From The Point: NDAs are still being overused

A new report has confirmed that strict non-disclosure agreements (NDAs) remain the “default option” for sexual harassment settlements.

The Redfern Legal Centre paper, Let's Talk About Confidentiality, has revealed that despite the Respect@Work report by the Human Rights Commission issuing guidelines about the use of NDAs a year ago, approximately 75 percent of Australian lawyers working on harassment cases had “never resolved a sexual harassment complaint without a strict NDA”. 

The IEU has backed the campaign against the use of non-disclosure agreements (NDAs) for years, and we have run several stories about the issue in The Point.

Trades Hall Council’s anti-NDA campaign.

The report’s findings underline that more is needed to combat the practice.

Authors Regina Featherstone and Sharmilla Bargon say, "broad and exhaustive NDAs (being blanket confidentiality and non-disparagement terms) remain the default confidentiality term used by lawyers in workplace sexual harassment settlements in Australia". 

As a result, the "widespread use of strict NDAs means we continue to know very little about what is happening with sexual harassment in our workplaces and the impact of recent law reform in curbing perpetrator behaviour". 

Many of the lawyers surveyed considered the agreements “standard practice”, and NDA use was now “so entrenched that many practitioners do not advise of the option of not having one”.

They said their use became “concerning when it is adopted as a blanket, standard agreement, and victim-survivors are denied true choice”.

The Respect@Work report guidelines state that NDAs “should not be seen as standard terms in workplace sexual harassment settlement agreements”.

The six-point guidelines include that the complainant should have access to independent support or advice, and the scope and duration of the agreement should be as limited as possible.

Featherstone and Bargon said their research showed the guidelines “have had limited effect in addressing the misuse of NDAs”.

In the UK, Can’t Buy My Silence (CMBS) anti-NDA campaigners have urged the legal profession to support legislative reform to stop the abuse of non-disclosure agreements.

CMBS wants the UK government to expand the law which bans NDAs in cases of harassment, sexism, bullying and discrimination to the entire workforce.

Jennifer Robinson, co-author of the book, How Many More Women? Exposing how the law silences women wrote the foreword to Let's Talk About Confidentiality.  She says, “we need an approach to NDAs which better protects freedom of speech and the public interest in employees being able to speak out about sexual harassment and gender-based violence – and ensures that women are not being unfairly silenced”.

“How can those that misuse their power be held accountable if they are protected by a legally enforced culture of silence that enables impunity?” Robinson asks. “How can there be a cultural shift if we cannot know or learn about how the most powerful operate?”

In July 2022, it was announced that Victoria would be the first Australian jurisdiction to introduce legislation which prohibits the use the use of NDAs in workplace sexual harassment cases.

However, the Victorian Government said “significant further work” was required before any legislative amendments could be made to regulate NDAs.

Those laws can’t come soon enough.