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On 1 July 2026, changes to Victorian laws surrounding Non-Disclosure Agreements (NDAs) came into effect, with the aim that employees who have been sexually harassed in the workplace are no longer coerced into silence.
Background
On 1 July 2026, the Restricting Non-disclosure Agreements (Sexual Harassment at Work) Act 2025 (Vic) (the Act) commenced, following the Victorian Ministerial Taskforce into Workplace Sexual Harassment. The Taskforce noted that NDAs were often misused to silence victims, protect employer reputations and avoid full liability, often also hiding serial offending and offenders.
Prior to this, a study by the Australia Human Rights Commission in 2018 found that out of 7,813 people surveyed to be in the workforce, 33% of workers had been sexually harassed, with 26% identifying as male, and 39% identifying as female.
During the second reading speech in both chambers of Parliament for the Act, members of the Australian Labor Party suggested that NDAs are “compelling victim-survivors to stay silent” regarding workplace sexual harassment. Further, that “this culture of secrecy hides serial offending and prioritises employer reputations over prevention of workplace sexual harassment and victim recovery.”
The purpose of the Act is to promote health, safety and welfare of persons at work, and address the power imbalance between an employee and an employer when negotiating terms of an NDA. Restrictions were placed on the circumstances in which NDAs relating to workplace sexual harassment can be entered into, as well as placing restrictions on the terms in the document and the enforceability of such.
What is an NDA?
The Act defines an NDA as a contract or other agreement – in this circumstance, between an employee and employer – “with the purpose or effect of preventing a person who is party to the agreement from disclosing certain information, regardless of whether that purpose or effect is achieved directly or indirectly.” Generally, the NDA will prohibit disclosure of protected information, including the amount of any financial compensation payable in respect of the sexual harassment, and if the respondent is under 18 years of age, the identity of the respondent.
New preconditions that apply to NDAs
As a result of the Act coming into effect, there are six preconditions that must now be met/satisfied for a lawful NDA regarding sexual harassment in the workplace to be entered into.
These preconditions include the following:
- Only you, as the worker/employee, can request an NDA about workplace sexual harassment. Your workplace cannot suggest or ask you to sign an NDA of this kind.
- The NDA may only be entered into when it is your express wish and preference to do so. You have the right to change your mind and are encouraged to seek legal assistance if you feel pressured into entering into an NDA.
- You must be provided with an Information Statement after requesting the NDA and prior to signing.
- You must also be provided with a minimum of 21 days to review the NDA and be provided with the opportunity to seek legal advice regarding the NDA prior to signing. The Victorian Government recommend seeking legal advice before signing an NDA to ensure you understand the terms.
- Before signing the NDA, an Acknowledgement Form must be signed by both parties if you believe the aforementioned preconditions have been met.
- Finally, the sixth precondition in the Act outlines that you may not be unduly influenced or pressured into signing an NDA. If you believe you have been unduly influenced, including by being bribed or blackmailed into signing an NDA, please seek legal advice immediately.
What happens if my employer breaches these preconditions?
If your employer breaches these preconditions, we recommend first seeking legal advice. You may also refuse to sign the NDA, however, if the NDA has already been signed, you may serve your employer a ‘breach notice’. Your employer will have 30 days to respond to this notice, and it may lead to a court’s intervention.
A breach notice is a document served to other parties to a workplace NDA when the preconditions have not been met. It states that if no party makes an application to the Industrial Division of the Magistrates Court for an order in relation to enforceability within 30 days of receiving the breach notice, the preconditions of the NDA will be taken to have not been met, thus creating an unenforceable NDA.
What other rights do I have?
As a worker/employee, you have the right to end an NDA 12 months after the date it was entered into, however, the NDA must have been signed after 1 July 2026. We recommend seeking legal advice to ensure the NDA is correctly and appropriately entered into, and to ensure that you understand the possible results of consequent legal action, including a defamation suit, should you publish material that seriously harms another.
If you are not bound by an NDA, you are not bound to keep the sexual harassment confidential. If you are bound by an NDA signed after 1 July 2026, you are permitted to disclose the sexual harassment to people or organisations such as Victoria Police, medical and legal professionals without breaching your NDA.
Moving forward
This Act is a step in the correct direction, as these preconditions allow for much stricter regulation of NDAs pertaining to workplace sexual assault. However, one may argue that it may not be completely effective, as it is not a blanket ban on NDAs. Sexual harassment will regrettably continue to occur in the workplace, however, this Act will allow victims to make more informed choices when resolving workplace sexual harassment disputes.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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