Employment law · 24 September 2026
For decades the price of a workplace sexual harassment settlement has included the complainant's silence. In Victoria, from 1 July 2026, that silence can only be offered, never demanded. Here is what the Act does, and who it protects.
Who benefits when a workplace sexual harassment settlement requires silence?
For most of the last thirty years the honest answer has been: the employer, the person accused, and occasionally the insurer. The complainant got money and a gag. The next person to be harassed by the same manager got nothing, because nobody was allowed to warn them.
Victoria has now answered that question in legislation. The Restricting Non-disclosure Agreements (Sexual Harassment at Work) Act 2025 commenced on 1 July 2026. It does not ban non-disclosure agreements. It does something more precise: it makes them the complainant's choice, and only the complainant's choice.
The Victorian Government's own summary is unusually plain. A worker "cannot be asked to sign an NDA that prevents them from talking about their experience of workplace sexual harassment or naming the person who harassed them". An NDA is only available where the worker asks for one, and it must be "their choice and preference".
The safeguards are procedural, which is the point. The complainant receives the "Information statement: Non-disclosure agreements (NDAs) (workplace sexual harassment)". There is a "21-day review period (the complainant can request a shorter period or waive the review period altogether)". During that period "the complainant can obtain legal advice if they wish". All parties sign a prescribed acknowledgement form.
Practitioners summarising the Act have identified further protections. Certain disclosures remain permitted regardless of the NDA, including to legal practitioners, medical professionals, support persons, WorkSafe, Victoria Police, integrity bodies, the Australian Human Rights Commission, the Fair Work Commission and the Fair Work Ombudsman, and for practical purposes to Centrelink, financial advisers and tax agents. A party who believes the preconditions were not met has a window to apply to the Magistrates' Court. And after twelve months, the complainant may terminate restrictions on material information by giving written notice, while the amount of any compensation and the identity of a respondent who was under 18 stay protected.
Some complainants genuinely want confidentiality. They do not want their name attached to a harassment claim on the internet forever. They do not want to explain it at every job interview. They want to be paid and to move on. The Act preserves that choice absolutely.
What it removes is the other kind of NDA: the one that arrives as a condition of settlement, drafted by the employer's lawyers, presented as standard, and signed because the alternative is a hearing the complainant cannot afford.
The mechanism is elegant. Instead of trying to police the content of NDAs, the Act polices who initiated them and whether the complainant had time, information and independent advice before agreeing. Get that wrong and the agreement is unenforceable. Silence bought without those steps is silence the employer cannot rely on.
On 1 July 2026, the day the Act commenced, the Victorian Legal Services Board and Commissioner published updated guidance. Its language was direct: "Victorian lawyers who draft, negotiate, or advise on NDAs must familiarise themselves with the new Act to ensure they comply with its requirements." It restated the core rule: "the NDA must be initiated by the person who made the complaint about workplace sexual harassment." And it added the sentence that should be pinned above every employment lawyer's desk: "Failure to abide by the new requirements could see lawyers face disciplinary action."
That turns a drafting habit into a professional conduct issue. An employment lawyer who slides a confidentiality clause into a deed of release as boilerplate is no longer just drafting badly. They are exposing their client to an unenforceable agreement and themselves to their regulator.
The 2020 Respect@Work report by the Australian Human Rights Commission recommended the development of best-practice principles for the use of NDAs in workplace sexual harassment matters. National guidelines on confidentiality clauses followed in 2022, urging that such clauses be clear, fair, in plain English, considered case by case, and limited in scope and duration.
Victoria has gone further than guidelines. It is the first Australian jurisdiction to legislate. Internationally, Ireland's 2024 reform is the closest comparison: NDAs covering harassment and discrimination are void unless the employee requests them and receives written independent legal advice, with the employer required to cover the reasonable cost of that advice, and a right to withdraw without penalty within 14 days.
The complainant, first. They keep the option of confidentiality and lose the obligation to accept it.
The next employee, second. If a complainant chooses to speak, a pattern can become visible before it repeats.
Employers who take harassment seriously, third. A settlement that cannot rely on enforced silence is a settlement that has to rest on something else: an investigation, a consequence for the person responsible, and a workplace that has changed. That is a better product than a gag, and a cheaper one over time.
Who loses? Only the settlement model that depended on the complainant never being asked what they wanted.
No. From 1 July 2026, under the Restricting Non-disclosure Agreements (Sexual Harassment at Work) Act 2025, an NDA in a workplace sexual harassment matter is only permitted if the complainant requests it and it is their own choice and preference. A complainant cannot be influenced or pressured to sign one.
The Victorian Government states that if the preconditions have not been met, the NDA will not be enforceable. The legal regulator has also said that lawyers who fail to comply with the new requirements could face disciplinary action.
Before an NDA can be entered into, the complainant must be given a 21-day review period during which they can obtain legal advice. The complainant can ask for a shorter period or waive it, but the employer cannot impose a shorter period.
Yes. The Act preserves the complainant's ability to make certain disclosures regardless of the NDA, including to legal practitioners, medical professionals, support persons, WorkSafe, Victoria Police and integrity bodies, and to bodies such as the Australian Human Rights Commission, the Fair Work Commission and the Fair Work Ombudsman.
The Act is Victorian legislation and applies to workplace sexual harassment matters covered by it. Other states and territories have not legislated in the same way as at September 2026, although the national Respect@Work guidelines on confidentiality clauses apply as best practice across Australia.
The 2020 Respect@Work report recommended best-practice principles for NDAs in sexual harassment matters, and national guidelines followed in 2022. Victoria's Act, passed in November 2025 and commenced on 1 July 2026, is the first Australian legislation restricting these agreements.