On 2 December 2025, the Restricting Non-Disclosure Agreements (Sexual Harassment at Work) Act 2025 (Act) received Royal Assent. This new law restricts the use of non-disclosure agreements (NDAs) and confidentiality clauses in respect to workplace sexual harassment.
The Act will commence on 1 November 2026 and will not have retrospective effect.
NDAs have typically been proposed, and agreed to, by both employers and employees to keep the details of workplace sexual harassment allegations, incidents and associated outcomes, confidential. This can have benefits for both parties including to maintain a complainant’s privacy. However, recent findings of Ministerial Taskforce on Workplace Sexual Harassment in Victoria (Taskforce) suggest that NDAs are being misused to ‘silence’ workers who have been subjected to sexual harassment, which is usually not the intention of employers or NDAs generally.
On the Taskforce’s recommendation, the Victorian Government passed the Act, marking a significant shift in how NDAs may be utilised and imposing restrictions on employers’ use of NDAs specifically.
While Victoria is the first jurisdiction in Australia to limit the use of NDAs in respect to workplace sexual harassment, jurisdictions in Ireland, Canada and the United Kingdom have passed similar legislation in recent years.
Key Changes and Restrictions
The key restrictions on the use of NDAs imposed by the Act, include that:
- NDAs must be requested by the complainant;
- The complainant must not be subject to undue pressure or undue influence by the employer to enter into a NDA;
- NDAs must be written in clear and plain language;
- The complainant must be given a review period of 21 days before signing a NDA (which can be waived at their request);
- The complainant must be provided with a ‘Workplace non-disclosure agreement information statement’ during the 21 day review period before the signing of a NDA. Note: at the time of writing this statement has not yet been published.
Complainants can also unilaterally terminate NDAs after 12 months by providing 7 days’ written notice.
Further, NDAs must not prevent:
- the disclosure of ‘material information’ about workplace sexual harassment to certain individuals and government bodies including lawyers, friends or family of the complainant, Victoria Police, medical practitioners and financial advisors or tax agents. Material information includes the identity of the respondent (unless the respondent is under 18 years old) and details about the alleged conduct constituting the sexual harassment;
- an investigation by the employer into workplace sexual harassment; and
- where allegations are substantiated – disclosure by the complainant’s employer of details about the commission of workplace sexual harassment or the respondent’s identity to a prospective employer of the respondent.
These restrictions apply to both confidentiality and non-disparagement provisions, to the extent they relate to disclosure of material information about workplace sexual harassment.
NDAs which do not meet the requirements above, will be unenforceable.
Who does this law apply to?
As this is a Victorian law, the Act applies to workplace sexual harassment that is ‘connected’ to Victoria because:
- The complainant usually works in Victoria;
- The complainant is based in Victoria for the purposes of their work (if there is no jurisdiction in which the complainant usually works);
- The principal place of business of the complainant’s employer is in Victoria (if there is no jurisdiction in which the complainant usually works); or
- The workplace sexual harassment occurs or allegedly occurs in Victoria (if a connection to a particular jurisdiction is not established under any of the points above).
Takeaways for Employers
The Act will not have retrospective effect and will only apply to NDAs entered into after 1 November 2026. Nevertheless, in preparation for the commencement of the Act, Victorian employers should take proactive steps to review their approach to managing workplace sexual harassment. The Act also applies in parallel to Federal obligations under the Sex Discrimination Act 1984 (Cth) which requires employers to take proactive steps to eliminate workplace sexual harassment and other unlawful behaviours.
We also anticipate that other States and Territories will be watching the implementation and effectiveness of the Act closely, and it may be only a matter of time before similar legislation is passed elsewhere around Australia.
HR Legal offers comprehensive training and supports to assist employers to meet their legal obligations and confidently navigate sexual harassment laws, including Victoria’s new restrictions on NDAs. If your organisation requires assistance, please contact HR Legal’s experienced team today.
Sources:
Restricting Non-disclosure Agreements (Sexual Harassment at Work) Act 2025 (No. 51 of 2025)
Ministerial Taskforce on Workplace Sexual Harassment in Victoria Recommendations
