Rachel welcomed reforms to legislation on non-disclosure agreements in workplace sexual harassment cases.
Thursday the 20th of November,
Victorian Legislative Council
Rachel Payne (South-Eastern Metropolitan):
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.
Power imbalance and isolation
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 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.
1 in 3 workers in the past 5 years experienced sexual harassment at work
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.
Complainants can no longer be pressured into signing
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.
Lifting the weight of forced silence
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.
Before 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.
