On 1 July 2026, Victoria became the first Australian jurisdiction to restrict the use of non-disclosure agreements in workplace sexual harassment matters. The Restricting Non-disclosure Agreements (Sexual Harassment at Work) Act 2025 passed the Victorian Parliament in November 2025 and received Royal Assent on 2 December 2025. It was proclaimed to commence on 1 July 2026, with 1 November 2026 sitting behind it as the automatic default had proclamation not happened first. The law is now in force.
For Victorian employers, this changes how sexual harassment complaints can be resolved, effective immediately. For employers everywhere else in Australia, it is the clearest signal yet of where regulation of workplace NDAs is heading, and a reason to look hard at the confidentiality clauses sitting in standard settlement templates. This article explains what the new law does, who it catches, why it exists and what to review, wherever the business is based.
What the new law does
The Act restricts when an employer can enter into a workplace NDA that limits what a worker can say about workplace sexual harassment. The starting position is now reversed. An employer cannot ask a worker to sign an NDA preventing them from speaking about their experience of workplace sexual harassment or naming the person alleged to have engaged in it. A confidentiality restriction is only permitted where the complainant themselves requests it, because staying private is their genuine choice and preference.
The restriction is deliberately wide in what it catches. It applies to any term that restricts disclosure of workplace sexual harassment, whether it appears in a settlement agreement or an employment contract, and it reaches indirect silencing too: confidentiality and non-disparagement clauses that would have the same practical effect are caught alongside clauses labelled as NDAs. Employers are also prohibited from pressuring a complainant toward confidentiality, whether by intimidation, threats or financial incentive.
What the Act does not restrict
Three carve-outs matter for day-to-day practice. Confidentiality about the amount of compensation paid is not restricted, so the settlement figure can still be kept private in the ordinary way, and the same applies to the name of a person who harassed a worker if that person was under 18 at the time. Lawful and reasonable confidentiality directions given for the purposes of a workplace investigation are also unaffected; the Act regulates agreements about what happened, not the directions that protect a live fact-finding process.
The preconditions when a complainant does want confidentiality
Many complainants genuinely want privacy, and the Act preserves that choice. But an NDA entered at the complainant's request is only valid where a set of preconditions is met:
- the complainant must be given the prescribed information statement published by the Victorian Government, explaining what the NDA means and what rights it cannot remove
- a 21-day review period applies before signing, giving the complainant time to consider the terms and obtain legal advice if they wish; the complainant, and only the complainant, can ask to shorten or waive that period
- each party must acknowledge, in an approved form, that the preconditions were satisfied
- the complainant keeps a right to change their mind later: after 12 months they can terminate the NDA's disclosure restrictions by written notice
Two details in that list deserve emphasis. The review period exists so legal advice is available, but the Act does not make independent legal advice mandatory; it protects the opportunity, not an obligation. And the 12-month termination right releases the confidentiality restrictions, not the settlement itself. The commercial resolution stands; the silence becomes optional.
That last point is the one many employers will find hardest to absorb. Under the old settlement logic, confidentiality was permanent and priced in. Under the new law, an employer entering a complainant-requested NDA in Victoria is buying, at best, twelve months of certainty followed by the complainant's ongoing choice. Businesses that treated the NDA as the main thing they were paying for will need to rethink what a resolution is actually for.
Even a valid NDA has limits
An NDA that satisfies every precondition still cannot stop a complainant disclosing material information about workplace sexual harassment to certain people and bodies, including Victoria Police, medical professionals and legal practitioners, along with other prescribed recipients. The legislation treats access to police, health care and legal advice as a floor that no agreement can trade away.
For employers, the practical meaning is that confidentiality under the new regime protects against publicity, not against scrutiny. A worker who has signed a fully compliant NDA can still report the conduct to police, seek treatment, and brief a lawyer, and nothing in the agreement can be drafted around that.
Who is caught
The Act applies where the complainant usually works in Victoria, or, if they work across more than one jurisdiction, where they are based in Victoria for their work. The employer's principal place of business in Victoria matters only as a fallback, where there is no single jurisdiction in which the complainant usually works. Notably, government guidance confirms the reach follows the worker, not the incident: harassment that physically occurs in Victoria is not captured where the complainant usually works interstate. An employer headquartered in Sydney or Brisbane with staff who usually work in Victoria should assume the Act reaches settlements involving those staff.
The law applies to NDAs entered into on or after 1 July 2026; agreements signed before commencement are unaffected. Employers do not need to reopen historical deeds, but every resolution signed since 1 July 2026 is in the new world.
What happens to a non-compliant NDA
The enforcement mechanism is also worth understanding precisely, because it is not a penalty regime. There is no fine and no regulator issuing infringement notices. A non-compliant NDA is simply unenforceable against the complainant. The employer is left holding a settlement in which the confidentiality it paid for does not exist, which for many businesses is a sharper consequence than a penalty would have been.
How resolution conversations change in practice
The workable habit under the new law is to let the complainant lead on confidentiality and to document that they did. If privacy comes up, the question is theirs to raise and theirs to answer, and the file should show the information statement provided, the review period offered, and the acknowledgment completed. Timelines shift too: a resolution with a Victorian connection now needs to build in the 21-day review period unless the complainant chooses to shorten it, which sits awkwardly with the end-of-quarter urgency that often drives settlement negotiations.
None of that is drafting guidance, and the detail of any particular deed belongs with the lawyer who prepares it. The point for HR and business owners is upstream of drafting: the assumption that a complaint ends in guaranteed mutual silence is no longer safe in Victoria, and planning around that assumption starts before any agreement is on the table.
Where this came from
None of this arrived suddenly. Victoria's Ministerial Taskforce on Workplace Sexual Harassment, established in 2021, found that NDAs were frequently misused in sexual harassment matters: deployed to silence victim-survivors, protect employer reputations, avoid full accountability and, in the worst cases, conceal serial offending. Its recommendation that the Victorian Government legislate to restrict NDA use in workplace sexual harassment cases is the one this Act implements.
The national groundwork runs deeper still. The Respect@Work report examined the use of NDAs in harassment matters in 2020 and warned that routine confidentiality can contribute to a culture of silence, hiding repeat conduct from the very systems meant to surface it. The Respect@Work Council followed with national guidelines in 2022: confidentiality clauses should never be a default term, should be as limited in scope and duration as possible, and should be considered case by case. Anyone who read those guidelines closely saw this legislation coming four years out.
Victoria first, others watching
Victoria has now converted that guidance into law. It is the first jurisdiction to do so, and so far the only one, though South Australia has publicly committed to consultation on similar reform. The direction of travel is not ambiguous.
Why employers outside Victoria should care
The practical reasons come first. Multi-state workforces mean many businesses outside Victoria already employ people the Act covers, and template settlement deeds tend to travel across state lines inside a business without anyone rereading the confidentiality clause. A Queensland business with a Melbourne sales rep, or a national employer whose head office happens to sit in Victoria, is dealing with this law now, not watching it from a distance. A standard deed drafted in 2023 and reused ever since may produce an unenforceable NDA the next time it is signed with a Victorian connection.
There is also a workforce-expectation dimension. Workers increasingly know these protections exist, and a candidate or employee who has followed the public conversation about NDAs will read a heavy-handed confidentiality clause as a signal about culture, whichever state the employment contract nominates.
The positive duty connection
The strategic reason sits underneath. Under the federal positive duty in the Sex Discrimination Act, employers must take reasonable and proportionate measures to eliminate sexual harassment, and the Australian Human Rights Commission's compliance standards expect transparency about the nature and extent of reported conduct. Reflexive NDAs work directly against that expectation, burying the pattern data a business needs to manage its own risk. A fuller explanation of the positive duty is in the Brookvale HR Solutions guide to the positive duty to prevent sexual harassment. Employers in every state now face the same underlying question Victoria has answered by statute: whether silence is a risk-management strategy or a risk.
What to review now
This is an awareness and preparedness exercise, not a drafting one, and nothing here is legal advice on any particular agreement. The review list for HR and business owners is short:
- Settlement templates. Any deed used to resolve complaints should be checked against the Act's preconditions before it is next used with a Victorian connection: complainant request, information statement, review period, acknowledgment form.
- Employment contracts. Standard confidentiality and non-disparagement clauses deserve a fresh read, since the Act catches terms that silence indirectly, not just documents titled NDA.
- Complaint-resolution practice. How the business responds when a complaint is raised, and whether outcomes lean on confidentiality by habit, is now a live question. Matters serious enough to require a formal workplace investigation frequently end in negotiated resolutions, and those resolutions are exactly where these rules bite.
- Prevention posture. The less a business relies on settling complaints, the less any NDA rule matters to it. A prevention program of the kind contemplated by the Positive Duty Plan reduces the number of matters that ever reach a deed.
Businesses that engage Brookvale HR Solutions for complaint handling and investigations get this review as part of the conversation. Call Daniel on 1300 23 44 23 if your settlement templates have not been looked at since before July 2026.
