Kim O’KEEFFE (Shepparton) (11:27): I rise to make a contribution to the Restricting Non-disclosure Agreements (Sexual Harassment at Work) Bill 2025. This is a bill for an act to promote the health, safety and wellbeing of persons at work by regulating non-disclosure agreements relating to sexual harassment at work and for other purposes. In doing so, the bill seeks to restrict the circumstances in which non-disclosure agreements can be entered into, limits the terms that may be included and sets out the conditions under which non-disclosure agreements can be enforced. The bill seeks to address significant power imbalances in the NDA process, which often leave victim-survivors of workplace sexual harassment feeling intimidated and forcibly silenced.
Before we talk about laws and policies we must remember the human reality that lies behind this bill. Sexual harassment is not a moment of misunderstanding or discomfort; it is a profound violation of a person’s dignity and safety, one that leaves lasting scars long after the incident itself – or incidents – which are ongoing. Victims describe the experience as isolating, humiliating and disempowering. Many develop anxiety, depression or post-traumatic stress. Some cannot sleep, and others withdraw from their colleagues or lose confidence in their own abilities. It affects their health, their careers and their sense of belonging in the workplace. The Australian Human Rights Commission’s Respect@Work report finds that around 70 per cent of those who have experienced workplace sexual harassment suffered significant emotional distress, and nearly one in three have left their job as a result. In Victoria alone over a thousand formal complaints were made last year, and we know many more incidents go unreported. Yet for too long non-disclosure agreements have deepened this harm. They have silenced victims, forcing them to carry trauma in private while protecting the reputations of perpetrators and organisations. That silence compounds the pain. It tells survivors that their experience must be hidden and that justice must be quiet.
As you may be aware, I ran a business in the service and training industry for almost 30 years. I had a salon that had 12 staff. My clients were 99 per cent women, and my staff were all women. When you are with clients one on one and over a period of time, you build friendship and you build trust. As you can imagine, I heard lots of things – I heard lots of private things – and in particular I heard too much of women that were facing or going through sexual harassment at work.
I had women raise exactly what we are talking about today: sexual harassment that they were experiencing in the workplace.
I recall one incident quite significantly where the woman was quite young. She was climbing the career ladder, and she felt that if she spoke up, she would put her job at risk. She was also concerned about others not believing her. This went on for months, and as you can imagine, I tried to mentor her. I was not a lawyer and I was not a counsellor. I was very careful and I was always very mindful when I spoke with women in such a personal and profound way. But what I did recommend to her was that she perhaps get a counsellor to give her some guidance, because I felt at the time that she was suffering mentally. I also had a friend in the police force who I suggested she could mention this to, who maybe could assist her in addressing it. She did that. She actually took up both of those options because she cared very deeply about her future. She also cared very deeply about the other workers around her and what their perception of her perhaps would be if she did come forward. Eventually she did go to her boss, and do you know what she was told? To stop being so friendly and that perhaps she was sending out the wrong vibes. She did end up leaving, which was wrong, because she had done nothing wrong. I think this story is one of the reasons why we are here today, and it is one of the many stories where people are so profoundly impacted. As I said, this woman actually left her job. It should have been taken seriously. She had the right to have a safe workplace, and the business had a duty of care. That perpetrator, who was at a senior level in the organisation, got away with it.
I do want to point out schedule 1 sets out a very prescribed list of permitted disclosure entities, which may lead to exclusion simply because the list is not exhaustive. Sexual Assault Services Victoria, which we know are an organisation that many people will go to for help and assistance, are concerned that organisations such as themselves are not listed and therefore are excluded. Also, I want to raise the point that this bill does not address prevention of sexual assault. This raises a significant missed opportunity. We need to make sure that if there are issues in workplaces, there should be almost a mandatory type of inclusion, I think. In workplace safety maybe there needs to be something included in there that can actually address this – not accusations – and also have an environment where people feel comfortable to actually come forward, speak their piece and raise issues. At the moment I think we are not focusing on prevention. We are not doing enough to make change through this bill that will make a significant difference and have a significant impact. The bill does not place a blanket ban on non-disclosure agreements. Rather, the bill seeks to ensure that non-disclosure agreements are used appropriately only in the circumstances in which they genuinely serve the interests of the complainant.
The bill before the house seeks to implement and act on recommendation 10 of the Victorian ministerial taskforce on workplace harassment. The taskforce itself was established in 2021 by the then Andrews government to develop reforms that will better prevent and respond to sexual harassment in workplaces. In doing so the taskforce made a total of 26 recommendations to the government across four main areas, those being preventing sexual harassment from occurring, supporting workers to report sexual harassment, enforcing compliance when there is a breach of health and safety duties, and raising awareness and promoting accountability in workplaces across Victoria. To date, following the taskforce’s final report to the government, the government has accepted 12 recommendations, accepted in part two recommendations, accepted in principle seven recommendations, noted one recommendation and considered that four recommendations require further consideration, yet we are only addressing one of the 26 recommendations in this bill. Recommendation 10 of the taskforce inquiry recommended that the Victorian government introduce legislative amendments to restrict the use of non-disclosure agreements in relation to workplace sexual harassment cases in Victoria using the Irish Employment Equality (Amendment) (Non-Disclosure Agreements) Bill 2021 and lessons from other jurisdictions such as the United Kingdom and the United States as the model for reform. The question stands as to why it has taken more than three years for this piece of legislation to come before the Parliament, given that the ministerial taskforce delivered its final report to the government back in 2022. The report itself had identified that non-disclosure agreements are often misunderstood and misused to silence victims, protect employer reputations and shield serial offenders from accountability.
The Australian Human Rights Commission has also called for similar legislative reforms, noting that unrestricted non-disclosure agreements can perpetuate harm.
The reality today is that non-disclosure agreements have become common in the settlement of workplace sexual harassment complaints, yet they remain largely unregulated, not only across the country but particularly in this context. We have also seen other jurisdictions across the world act in this space, such as Ireland and Canada, both states which have introduced models centred on complainant choice, recognising profound power imbalances exist when a victim-survivor faces an employer in such negotiations. Power imbalances often leave victim-survivors feeling pressured, intimidated and ultimately silenced. This is an incredibly distressing and emotional time for any individual to go through, let alone experience – something no-one should have to go through. But what we have before us is a bill that seeks to change this, a bill that seeks to establish key preconditions that must be met before a workplace non-disclosure agreement can be entered into.
Importantly, though, a non-disclosure agreement may only be proposed if it is requested by the complainant and only if it is their express wish to do so. In practice this means an employer or respondent cannot require a complainant to keep confidential any material information about a sexual harassment incident unless it is at the complainant’s request. This is all about choice, and this is incredibly important. These are deeply distressing circumstances, and we must have legislation in place that does protect the rights and dignity of those affected by these matters. Also, it should be noted that this bill does not prevent employers from settling a workplace sexual harassment claim through a legal release or confidentiality over settlement amounts, where appropriate and lawful. If a complainant does not choose to request a non-disclosure agreement, the bill does require that they be provided with a workplace non-disclosure agreement information statement and a review period of at least 21 days to consider the agreement and seek legal advice. A complainant can choose a shorter period or waive it altogether if they wish.
We must restore choice and ensure that survivors of workplace and sexual harassment are not silenced and that they are heard. We must make sure that there are better processes in place. I think we also need to really stop and think about preventative measures so that we do not have people going through these incidents and we do not have organisations having to deal with these circumstances. I do not think it will ever, ever disappear. I think unfortunately there is always going to be more work to be done, and we have a duty of care to make sure that happens in the right way.