be the best disinfectant. These strict requirements as part of NDAs and the way in which they can be used are important. They are meaningful and they have work to do, but they also drive a clear point about the importance of cultural change within organisations, workplaces and specific sectors and industries.

This is the culmination of years and years of work. I remember having been on the receiving end of some pretty awful behaviour. I have written about that before – about behaviour that included sexual harassment, physical harassment, gendered abuse and the idea of being cleaved off and treated in a special way in order to get special benefits by an employer who wanted to see me succeed and others perhaps not in exchange for certain things. This is the power asymmetry that is attendant in so many workplaces, including those areas with a lack of security of employment or high levels of casualisation or where duration of employment is not guaranteed, particularly where family and caring responsibilities are taken into account. This is all too familiar. As so many people around this chamber know, as so many stakeholders know and as so many people who have signed an NDA know, this is something which, again, has continued unchecked until now.

There is a lot of work to do to make sure that we are listening to the experiences of people who have endured and continue to endure the impact of work-related harassment, in particular behaviour that causes trauma, distress or injury – behaviour that is unsafe. The failure of workplaces, employers and indeed workers to comply with their obligations around safe systems of work is something that we can never and should never turn our backs on. This sits alongside a suite of work-related reforms to make and keep people safe, from industrial manslaughter through to the way in which we have driven wholesale reforms to workplace safety, whether they are nurse-to-patient ratios or other entitlements about the preservation of benefits and compensation. This is another part of that puzzle.

I want to thank those advocates who for so many years – in fact decades in some instances – have been at the heart of discussion and negotiation on correcting those power imbalances. Worker by worker, the trade union movement has been at the heart of advocacy – not just advocacy around the negotiation of the terms of individual NDAs, because that is the system which until now has operated in Victoria, but in searching for broader systemic reform. In particular the Australian Services Union has driven so much of the work in this space. Alongside family violence leave, which was incorporated in the first instance into enterprise agreements through that union, this is something which, again, has been driven by that union and also by the Trades Hall Council work and Wil Stracke, who has been instrumental in advocating for these changes alongside so many others.

This is work, however, that does not sit on one pair of shoulders. It does not – and nor should it – sit with one level of government. It does not – and nor should it – sit with one account from one victim-survivor of one instance of appalling behaviour. This is something which we all need to own. This is something that we cannot afford and do not have the opportunity – and nor should we have the right – to turn our backs on, because for too long we have seen systems in place that have been created with the intent of confidentiality but which have had the effect of allowing secrecy and silence to persist.

This is good legislative reform. This is going to be uncomfortable legislative reform, but it is going to be uncomfortable for those who have perhaps been able to operate in a situation or in circumstances where it has not been necessary to change the status quo, where it has not been seen to be a priority to improve workplace culture. Mandatory information and a review period is as important to the way in which this legislation will operate in substance as anything else. The power that is to be delivered through access to information is hard to underestimate. What I would suggest to anybody who has endured or survived or continues to be subject to an NDA relates as much to accuracy and information and to access to supports and services as anything else. I know from the work that I have done previously in negotiation of settlements and separations that one of the things that sits most squarely at the heart of the idea of closure and of healing is an apology. It is an acknowledgement of wrongdoing. It is an acknowledgement of harm and of hurt caused and distress. What I know, having sat around so many tables negotiating outcomes and separations and settlements as part of NDAs, is that just about the hardest thing to extract is an apology. And it should not be that way. It does not need to be that way. If, as part of moving to a process and to a set of outcomes that enable victim-survivors, complainants and people on the receiving end of terrible behaviour to be able to move toward a measure of closure, then in the absence of those apologies – those holy grails of statements of regret or contrition, of acknowledgement of pain – this actually goes a significant way toward perhaps closing that gap and that power asymmetry.

This legislation – and we are clear eyed about it – does not fix the problem, it responds to it. This legislation will enable us, perhaps, to ensure that complainants are not isolated or deprived of avenues of support. This legislation needs to sit alongside a range of other supports and services and programs which are available and accessible to them without fear of retribution or of breach. Again, we are talking about people often from migrant backgrounds, young women, people living with disabilities, people in rural and regional Victoria, who are presented with a document five, 10, 12, often 14 pages in length, expressed in terms like deed, due consideration, non-disparagement, confidentiality, non-disclosure, recitals and appendices. These are terms which we here in this chamber are used to, which people in the legal sector are used to and which people in the union movement are used to. But put yourself in the shoes of a young retail worker in a rural and regional centre where employment opportunities are perhaps not nearly as available as they might be the next town over and everyone talks to each other, and you will see why it is that correcting that power asymmetry is so important.

So I want to commend this bill to the house. I want to acknowledge the work that so many people have done to bring it to this point. But I also want to make sure that we take this as an opportunity not for a full stop but rather for a comma.

The work needs to go on, because too many of us know exactly how it feels – that sting of shame and of humiliation and of distress about something for which we are not to blame – and too many of us know what needs to be done. We are here as elected representatives with that responsibility. And here as elected representatives with that responsibility we have an opportunity to make sure that this work goes on. We have an opportunity to make sure that sunlight, as the best disinfectant, can be part of the systems that we design, deliver and support. Thank you to everybody who has been involved in developing this legislation. I commend the bill to the house.

 Georgie PURCELL (Northern Victoria) (14:35): I am really pleased to rise to speak in support of the Restricting Non-disclosure Agreements (Sexual Harassment at Work) Bill 2025, a bill that we have all waited a really long time for and a bill which will make Victoria the first state in Australia and one of the first jurisdictions in the world to restrict the use of non-disclosure agreements in sexual harassment settlements. Through this bill, in fact through the very objectives of the act it will create, Victoria will legislatively recognise the vulnerability of workers who are subject to workplace sexual harassment and the psychological and social impact caused by it. The bill will ensure that an NDA can only be entered into at the express wish of the victim-survivor – a decision that must be reached without coercion and without pressure. If someone wishes to enter into an NDA, the bill provides a long list of persons or bodies they are permitted to make disclosures to. Importantly, this includes a lawyer, mental health and medical practitioners and even close friends and family in order to gain support. Most crucially, if after 12 months they no longer wish to be bound by the NDA, they can choose to end it. What is key to all of this is that power will now be firmly in the hands of those affected by sexual harassment rather than their bosses. Non-disclosure agreements will no longer be able to be used to control.

This bill is the direct outcome of significant advocacy, particularly from the Victorian Trades Hall Council and the wider union movement, and I too want to particularly acknowledge the work of Wil Stracke in this important piece of legislation before us today. It is also acquitting one of the 26 recommendations from the Ministerial Taskforce on Workplace Sexual Harassment. The government accepted 21 of the 26 recommendations, and I would like to encourage them not to abandon the other five recommendations identified as needing further consideration after we move away from this debate today. The taskforce made other strong legislative proposals to strengthen protections against workplace sexual harassment. For far too long NDAs have been used to silence workers who have been subjected to sexual harassment in the workplace. Today, one in three Australian workers report having been sexually harassed at work in the last five years, and I can guarantee you that that number in reality would actually be far, far higher. Currently the bill places responsibility of acknowledging that preconditions have been met solely on the victim-survivor through the form set out in clause 8. I will be moving an amendment, which I ask to be circulated now.

This amendment would require the employer and other parties to also sign a form declaring that they have met the preconditions outlined in the bill and to provide a copy of the form to the complainant. It is hoped that this will add an extra layer of accountability to ensure employers meet the required preconditions. I want to thank and acknowledge the Working Women’s Centre Victoria for putting this suggestion forward, and I do thank Minister Symes and her office for their cooperation on this amendment. There have been concerns raised by community legal centres and sexual assault support organisations about the kind of support they will be able to provide under the permitted disclosures section, and I have received good assurances from the government and look forward to helping to provide some clarity during the committee-of-the-whole stage of this bill.

So many members throughout the course of this debate have raised and shared their own stories and experiences, but I particularly want to acknowledge the words of Natalie Hutchins in the other place and Bridget Vallence, also in the other place, for their contributions.

I knew from as soon as I started working at 14 years and nine months of age that sexual harassment would be a feature of my working life. I started working in fast food, where I actively avoided roles where I had to interact with members of the public and would try to stay behind the counter and at the back of house because of the ongoing comments, the leering and the nature of that job. When I moved on to working in a pub when I was 18 years old, I dreaded clearing the glasses during happy hour, knowing that I would be groped, pulled onto laps and receive demeaning and sexualised comments. Once I was even followed out to my car by a customer who threatened me after I turned down his advances. In that workplace I was powerless because we could not upset the regulars in a small country town. I know that for so many women this experience is shared among all of us, that we are silenced because we do not want to offend people. We do not want to affect business because sexual harassment is not good for business, and ultimately it is the women who suffer the consequences and the repercussions of that.

I first reported sexual harassment in the workplace by a colleague when I was 20. I was then working in the legal profession adjacent to the courts. When I reported this sexual harassment, despite it being alongside many other women who were enduring the same thing and it was proven and that colleague lost his job, the all-too-common story happened where the narrative was flipped. It was December, right before Christmas, and we were quickly soon demonised with commentary and narratives asking us how he was going to buy presents for his children and how he was going to support his family. Most of us left that workplace because of the repercussions of reporting our mistreatment and the sexual harassment that we endured.

In my seven years working in this building, that has not changed. I have been sexually harassed in the Parliament on multiple occasions as well. It was in my very first year as a staffer, when I was just 26 years old, and I had taken on a job that I thought was going to be my dream job and I was going to be, you know, doing great things for animals and advocating for animals. I will never forget in those early months when someone came into my office for a discussion and I bent over to get something from the fridge and he remarked to me, in my member of Parliament’s office, ‘If you do that again, I won’t be responsible for what happens next.’ This is just one in a litany of examples that have occurred while working in this building.

It really has made me reflect, perhaps naively, ahead of this debate today that I thought I would be safe from this treatment when I became a member of Parliament as well, but that just has not been the reality and that has not been the case. There are consequences. There are real consequences. Anyone can be a victim of sexual harassment, but when you bring your whole true self into this building and your whole story, your experiences, I think particularly for young people and stories like my own, there are immediate questions when you speak about the mistreatment and the sexual harassment that you endure.

I reported sexual harassment in this building as a member of Parliament. Like most things in this place, nothing is ever secret for long, and the immediate questions were: ‘What did she expect? Look how she dresses. Look at the tattoos. Look at her past. You can’t sexually harass the stripper.’ I heard the whispers when I walked past in the hallway. I have heard all of the rumours. I know the slut shaming far too well. Members of this place are not beyond it, and we need to reflect on that today as well as we move forward and do this important piece of legislation. There is an ongoing commentary for many women in this building that implies things would be different for us if we conducted ourselves in a different way.

I think we saw that with Minister Hutchins’s commentary, where she shared her experience and people questioned if it could even be possible that she could be sexually harassed, and then when someone else speaks from their experience it is ‘What did she expect would happen to her?’ It creates this false narrative of a perfect victim – that you can only experience or endure this behaviour and, importantly, you can only speak out about this behaviour if you meet a certain impossible criteria. I think that in making these changes we need to reflect on the fact that it is all well and good to remove the gag on survivors of sexual harassment, but we need to start listening when people speak. We need to start hearing their stories and, importantly, we need to stop questioning them, because there have been far too many examples in this country and in this state where when women do speak out, which is rare, we see the way that they are treated, we see their experiences and we see the way in which their lives are destroyed and the perpetrators of their treatment are untouchable.

Ms Terpstra reflected on this in her comments. Certainly in my experience and certainly in this job sexual harassment in the workplace, it is important for us to recognise, just does not look the way that it used to. We are not safe when we go home at night or when we leave a building. It extends beyond the physical precinct or office or place of work, and it extends past 5 pm. For me, in my experience with someone else in this place, it was the late-night messages, the harassing phone calls, the harassing texts, the bombardment of digital contact, the knocks on our doors when we cannot see who is on the other side and the demands to meet us under the guise of work. It really does not matter how senior or successful you become. One thing that I have learned is that men will always see us as up for grabs, and women, we know, are coming up with ways to protect ourselves from what we know is bound to happen. In my experience I relied very, very heavily on a support network of colleagues who not only could I confide in but who actually directly saw my experience. I had to put my own measures in place, such as having an emergency message to send someone when I was alone in my office with someone I did not want to be with or making a phone call to come up with an excuse to come and get me.

As Minister Shing touched on, this will not change that behaviour. This will not end that behaviour. This will only bring it to light and allow us to speak about it – and speaking about it is really, really hard. I was hesitant to speak about it myself today because the immediate questioning and the vulnerability that comes with it is really, really difficult. We need to create a space in order to allow these conversations to happen and to be willing to be active listeners without the stigma and without the shame and without the questioning.

I also wanted to reflect on the ways in which sexual harassment, when it is coupled with a workplace, particularly like this one, where it is our job to have relationships with people and to work together, there is a real sense, I think, among many working women and professionals about the reputational damage that will come with speaking out against behaviours like this. I feel really, really lucky and really, really blessed to be friends with many women who have publicly shared their stories about the assaults or harassments that they have experienced in Australian politics. We often reflect, I think, despite having very, very different stories, on this shared suffrage of knowing that in speaking out about our experiences our biggest fear was the repercussions for that and what would come with it and for the people who have done this to us to continue to walk the hallways of parliaments around the country, only for their careers to not only be not destroyed but often be elevated, while ours are left in tatters.

Even with my seemingly strong convictions and my very outspoken gender politics, when I have experienced this treatment in the workplace, whether it be when I was 14 and nine months old working in fast food or working at a pub or working here in the Parliament, I have never been willing to advocate for myself in the way that I do for others. It is only with the constant encouragement of the people around me that I have been able to, so for anyone who is listening to this debate today and hearing the stories of so many women of so many different ages about their experiences across the workplace throughout their working life – whether it be in this building or when they were younger – please do give them the space to feel comfortable to share how they have felt being on the receiving end of this. If they do confide in you and share their story, please do offer them that support.

If we are going to legislate so that sexual harassment survivors can speak out, then we need to be willing to do that without question, without bias, without stigma and without assumption. I do not feel comfortable ever speaking from this perspective, but I am about to become a parent to a little girl, and it worries me deeply knowing the experiences that I have encountered in my adult working life. 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.

I really want to thank every single person who has contributed to this piece of legislation for their bravery and for sharing their story. I remember when I first got elected. In my first year I had a delegation of women from Trades Hall come and meet me from across a range of different unions and a range of different workplaces but all with the same story to share: they had been sexually harassed in the workplace and forced to sign an NDA. They wanted to speak about their experiences, perhaps not even publicly like I have today, but even just with their psychologist or their mum or a mental health professional. I feel really proud that we have been able to be part of this today. I thank the government for listening and for bringing this bill to the house, and I look forward to seeing its passage this afternoon.

 Jaclyn SYMES (Northern Victoria – Treasurer, Minister for Industrial Relations, Minister for Regional Development) (14:53): Thank you to the speakers today; I will touch on some people’s contributions throughout my summing up. I will not take too long. Obviously the second reading speech has gone through the detail of the bill, but I do want to reflect that this is landmark legislation. We are tackling the toxic culture that can exist in workplaces, and we are saying ‘enough’ to a system that acts to silence victims of sexual harassment and prevent them from speaking about their experiences.

Throughout this debate we have heard accounts and details of the trauma and damage that sexual harassment within workplaces inflicts on victims. The stories are harrowing, and these are only the ones that we are able to hear. So many stories have been locked away as a result of common HR and often default legal practices that too easily allow perpetrators of workplace sexual harassment – or indeed their bosses – to buy the silence of victims. It is openly called hush money, and today we are saying no more. The core premise of this bill is empowerment for victims. It is not about banning the use of non-disclosure agreements altogether. It is about limiting their use to when a worker expressly wants to enter into one. In that respect, this bill is about choice. It is also about providing safeguards where NDAs are used. This includes ensuring that complainants are not unnecessarily restricted from disclosing to their support networks and allowing complainants to waive the NDAs after 12 months, recognising that in time a complainant may indeed find that confidentiality is causing them unexpected harm.

I know that many of the reforms proposed in the bill are bold for some. They will be closely monitored. Their implementation will be watched to ensure that any unintended consequences can be identified and addressed. Ultimately though, I have confidence that we have landed in the right place with these reforms and that they will have a significant impact on improving workplace safety, and I am given that confidence because of the amount of work that went into the development of this bill and the reflection on lived experience.

I want to acknowledge the tenor of the debate, particularly from many female colleagues, and the openness and vulnerability of so many of those in both chambers across parties. I particularly want to acknowledge those who shared their own personal stories of sexual harassment. I would call out the member for Evelyn; the member for Monbulk; Mrs Deeming; Ms Purcell, whom we have just heard from; and particularly the Minister for Women, my friend Natalie Hutchins. There are others that have also drawn on their own experiences and talked about things that have happened to their friends, but what we know is that there are plenty of untold stories. The emotion, respect and passion with which members have spoken has been deeply moving and I hope thought provoking for many, but fundamentally it has been illustrative of exactly the problem that we are trying to address. It has, sadly, highlighted just how much more work there is to do. I will steal from my good friend Ms Shing, where she hopes that this is a comma and not a full stop. I give that commitment from my position as Minister for Industrial Relations that when it comes to workplaces that is right, but I think as a government we are all on board with the comma, Ms Shing.

There are many contributors to the reforms and probably not enough time to call them out. However, there are some critical people to acknowledge without whom we would not be able to implement the changes in the form that we have got before us. I thank every stakeholder who contributed to the consultation on the bill. The fact that there was such consensus on the need to do better for victims has been deeply encouraging, and your feedback on how we could deliver this reform was clearly invaluable. I thank the hardworking staff of Industrial Relations Victoria who have crafted these reforms over years – Lissa Zass, Kate Bugeja and Dannii Spiteri – and my hardworking senior industrial relations adviser Sam Towler. I thank the members of the Ministerial Taskforce on Workplace Sexual Harassment, co-chaired by Liberty Sanger and member for Thomastown Bronwyn Halfpenny. I thank the many employment and industrial lawyers who contributed to this bill, particularly Jessica Dawson-Field from Maurice Blackburn, who shared her experiences of the clients that she has dealt with, for the purposes of crafting the bill but also for announcing and being part of the media. Most of all I give my profound thanks to and acknowledge the absolute power of work from the union movement. In particular I want to acknowledge Wil Stracke. Wil, I do not think you have been mentioned in Hansard this many times, but I am going to add to it – Wil Stracke, Wil Stracke, Wil Stracke, you are amazing. Danae Bosler, Tiarne Crowther, Caro Dunbar and all the sisters in Trades Hall – many of you are up there in the gallery – thank you so much for being here today.

It is my absolute privilege to be the vessel to bring this hard work to the Parliament. I am delivering on years of thought, research, conversation, advocacy, ink and tears, and this bill – again, as I will finish on – is ultimately about the victims. That is what motivates the people in the gallery to do what they do. They hear their stories; they want to make it better. I want to call out the victims, your stories, and acknowledge your pain, but importantly, your strength. I hope that this bill gives some acknowledgement of that. I am going to steal another reflection, because I like the way he summed up this legislation. The member for Narre Warren South spoke of the honour and power that we have in this Parliament and the labour movement. This is something that all MPs should reflect on and remind themselves of, and what better use of this power could there be than to make the working lives of Victorians safer and to help get back the voices of those who have been silenced? I commend the bill to the house.

Motion agreed to.

Read second time.

Committed.

Clause 1 (15:01)

Richard WELCH: Minister, congratulations on bringing this bill to the table. I just want to say from the outset that even if I get a bit forensic in examining the bill, it is from a place of good faith and for clarity, not for any other reason or to disparage the bill itself. I want to start with some items on some definitional clarifications and some legal clarifications. There have been a number of other pieces of legislation in the vicinity of this. The Australian Human Rights Commission in 2022 published some guidance on confidentiality, and since 2023 there is a positive duty; there are the federal Sex Discrimination Act 1984 and some other items. In that vein, did the government seek legal advice on whether it had the power under OH&S laws as opposed to employment and industrial relations laws – sorry, I am trying to get my words out – which have been referred to the Commonwealth? Are you sure that you have got the power to do this?

Jaclyn SYMES: I am not in a position to disclose legal advice, but I reckon if I tell you the journey of this bill, it will answer your question without answering your question directly. The first time that this proposal was brought to my attention in terms of ‘We should legislate,’ I was the Attorney-General. I said, ‘I think it’s probably best placed with the Minister for Industrial Relations.’ That was based off some conversations and some advice, and hence it has come back to me in this role.

Richard WELCH: Has the government received any advice about whether this bill can be legally applied to employees covered by federal agreements and/or awards?

Jaclyn SYMES: Mr Welch, the legislation will apply to workplaces in Victoria.

Richard WELCH: Has the government considered if the ability of a complainant to end the NDA after 12 months is contrary to any other contract law?

Jaclyn SYMES: Mr Welch, with the information provided and the choice you make in relation to the waiver, you know that that would be a risk.

Richard WELCH: Many businesses cover their risks and liabilities with insurance, and certainly settlement of harassment cases does fall under some of that. Has there been any consideration of the impact of this law on the behaviour or the policies of insurers and the cost of insurance?

Jaclyn SYMES: Mr Welch, we have not received any indication that that would be a consequence of this bill, but that would be a matter for individual businesses.

Richard WELCH: The definition of ‘work’ and ‘worker’ that these provisions apply to is quite broad and seems to include workers employed under contract, voluntary and commission-based work, workers covered by federal agreements if they are in Victoria and workers employed under the Public Administration Act 2004. Are there any workers, I guess by exception, this bill does not apply to, in any category?

Jaclyn SYMES: We have not provided any exceptions.

Richard WELCH: Has the government considered which employer is the responsible employer when labour hire is concerned – the host or the labour hire licence holder – and might this change on account of the separate labour hire bill?

Jaclyn SYMES: There is nothing in this bill that changes the employment relationships or the employer relationships that currently exist in relation to the applicability of contracts, agreements and existing NDAs. This is not making any changes to that framework.

Richard WELCH: Do you think the labour hire bill may? Is there any anticipation that may change relationships?

Jaclyn SYMES: That is not the purpose of this legislation, no.

Richard WELCH: I will leave that there. I am going to get into the more forensic parts of it, and again I just want to emphasise that this is just for clarity.

Jaclyn Symes: You don’t oppose it – I get it. All good.

Richard WELCH: Yes. Is one of the purposes of the bill to exclude financial settlement based on confidentiality alone? And I am curious: what if there are no admissions, only agreement to settle and maintain confidence and/or non-disparagement?

Jaclyn SYMES: Can you ask the first part of your question again?

Richard WELCH: Is one of the purposes or effects of the bill – I do not know the purposes – to exclude financial settlement based on confidentiality alone? What if within the NDA there are no admissions, only agreement to settle and maintain confidence and/or non-disparagement? Does it fall under the purview of the bill if there are no admissions?

Jaclyn SYMES: This is about ensuring that there is confidence for the understanding of when an NDA might be chosen by a victim and ultimately the ability for victims to speak about sexual harassment within the workplace. I do not accept the interaction as you have described it.

Richard WELCH: I will give a case example perhaps. I might come back to that. How are the concepts and clauses that might relate to non-disparagement considered in the repudiation of the NDA? What if the disclosure of certain settlement details amounts to disparagement or the manner of disclosure is considered defamatory?

Jaclyn SYMES: When we are talking about settlement terms and amounts, they can remain confidential.

Richard WELCH: But the victim would have the discretion to disclose it?

Jaclyn SYMES: No, not unless the agreement was specifically to provide for that.

Richard WELCH: Just so I am clear: in waiving or passing away the confidentiality, the victim is not entitled to disclose the terms of it, just the fact that it was a sexual harassment case?

Jaclyn SYMES: No.

Richard WELCH: I think I know the answer, but in the repudiation of the NDA, does that allow for the victim to disclose the perpetrator’s and/or accused’s identity?

Jaclyn SYMES: Sorry. I will get you to ask again.

Richard WELCH: Does the repudiation of the NDA include or allow for the disclosure of the perpetrator’s or accused’s identity?

Jaclyn SYMES: Yes. They can speak to the identity.

Richard WELCH: Upon the victim’s or complainant’s repudiation of the NDA, is the employer also relieved of their confidentiality commitments? Does the entire confidentiality fall away? And if not, does that leave the employer unable to defend reputationally or explain or qualify themselves?

Jaclyn SYMES: The answer to your question is yes, unless it is otherwise agreed not to.

Richard WELCH: What if in the settlement of a contested matter the employer considers the separation is driven by misconduct or some other justified reasons but the employee considers it driven by sexual harassment and there is agreement to disagree within the settlement. Does it qualify as a sexual harassment settlement under which the NDA can be repudiated?

Jaclyn SYMES: It would have to depend on the terms of the termination.

Richard WELCH: But it is agreeing to disagree.

Jaclyn SYMES: This is only to apply for matters of sexual harassment.

Richard WELCH: Where both parties agree that it was.

Jaclyn SYMES: You can agree and not admit. You could have a range of matters that are subject to an NDA or a termination agreement. It is only the sexual harassment component that would be subject to the NDA laws that we are creating today. You can have an NDA that cannot be waived about other matters.

Richard WELCH: So is the suggestion then that there would be multiple NDAs? If it was a complicated matter with many components, which some are, would that then be the recommendation to have multiple NDAs? Because if the parties do not agree there was sexual harassment, which view takes pre-eminence in determining if this is a sexual harassment settlement?

Jaclyn SYMES: I fail to see how you would get an agreement to sign something that is not agreed.

Richard WELCH: You can, Minister. You could agree to disagree.

Jaclyn SYMES: Therefore it would come down to what is written in the agreement as to whether the sexual harassment is a component of the agreement, and then that is the only part of the agreement that would be captured by this. I would not anticipate that you would require separate NDAs, because even if an NDA is confined to a sexual harassment matter there are other components of the NDA that do not relate to that confidentiality that still could remain part of the non-disclosure agreement.

Richard WELCH: I will not labour it, but I think the point is that NDAs often come about because the matter is contested, and it is a way to resolve something that is maybe unresolvable between the two parties. One may maintain that sexual harassment has taken place, one may maintain it did not, and the NDA aims to resolve that without resolving it.

Jaclyn SYMES: Yes, but the agreement part comes at the point of settlement, so you do not have to agree to the terms. You negotiate the terms before you agree; that is how they work. The parties will negotiate an outcome, and part of it may involve a range of separate clauses relating to different types of reasons that they are signing an NDA. Are you concerned that if it is written into a contract, there are no admissions? They are the matters that would be part of the agreement and the negotiation of the outcome, so these would be resolved. No-one is forced to sign. These are the matters that could be resolved through the negotiation.

Richard WELCH: They absolutely could be resolved. I am not trying to work through that, because that is right. There will be cases where it can and will be resolved through the negotiation. But there are absolutely cases where no admission is made, the settlement is based on no admission and is confidential. Is it still a sexual harassment settlement?

Jaclyn SYMES: Mr Welch, I am often reluctant to apply the laws to examples, but I think it might be useful in this situation, because your line of questioning is about after the 12 months and the waiver. If there is a complaint about sexual harassment and you go through the process of making sure the victim has requested the NDA, in response to that the language would be that the respondent or the employer does not admit to the allegations. If in 12 months or beyond, the complainant wishes to waive the NDA and disclose details of the sexual harassment, they are free to do so, and so is anybody who would be free to speak in response to anything that was disclosed. You could see it quite practically working as an employee and a workplace signing an agreement, and 12 months down the track or two years down the track the victim comes out and says something. The employer can say, ‘There was a complaint, there was an agreement. We didn’t admit guilt.’ That is how it would work.

Richard WELCH: That is actually exactly the clarification I was seeking, so that is great, thank you. There is one potential maladaption of it. The working assumption in the law is that the NDA is between the employer and the victim. What role under this legislation does the accused or the perpetrator have within this framework?

Jaclyn SYMES: There is nothing to prevent them being a party.

Richard WELCH: But they may not be a party, obviously, as well.

Jaclyn SYMES: It would depend on who the complainant wished to pursue.

Richard WELCH: Is there any implied obligation on the employer to require the perpetrator to be a party?

Jaclyn SYMES: No.

Richard WELCH: Given that the bill specifically seeks to address the lack of victim agency and the power imbalance at the time of initial settlement of the NDA, can the victim who made the settlement based on matters and terms that do not include sexual harassment subsequently determine that sexual harassment was indeed involved and therefore invoke the right under this bill to repudiate the NDA?

Jaclyn SYMES: Not unless you created a new NDA, because it only applies to the sexual harassment.

Richard WELCH: Has the government considered the matter of some potential procedural unfairness – there are a few questions sort of around that – of a victim or complainant signing an NDA, receiving a financial payment under a settlement that includes confidentiality and then subsequently terminating the NDA with no recourse to the employer to either relitigate or to claim back the compensation paid?

Jaclyn SYMES: No, because that will be well known, because that has been provided for through the legislation specifically. Not to mention that there will be some education and materials available after the bill passes, but it is also in recognition that settlement moneys are also for sexual harassment, not just for confidentiality.

Richard WELCH: How does the ability of a complainant or a victim to terminate the NDA impact upon the employer’s duty of care to other employees under OH&S laws, including the alleged perpetrator and others in the company that may be colleagues of the complainant or the alleged perpetrator?

Jaclyn SYMES: Sorry, Mr Welch, you are concerned about the feelings of non-victims if the victim says, ‘This happened in your workplace’?

Richard WELCH: No, no. I am not concerned about that. I am concerned about clarifying the business’s obligations, that is all.

Jaclyn SYMES: There is nothing in this bill that diminishes obligations under OH&S laws to ensure that their workplaces are safe.

Richard WELCH: Minister, what incentive is there for a business or employer to sign an NDA after the passage of this bill? What incentive is left for them in this?

Jaclyn SYMES: Sorry, Mr Welch. Incentive for what?

Richard WELCH: I guess it is worth some preamble, and I mentioned it in the speech as well. The key concern expressed is that because the NDA can be repudiated after a year, businesses may be less inclined to enter into a settlement at all, let alone an NDA, because they do not feel the protection is reciprocal. Given that they cannot protect themselves, is there any incentive left for them to do so?

Jaclyn SYMES: At the outset, Mr Welch, settlement agreements stand. The NDA component is a component of the agreement. I listened to your question through the debate, and of course I have had many conversations with people who express a view that there could be a consequence of less settlements happening. A lot of people in the legal world in particular have raised this, and I can draw on my own experiences. As a young lawyer I did a lot of NDAs for clients that felt as though you were doing the right thing by your clients because it resolved a matter and in effect people could move on. When it comes to sexual harassment matters – this is why we are so narrow in this bill – it is not all about a range of other workplace disputes that could be subject to agreements and NDAs, this is about sexual harassment. This is a point in time where the world is waking up to the fact that hush money and contracts are damaging. Not only are they damaging for the victim – and that is at the centre of this – but they are damaging to toxic workplace cultures that I do not think we should accept in 2025.

There are a range of reasons that employers would choose to settle that are outside just the ability to keep matters confidential. It is about acknowledgement of the event. It is about avoiding going to court. It is about ensuring that you can talk about the matter and have it resolved from the employer’s perspective. A lot of employers do not want to be perceived as covering up matters. In fact it is good for their reputation to be at the forefront of workplace safety, particularly women’s safety in workplaces against sexual harassment. NDA restrictions and prohibitions are relatively new internationally, so there is not a lot of data around in relation to the impact of settlements. But some of the information that I do have is that there was an analysis of US data indicating that after NDA legislation was introduced in six states, the settlement rate for sexual harassment cases did not decline but actually increased. There is also recent research by the Human Rights Law Centre and Redfern Legal Centre that while strict NDAs remain standard practice, close to a third of applicant lawyers resolve matters with less restrictive NDAs. Maintaining strict confidentiality is not necessarily a primary factor in resolving these matters.

The proposition from some is that this could be bad for victims because it will draw out a process. I thought long and hard about this and whether it would be a consequence. I have been convinced that we are going the right way and that it will be better for the state, better for victims, better for employers. That is where I have landed. I acknowledge that there is this concern. I do not think it is going to come to light, but that is why we will continue to monitor it. It is why we have got a review. I would put on the record too – we are having a bit of a discussion about whether the review should be two years or three years, and I will give some reasons why it should be three – but just because you have a legislated formal review does not mean that we cannot keep an eye on these laws and react to feedback that we get from people that enact the legislation. So I acknowledge those concerns; I have been persuaded that this is the right way to go.

Richard WELCH: That is exactly right. I mean, I think that is exactly the logical pathway through that. The concern is there: is it a material risk? We do not know. That is the point. This is talked about purely from a perspective of the welfare of the victim, not for the welfare of the business, but we would know that there would be, let us say for want of a better word, maladaptive responses from certain businesspeople. Not in the best cases, you know – we are not really solving for the best case; we are solving for the worst-case scenario where we know that perhaps less ethical employers would say, ‘Well, it’s an NDA or you go to court: what are you going to do?’ Or it is no settlement at all, and you go to court. I think you have acknowledged that; that is all we need to say about that.

I will move on to the disclosure rights and the very helpful provision that the victim can speak to people. The only question I have around this is: in some ways the disclosure provisions are quite prescriptive, because it is a specific list, and in other ways it is quite loose, because it is sort of loose definitions of family and things. On the specificity where there is a list of people, entities, organisations you can speak to, is there a risk that because it is not exhaustive, it may be too prescriptive? So, for example, it includes a GP mental health professional and a union, but it does not explicitly include a sexual assault counselling service.

Jaclyn SYMES: Mr Welch, at the outset, we can prescribe more people by regulation or additional classes, but in terms of the definition of being able to disclose for the purposes of support, that would pick up most counsellors.

Richard WELCH: Sorry, Minister, could you just repeat the last bit of that?

Jaclyn SYMES: So you can disclose for the purposes of mental health and wellbeing, and you can disclose to those professionals, so that would pick up most counsellors, particularly what you referenced.

Richard Welch: That’s the way in which you could capture them?

Jaclyn SYMES: Yes.

Richard WELCH: I will not labour this any longer than past this question: it can include GPs, but it does not include nurses?

Jaclyn SYMES: I would put nurses in the category of health and wellbeing professionals.

Richard WELCH: We have permitted disclosure to a friend or family member who has agreed to keep the information confidential for purposes of obtaining personal support. That is fine. It is deliberately broad; that is fine. We also say that it specifies a person or a member of a class of person prescribed by the regulations for a prescribed purpose may be included in the permitted disclosures list; that is sort of what we have just discussed. Does this mean that the list of people to whom a permitted disclosure can be made can change after an NDA has been signed, and what would be the impact on the NDA of that? In a sense, it is just saying that if you sign the NDA under this law, you are signing it under a prescribed list, so they are the terms and conditions. So if you change the prescribed list, you are actually changing the terms and conditions, effectively.

Jaclyn SYMES: Mr Welch, whilst I appreciate your question, and in theory you can have a list and because it is going to be prescribed in regulations and you can add to it, yes, the list could expand, that would be an expansion if it was picked up that there was an appropriate person that could provide support while being one that we have not envisaged. First of all, we think that is probably pretty low and the impact would be materially small, because it is not intended that we are going to open up a floodgate of people that you can speak to. It is really about who victims need to speak to for the purposes of their own health, wellbeing and mental health in particular. So it is not a concern that I have, even though technically, yes, you could have a larger list.

Richard WELCH: And you are right, but I am just solving for the bad actor, in the case of a bad actor who may try to exploit a legal loophole to invalidate something; that is all. But that is fine; it is not the biggest issue. Under the disclosure to what includes family and friends, what redress will an employer have if a family member or friend subsequently breaks confidentiality to another party?

Jaclyn SYMES: Mr Welch, there is no specific redress, which is the current case now, so there may be other courses of legal action that people could take.

Richard WELCH: I am going to move on to the plain language part of it. The idea of plain language is sensible, but what advice has the government received on the use of the term ‘plain language’ to describe how an NDA may be composed? Is plain language an absolute standard, or is it a relative standard relative to the experience and abilities of the victim?

Jaclyn SYMES: Yes, it is relative and a matter for interpretation and not a new concept introduced by this bill.

Richard WELCH: Okay. So it is relative. I think that is an important point for people to understand. And again, just to confirm the answer to this: can the settlement be invalidated if the language is deemed not plain enough or is too legal? Who would determine this? Who is eligible to bring this?

Jaclyn SYMES: The advice is that it can be potentially, and it could be cause for a breach notice.

Richard WELCH: But who would determine that it was insufficiently plain language relative to the experience and abilities of the victim?

Jaclyn SYMES: Similarly to other contracts, it could be breach of contract that would be determined through court.

Richard WELCH: Okay. Last question. Under the terms of the law, the right to repudiate an NDA is perpetual. This does imply that no matter is ever truly closed. Is that your understanding as well?

Jaclyn SYMES: I disagree with the way you have phrased that. A settlement is finalisation of a matter. This is about the ability to share your story.

Richard WELCH: That was not my last question now. Yes, but given the sensitivity of these matters and the high reputational risk involved, the fact that maybe the terms of a settlement are not disclosed is almost secondary to the reputational risk of it because it is such a serious matter. In that sense the reputational risk is never settled.

Jaclyn SYMES: At the outset, I do not have a lot of sympathy for the reputation of perpetrators, Mr Welch. As I said, settlements are finalisations of matters in a legal sense, but the whole reason we are here is that NDAs do not end the pain and trauma of victims, so there is no finalisation for victims. Being able to talk about your story and getting acceptance of what happened to you is generally a better way of closure than signing anything.

Richard WELCH: I will leave it there.

Rachel PAYNE: Treasurer, my first question is just in relation to the 21-day review period. It often takes weeks to get a booking at a community legal centre. I am so sorry about my voice; I think I had too much fun last night. We are concerned that the 21-day review period for the complainant could be too short. What protections are in place to ensure that they will have adequate time to seek legal assistance?

Jaclyn SYMES: I am advised that it is a minimum and can be extended.

Rachel PAYNE: I have only got two more questions, both relating to data collection. In relation to the public reporting, will there be public data reported on NDA use following these changes?

Jaclyn SYMES: Thank you for your question, and it is an important question, because there will be no formal requirement to register NDAs, much in the same way as there is not now. That again goes to the importance of having the conversation and making sure that we get those stories, because they are going to inform the review – they are going to inform whether we need to make refinements. There is not an easy way to collect this data. I hope that through this legislation, through the conversations and through the advocacy we will start to hear more about it, which will be the best form of data. But there will be no formal requirement to log, for instance.

Rachel PAYNE: Speaking of the statutory review, will the findings of the review be made public?

Jaclyn SYMES: I was nodding and just got confirmation from the boss. Yes. All good.

Georgie PURCELL: I just have a few questions as well. Minister, could you please provide some insight into what will be examined as part of the legislative review and what information is intended to be made public as a result of the review?

Jaclyn SYMES: The review will examine, obviously, how the act is operating in practice. Some of the matters that we envisage being considered include whether NDA use is decreasing, whether workers are still being pressured into entering into NDAs, whether workplace sexual harassment matters are being resolved and whether NDAs entered into are being ended after the 12 months and the impact of this.

Given, as I said, there is no requirement for employers to report NDA use, it will be based on consultations with a lot of the people that have been calling for this, whether it is the union movement, employment lawyers or community legal centres. There will be consultation and surveys. We want to hear from those on the ground about how it is working, and obviously employers and workers will be part of that discussion. It will mean some sensitivities in what can be published around particular matters, but that would be usually pretty accepted in terms of what can be disclosed and what cannot. You would want the review to be able to be given as much information as possible. Obviously as we are dealing with potentially NDAs we will have some confidential issues to contend with, but the review will need to be tabled six months after the report has been given to the minister.

Georgie PURCELL: Are there explicit protections in this legislation so that there are no costs consequences for victim-survivors bringing breach notices?

Jaclyn SYMES: Yes, there are. Clause 24 provides that a term in a contract or other agreement to which the act applies is unenforceable to the extent that it requires a complainant to pay an amount to another party on the basis that the NDA is unenforceable. So, yes, the explicit protection is there.

Georgie PURCELL: Does the legislation ensure only the NDA is rendered void where there is noncompliance, not the broader settlement agreement, and victim-survivors retain all settlement payments?

Jaclyn SYMES: That is a matter that Mr Welch and I covered. That is correct, Ms Purcell. If the NDA is rendered void due to noncompliance, the broader settlement agreement is not impacted and the complainant would retain their settlement moneys.

Georgie PURCELL: My final question. There have been some queries from some agencies around whether their work would be captured by permitted disclosures under item 9 in schedule 1 of the bill. For example, services that provide support to victim-survivors via specialist sexual assault counsellor advocates may not be psychologists, but they are still offering important treatment. Under schedule 1 of the bill item 9 enables permitted disclosure to:

A mental health and wellbeing professional within the meaning of section 3(1) of the Mental Health and Wellbeing Act 2022 for the purposes of obtaining mental health or psychological support or treatment.

This is quite prescriptive, so could you clarify if these other services are intended to be included as a permitted disclosure?

Jaclyn SYMES: Sexual Assault Services Victoria do amazing work. These are the exact type of people that we want victims to be able to confide in and seek support from. I would expect that, based on SASVic’s functions, their services should still be covered under item 9 of the permitted disclosures, as you indicated, a similar response to which I gave to Mr Welch. The support we want victim-survivors to be able to access and the support and treatment that we want to them to be able to get should not be prohibited by an NDA.

Clause agreed to; clauses 2 to 7 agreed to.

Clause 8 (15:49)

The DEPUTY PRESIDENT: Ms Purcell, I invite you to move your amendment 1, which tests all of your remaining amendments.

Georgie PURCELL: I move:

Clause 8, lines 21 to 22, omit “before the complainant enters into the agreement, the complainant acknowledges” and insert “before entering into the agreement, each party to the agreement acknowledges”.

I covered this off pretty extensively in my second-reading contribution. This is a further protection that was raised to my office by the Working Women’s Centre Victoria.

Richard WELCH: The Liberals and Nationals will be supporting this amendment.

Jaclyn SYMES: I thank Ms Purcell for the amendments, and indeed I thank the Working Women’s Centre Victoria for their engagement. We support the amendment. Its aim is to ensure that respondents are aware and formally acknowledge that an NDA will not be valid unless the preconditions have been met. We would suggest that is the intention of the legislation, so the clarification is welcome.

Amendment agreed to; amended clause agreed to; clause 9 agreed to.

Clause 10 (15:50)

Georgie PURCELL: I move:

2.   Clause 10, line 15, after “agreement” insert “and acknowledgment”.

3.   Clause 10, line 19, omit all words and expressions on that line and insert “of –

(a) the signed agreement; and

(b) the acknowledgement referred to in section 8(1)(e).”.

Amendments agreed to; amended clause agreed to; clauses 11 to 15 agreed to.

Clause 16 (15:51)

Georgie PURCELL: I move:

4.   Clause 16, line 26, omit “complainant” and insert “parties to the agreement”.

Amendment agreed to; amended clause agreed to; clauses 17 to 24 agreed to.

Clause 25 (15:52)

Georgie PURCELL: I move:

5.   Clause 25, lines 28 to 31, omit “a complainant acknowledges that the following preconditions of a workplace non-disclosure agreement have been met” and insert “each party to a workplace non-disclosure agreement acknowledges that the following preconditions have been met”.

Amendment agreed to; amended clause agreed to; clauses 26 and 27 agreed to.

Clause 28 (15:52)

Richard WELCH: Minister, this is the review period. I think you wanted to provide some explanation. This bill does not operationalise for a year – is that right? Or does it come into immediate effect?

Jaclyn SYMES: What I was referring to in particular, Mr Welch, was that the waiver cannot be enacted until 12 months after the bill commences. The bill commences in six months is my advice. I will address your amendment now, if you like. The review clause would not start until the commencement of the bill, so it is not the actual enactment of the legislation that my concern with shortening the review period is. My concern with shortening the review period is you are really only getting 12 months of potential information, because that is the first opportunity for somebody to waive it. As I was explaining to Ms Payne, the ability to obtain data is going to be from surveys, conversations and trying to get as much information as we can. There is no formal mechanism to lodge and talk about every NDA. I know why you would like two years, and if I was confident that we would have the data, then that would not bother me. I think we are even going to struggle at three, to be honest. But again, my commitment would be to respond to ongoing feedback of how this is working. You do not need a formal outcome of a review to recognise that you might have to tweak some legislation. But this is a review in three years time because we think that is the earliest that it is going to be meaningful.

[The Legislative Council report is being published progressively.]