There are six preconditions that must be met for an NDA to be lawful.

1. The complainant must initiate the NDA

A workplace NDA is only valid if the person making the sexual harassment complaint requests it.

Lawyers acting for employers or respondents must not propose an NDA or pressure a person complaining to enter an NDA.

2. NDAs must be the complainant’s preference

It must be the complainant's express choice and preference. 

Lawyers acting for employers or respondents must not pressure a person making a complaint to enter an NDA.

3. The mandatory Information Statement must be provided before the NDA is signed

Before a workplace NDA can be entered into, the complainant must be provided with an NDA Information Statement.

Lawyers can find a copy of this Information Statement on the Victorian Government's website. 

4. Complainants must have at least 21 days to review the NDA 

The complainant must be given at least 21 days to review the NDA unless they agree to a shorter review period or waive the review period.

5. All parties must acknowledge the above preconditions were met

All parties must sign an approved acknowledgement form to confirm the prescribed preconditions have been met. Failure to meet any pre-condition renders the NDA unenforceable.

Lawyers can find a copy of the approved acknowledgement form on the Victorian Government's website.

6. Complainants cannot be unduly influenced or pressured to sign an NDA

It is unlawful for lawyers and their clients to pressure a complainant into asking for or signing an NDA. 

The preconditions don’t apply to some matters

The six preconditions do not apply to the parts of a workplace NDA that only deal with:

• any financial compensation paid to them (e.g. settlement money), and/or 
• the name of the person the complaint is about if that person was under 18 at the time of the alleged sexual harassment. 

1. Mandatory plain-language drafting

All workplace NDAs must be written in plain language. This is no longer best practice – it is a legal requirement.

2. Mandatory permitted disclosures

Workplace NDAs cannot prevent the complainant from discussing their experience of workplace sexual harassment with a range of people and bodies, including:

• lawyers
• medical and mental health practitioners
• police
• Independent Broad-based Anti-Corruption Commission, National Anti-Corruption Commission, Australian Human Rights Commission and Victorian Equal Opportunity and Human Rights Commission
• family or friends providing personal support
• the employer or a potential employer for the purposes of obtaining or maintaining work
• registered WorkCover agents
• the VLSB+C. 

Any clause restricting these disclosures is void. 

3. Right to terminate after 12 months

A complainant may terminate a workplace NDA on or after the first anniversary of the agreement. This right cannot be contracted out of. 

The complainant must give 7 days' written notice before ending the NDA using the Notice of Termination of Workplace Non-Disclosure Agreement form. 

If the NDA is part of a broader agreement (such as a settlement agreement), the rest of the agreement will continue to apply.  

4. Prohibition on penalty or repayment clauses

Any term requiring a complainant to pay money because an NDA becomes unenforceable or is terminated is void.

5. Limits on employer–respondent NDAs

NDAs between employers and respondents to sexual harassment complaints cannot prevent the employer from:

• investigating workplace sexual harassment
• disclosing material information to a prospective employer if allegations of workplace sexual harassment are substantiated.

Protected information (e.g., compensation amount, identity of a minor respondent) remains confidential.

6. Non-disclosure terms in employment contracts

A confidentiality term in an employment contract is unenforceable if it prevents disclosure of material information about workplace sexual harassment, except to the extent that it relates to protected information.

If the legislated preconditions for a workplace NDA are not met, the complainant may issue a breach notice. 

A person who receives a breach notice can apply to the Industrial Division of the Magistrates’ Court within 30 days for a determination if the preconditions were met. If no application is made within this timeframe, the NDA is deemed unenforceable.

The paramount duty of all lawyers practising in Victoria is the duty they owe to the court and to the administration of justice (R 3 of the Solicitors’ Rules and Cl. 4(a) of the Barristers’ Rules).

By their nature, confidentiality clauses are included in agreements that come into existence because of a dispute. Their purpose is therefore to avoid the risk of litigation and judicial consideration, at least partially. However, the potential for future court scrutiny of contractual terms remains a possibility (as is the case with any contract). For that reason, if you are involved in drafting, negotiating or advising on such a clause in the context of a workplace sexual harassment complaint, it is wise to keep in mind your paramount duty.

In addition to your obligations under the Restricting Non-Disclosure Agreements (Sexual Harassment at Work) Act 2025 (Vic) (NDA Act), you must uphold your professional obligations at all times by acting with integrity and professional independence (R 4.1.4 of the Solicitors’ Rules), and refraining from any actions that could undermine public trust in the justice system or damage the profession's reputation (R 5 of the Solicitors’ Rules and R 8 of the Barristers’ Rules).

Any contract ‘having a tendency, however slight, to interfere with the administration of justice’ is contrary to public policy. In A v Hayden [1984] HCA 67, Chief Justice Gibbs noted that the court will refuse to exercise its discretion to enforce an obligation of confidentiality when the consequence would be to prevent the disclosure of criminality which, in all the circumstances, it would be in the public interest to reveal.

You need to properly consider whether any provisions within an NDA could be void or unenforceable on the grounds of being contrary to public policy, unconscionable or obtained through undue influence — in addition to the legislative pre-conditions and requirements set out in the NDA Act.

Negotiations about the terms of a settlement agreement should ensure so far as possible the wellbeing and safety of the person who made the allegation, and be trauma-informed, culturally sensitive and intersectional.

Your duty to act in your client’s best interests (R 4.1.1 of the Solicitors’ Rules and R 35 of the Barristers’ Rules) requires that you fully explore the consequences of NDAs for your client and their individual circumstances.

Section 8(1)(a) of the NDA Act mandates that workplace sexual harassment NDAs can only be entered into if the person making the complaint requests it. Your role is not to treat confidentiality as a standard settlement term, but to advise within the boundaries of the legislative framework.

When representing a person making a complain, explain to them what disclosures are permitted, what limits an NDA may still impose and the consequences of requesting and entering into an NDA. 

When acting for an employer and/or an employee accused of sexually harassment in a workplace setting, you cannot approach confidentiality as an ordinary preference to be pursued as a matter of course. Advice and negotiations should be conducted in a way that complies with statutory requirements. 

Your duty to act in your client’s best interests does not override—and must be balanced against—your professional obligations to act with integrity and professional independence (R 4.1.4 of the Solicitors’ Rules).

In negotiating, drafting and advising clients on workplace NDAs you should also consider your duties to:

• be honest in all dealings (R 4.1.2 Solicitors’ Rules)
• avoid making statements which grossly exceed the legitimate assertion of your client’s rights or entitlement, and which mislead or intimidate another person (R 34.1.1 Solicitors’ Rules and R 49 Barristers’ Rules)
• avoid acting as a mouthpiece for your clients (R 17.1 Solicitors’ Rules). If a client’s instructions are inconsistent with your professional obligations, you must decide whether you can continue to act on behalf of that client.

These duties are particularly important when dealing with a person who is unrepresented, and in a position of vulnerability. Do not use someone’s lack of legal representation as an opportunity to apply undue pressure or oppressive tactics. Be aware of the power imbalances in a negotiation and consider how to minimise unfairness.

If you breach your professional or ethical obligations when negotiating, drafting, advising on, settling or entering into a workplace NDA, we may take a range of actions, including:

• making a finding of unsatisfactory professional conduct and orders (e.g. an order issuing a reprimand or fine)
• bringing charges against you before the Victorian Civil and Administrative Tribunal for unsatisfactory professional conduct or professional misconduct.

If you use an NDA improperly you may also face questions as to whether you are fit and proper to hold a practising certificate.