Does the legislation apply to organisations headquartered outside Victoria? And what steps should HR take now to ensure compliance? An employment lawyer answers these and other questions about the new rules.

The Restricting Non-Disclosure Agreements (Sexual Harassment at Work) Act 2025 became law in Victoria on 1 July, limiting the use of non-disclosure agreements (NDAs) in the resolution of workplace sexual harassment matters.

For organisations with a presence in Victoria, the implications are significant, says Fay Calderone, Partner at Hall & Wilcox and an employment expert.

“Confidentiality can no longer be treated as a standard settlement term in workplace sexual harassment matters in Victoria,” she says.

Organisations operating elsewhere should pay close attention, too, says Calderone.

“Although Victoria is the first Australian jurisdiction to introduce a comprehensive legislative framework restricting the use of NDAs in workplace sexual harassment matters, the reform reflects broader policy and regulatory trends,” she says.

“Victoria’s model is likely to be closely monitored by policymakers, regulators and advocacy groups and may well influence future State, Territory and Federal reforms.”

Below, Calderone answers six common questions about the new legislation, including how it interacts with existing sex discrimination laws and whether historical NDAs are still valid.

1. Under the new Act, when is an NDA valid and enforceable?

“There are six mandatory pre-conditions that must be satisfied in order to make an NDA enforceable under the new Act,” says Calderone:

• The complainant must request the NDA.
  
  “Organisations and their representatives cannot suggest or request that the complainant enter into an NDA.”
• It must be the complainant’s ‘express wish and preference’.
  
  “The complainant must enter into the NDA because they genuinely have a desire for confidentiality. For example, a complainant may want confidentiality because they do not want details of a highly personal experience discussed in their workplace or broader industry.“They may also want the space to move forward without ongoing attention or scrutiny, particularly where they remain employed in the same sector,” says Calderone.
• The complainant must be provided with the government’s pro forma NDA information statement.
  
  “The statement explains the legislation and the complainant’s rights. It must be provided to the complainant after they request the NDA and before they sign it.”
• The complainant must be given a 21-day review period.
  
  “Unless the complainant requests a shorter period or waives the review period entirely, they must have at least 21 days to review the proposed NDA.”
• The pre-conditions must be acknowledged.
  
  “Each party to the NDA must acknowledge in writing that the above four pre-conditions have been met.”
• There must be no undue influence or pressure.
  
  “The complainant must not feel obligated or pressured into requesting or entering into the workplace NDA by their employer, the respondent or either of those parties’ representatives,” says Calderone.

“For example, pressure may arise where an employer suggests a complainant will receive a higher settlement if they agree to confidentiality, a lower settlement if they do not, or that they will only receive a favourable reference if they request confidentiality.

“Any request for confidentiality must be genuinely voluntary, rather than influenced by real or perceived consequences.”

“Victoria’s reforms may be viewed as part of a broader national movement towards limiting confidentiality provisions that silence victim-survivors while preserving their ability to choose confidentiality where they want it.” – Fay Calderone

The Act also expressly requires that the NDA be written in plain language and that the complainant be provided with a copy of the acknowledgement form and the executed NDA, Calderone notes.

2. What if we have employees in Victoria but our business is headquartered elsewhere?

Importantly, the Act is not limited to employers headquartered in Victoria, says Calderone.

“The key question is whether the workplace sexual harassment matter itself is connected to Victoria.”

Examples of a sufficient connection include:

• If the complainant usually works in Victoria; and
• In some circumstances, if the alleged conduct occurred in Victoria.

“For example, a business may be headquartered in Queensland, but if the complainant usually works in Victoria, the Victorian NDA restrictions may still apply to the resolution of that workplace sexual harassment complaint,” says Calderone.

One nuance worth noting is that the Act’s Explanatory Memorandum establishes a hierarchy of connecting factors, with where the complainant usually works being the primary consideration.

“It also expressly states that there is no intention for the Act to apply simply because conduct occurred in Victoria where the worker usually works in another state,” says Calderone.

3. How does the Act interact with our positive duty under sex discrimination laws?

The reforms complement, rather than replace, an employer’s positive duty obligations, says Calderone.

“The Victorian NDA restrictions reinforce the expectation that employers address workplace sexual harassment proactively rather than relying on confidential settlements to suppress discussion of misconduct,” she says.

A legally compliant settlement will not, on its own, satisfy an employer’s obligation to create a safe workplace if underlying risks and behaviours remain unaddressed, she adds.

4. What happens to NDAs that were signed before 1 July 2026?

The reforms are not retrospective, says Calderone.

“That means NDAs entered into before 1 July 2026 are not affected by the new legislation and will continue to be governed by the legal framework that applied at the time they were signed.”

Even so, Calderone cautions employers against using the existence of historical NDAs as a justification for leaving workplace cultural issues unaddressed.

“Workplace sexual harassment is an issue that requires ongoing prevention, leadership accountability and cultural change,” she says.

Practical steps include:

• Regularly reviewing sexual harassment policies and complaint procedures;
• Ensuring reporting pathways are trusted and accessible;
• Training leaders on their obligations, including line managers and operational leaders who make or break your processes;
• Monitoring workplace culture through worker feedback; and
• Taking visible action where inappropriate behaviour is identified.

“Organisations should also ensure compliance with their positive duty to take reasonable and proportionate measures to eliminate sexual harassment, sex discrimination and related unlawful conduct as far as possible.

“The aim of these laws is to put a fence at the top of the hill rather than an ambulance at the bottom. The focus should be on prevention, not just settlement.”

“The aim of these laws is to put a fence at the top of the hill rather than an ambulance at the bottom. The focus should be on prevention, not just settlement.”

5. Can an employee sign an NDA today and change their mind a year later?

“Potentially, yes,” says Calderone. “The legislation allows a complainant to terminate a workplace NDA after it has been in place for 12 months by giving seven days’ written notice.”

Employers should also be aware that an existing NDA may not be enforceable if the statutory requirements were not met when it was entered into.

“For example, an NDA may be vulnerable to challenge if it was proposed or insisted upon by the employer rather than requested by the complainant, or if the complainant was pressured or influenced to agree to it,” says Calderone.

“Issues may also arise where the prescribed process was not followed, such as where the complainant was not provided with the required information statement, was not given the required review period, or the parties failed to complete the required acknowledgements.

“In those circumstances, the NDA may not be enforceable against the complainant.”

6. What steps should HR take in response to the legislation?

Calderone recommends HR undertake a review of documents and processes in response to the Act, including:

• Removing standard confidentiality provisions that assume the employer can require an NDA;
• Creating a Victoria-specific NDA process that incorporates the statutory requirements; and
• Updating precedents, checklists and settlement protocols to reflect complainants’ ongoing disclosure rights.

But she says employers should avoid treating any review simply as a document-compliance exercise.

“The lesson emerging from recent government reviews is that organisations achieve the greatest reduction in legal, safety and reputational risk when they focus on prevention, psychologically safe reporting pathways, effective investigations, leadership capability and addressing systemic issues before complaints arise.”

She also recommends employers consider the Australian Human Rights Commission’s guidance on confidentiality clauses, which addresses the cultural and systemic impacts of NDA use and the practical challenges that may arise where employers operate across multiple jurisdictions with differing legal requirements.=

“Against that backdrop, Victoria’s reforms may be viewed as part of a broader national movement towards limiting confidentiality provisions that silence victim-survivors while preserving their ability to choose confidentiality where they want it,” she says.

“The key message for organisations is that limiting the use of NDAs, in Victoria or elsewhere, is not simply about settlement terms,” she says. “It is about ensuring organisations identify, address and learn from harmful conduct rather than treating confidentiality as a routine risk-management tool.”

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Fay Calderone is a Partner at Hall and Wilcox and the author of Rise Up, a guide to leading with inclusion.

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