Calls to ban use of NDAs in sexual harassment cases in the private and public sector

Two years into her term, Dr Anna Cody called for legislation to restrict employers from using NDAs to prevent workers from speaking out about instances of harassment, discrimination or assault they may have faced on the job.

"They perpetuate a culture of silence, preventing us from identifying and addressing the drivers and barriers of workplace sexual harassment - especially when the victim-survivor is already facing systemic barriers like racism, visa insecurity and cultural stigma," Dr Cody told the National Press Club on Wednesday.

The former lawyer and academic said many companies in Australia treat non-disclosure agreements as a "standard template" for resolving discrimination cases.

"It's almost assumed by many employers," Dr Cody said.

"We have a lot of work to do to stop that practice."

The Albanese government's current policy is not to use NDAs in workplace sexual harassment cases unless they are initiated by a victim-survivor, but this is not enshrined in law.

Since 2022, there have been two cases where the use of confidentiality or non-disclosure agreements has been raised to the APS commissioner, according to a recent report published by The Saturday Paper.

Dr Cody said the proposed changes would include an amendment to allow for the use of secrecy agreements when requested by the victim-survivor.

"So we know that internationally, there has been precedent in Ireland and the UK that there has been legislation which actually outlaws the use of NDAs," she said.

"So certainly, there's room for both in government and in the private sector for legislation to catch both of them as employers."

The 2021 Set the Standard report found that one in three people working in Parliament had experienced some kind of sexual harassment, and a further third had experienced bullying.

The Australian Human Rights Commission released a landmark report in March, which found that many workplaces in Australia were failing to reduce instances of sexual harassment in their workplaces.

It outlined 11 recommendations, including an independent review of positive duty amendments and introducing civil penalties or fines for employers who fail to prevent inappropriate behaviour.

The Canberra Times reported last year that at least two federal agencies have been suspected of breaching a legal obligation that requires employers to take proactive steps to reduce sexual harassment.

Dr Cody said the introduction of positive duty laws marked a "vital shift" away from placing the burden on victim-survivors to report, but acknowledged there was still "a long way to go" to reform workplace culture.

She called for a national survey in 2026 to determine the prevalence and impact of workplace sexual harassment in Australia.

A spokesperson from the Attorney-General's department said an upcoming statutory review of the Respect at Work Act 2022 will provide a "timely opportunity" to consider the Human Rights Commission's recommendations, including a proposal to ban the use of non-disclosure agreements.