In December 2025 Victoria became the first Australian jurisdiction to regulate secrecy clauses in settlements of work sexual harassment complaints. These clauses are known as Non-Disclosure Agreements (NDAs). Similar laws have passed in Ireland, the United Kingdom, and some parts of Canada and the United States.
Whether these new laws have any real impact on reducing secrecy, and the prevalence of sexual harassment at work, will depend in part on whether the culture and practice of incorporating secrecy in legal settlements within the legal profession can be changed.
Secrecy provisions with strict confidentiality requirements, common in commercial and financial contracts, have crept into agreements settling sexual harassment complaints. These provisions have become almost standard. Yet they are not mandatory, and they should not be the norm in sexual harassment settlements.
They often restrain the victim-survivor from talking about their experience or the settlement. This has been found to be damaging to the wellbeing of victim-survivors. It has masked the prevalence of sexual harassment in workplaces. In large part it is the perpetrators and the employing organisations who benefit, by keeping their reputations intact.
The Victorian Government’s Restricting Non-disclosure Agreements (Sexual Harassment at Work) Act 2025, which passed into law in December 2025, followed campaigns by unions and community advocates. Under this new law, settlements with confidentially clauses will only be valid when they are requested by the victim-survivor. There are quite complex rules around what information (material or protected) can be caught by confidentiality provisions, making it difficult for victim-survivors to understand their rights.
The law also gives victim-survivors 21 days to consider the terms of any agreement before they sign it (unless this period is waived or reduced by the victim-survivor). Employers and individual respondents (perpetrators) are not allowed to exert pressure on the victim-survivor.
If these requirements are not met, the settlement agreement may be unenforceable. Victim-survivors can issue a breach notice, which an employer can defend in Court. Unfortunately, this places the onus on the victim-survivor to police whether the law is being met.
The laws were intended to change the power imbalance facing victim-survivors of sexual harassment when their legal claims are settled. It is unclear if this has been achieved. Victim-survivors need to be educated on their rights and have the capacity (economic, physical and emotional) to pursue these rights. How many will be aware of their rights and able to purse them after experiencing sexual harassment? The processes involved in the investigation of their complaint is brutalising.
Whether the laws will have their intended impact therefore depends in part on whether lawyers, particularly those advising employers and perpetrators, take the intention behind the new laws seriously. This will require changes in practices and legal culture.
Lawyers have been part of creating a culture of secrecy surrounding sexual harassment at work. Now they need to be part of the solution.
Before these laws being adopted, the Victorian Legal Services Commissioner, the regulator of lawyers in Victoria, had raised concerns about the pursuit of NDAs in sexual harassment cases. Whilst victim-survivors may benefit from clauses that protect their privacy and result in settlements that are financially beneficial, it said that this secrecy has also been used to ‘cover up unlawful conduct and to protect the reputations of alleged sexual harassers and their organisations.’
The consequences could be to ‘facilitate repeat offending and inhibit oversight by executives and boards, who may be unaware that complaints have settled confidentially.’
The Commission also reminded lawyers of their professional and ethical obligations when drafting, negotiating and advising on confidentiality clauses in sexual harassment cases. Lawyers for victim-survivors needed to be more aware of the impact of secrecy on their clients. It also pointed to professional and ethical obligations on those advising employers. These included considering the reputational risks of protecting perpetrators who may re-offend and the dangers from not addressing systemic issues that make workplaces unsafe.
The new Victorian law is a compromise. It has fallen short of banning NDAs and secrecy.
It remains to be seen if it goes far enough to change the entrenched culture in legal practice of requiring secrecy for a settlement.
If the requirements in the new laws are treated by lawyers and their clients as a series of technical hoops to jump through, and secrecy is still pursued in sexual harassment settlements, the opportunity to reduce the prevalence of sexual harassment and improve the well-being of victim-survivors may be lost.
In a submission to the inquiry which preceded the adoption of these laws, David Peetz and I argued for greater transparency about the practices associated with settling sexual harassment claims leading to greater accountability. To promote transparency, we proposed that a register for these agreements be kept, allowing an independent third party to review their content and to check for repeat offenders.
The external scrutiny we argued for may also prompt the cultural shift needed to ensure lawyers go beyond advising on the minimum requirements to comply with the law. It may encourage employers to focus less on secrecy and more on preventing sexual harassment.