Workplace Sexual Harassment NDAs Are Void From 1 November 2026 — What It Means for You

From 1 November 2026, non-disclosure agreements (NDAs) entered into in connection with workplace sexual harassment matters will be void and unenforceable against the alleged victim. The ban applies to NDAs entered into on or after the commencement date. It is part of the Australian Government's response to the Respect@Work report and mirrors similar state bans already in force in NSW (September 2025) and Victoria (December 2024).

Use the FWM NDA Enforceability Check to test a specific NDA against the ban, the pre-existing common-law unenforceability rules, and key public-policy filters (regulator reporting, professional advisor access).

The ban targets one specific kind of clause: contractual provisions that prevent an alleged victim of workplace sexual harassment from speaking about the conduct, the response to it, or the settlement. The ban makes these clauses unenforceable AGAINST the victim — meaning the victim cannot be sued for breaching them.

The ban does NOT prevent:

• Confidentiality of settlement amounts. An employer can still pay a settlement and require that the dollar figure remain confidential, where the victim freely agrees. The ban is about silencing the underlying conduct, not the financial terms.
• NDAs against employers or other parties. An employer who agrees to keep a victim's identity confidential can still be bound by that.
• Pre-employment confidentiality. Trade secrets, commercially-sensitive information, and operational confidentiality clauses unrelated to harassment are unaffected.

The shift is fundamental but narrow: a victim cannot be required to stay silent about what happened to them as a condition of receiving a settlement.

No. The ban applies prospectively to NDAs entered into on or after 1 November 2026. NDAs signed before that date remain technically in force.

However, NDAs signed pre-ban are not automatically enforceable either. Several common clauses have been unenforceable under existing common law and statute for a long time, regardless of when the NDA was signed:

• Any clause that purports to prevent you reporting unlawful conduct to a regulator (ASIC, Fair Work Commission, Australian Human Rights Commission, Worksafe, police)
• Any clause that purports to prevent you giving truthful evidence to a court, tribunal, or police investigation
• Any clause that purports to prevent you seeking legal, medical, psychological or registered tax advice
• Any clause that is contrary to public policy in its scope (e.g., gagging the disclosure of criminal conduct)

For pre-ban NDAs covering harassment, the Federal Court has signalled in several decisions that broad gag clauses are vulnerable to public-policy challenge even before the legislative ban kicks in. The legislative ban makes the public-policy argument unnecessary going forward.

For workers being asked to sign an NDA in connection with a harassment complaint:

• You can still negotiate. Settlement amounts are negotiable. The ban doesn't change your leverage on the dollar figure.
• You can still keep terms confidential. If you choose to keep the settlement amount confidential, that's your right. The ban targets compelled silence, not voluntary confidentiality.
• You don't have to be silent about what happened. Post-ban, you can settle, take the money, and still speak openly about the conduct itself, the perpetrator, or the workplace failures that allowed it. This is the core shift.
• Always get legal advice before signing. Workplace lawyers typically charge $500-$2,000 for an NDA review. Most NDAs are negotiable — employers expect to amend the first draft. Don't sign anything under pressure.

Employers and HR teams need to review and update standard settlement templates before 1 November 2026:

• Remove broad confidentiality clauses that cover the underlying conduct
• Keep amount and specific-term confidentiality only where the worker freely chooses
• Update internal complaints handling to assume the matter may become public
• Review existing harassment settlements — pre-ban NDAs are not automatically void, but employers should be cautious about enforcing them given the changed political climate and Federal Court precedent
• Strengthen the underlying culture, complaints handling, and positive duty compliance (Sex Discrimination Act s 47C). The positive duty has been in force since December 2022 and the Australian Human Rights Commission now has investigative and enforcement powers

The shift incentivises employers to focus on preventing harassment in the first place rather than managing the legal fallout. The Respect@Work positive duty is the more important compliance burden — getting it wrong exposes employers to AHRC investigation, compliance notices, and ultimately court action.

If you signed an NDA before 1 November 2026 covering harassment you suffered, and you now want to speak about it, get specialist legal advice first. The options usually look like:

1. Challenge specific clauses as unenforceable. Most NDAs contain at least one clause that's already void (regulator reporting, professional advisors, truthful evidence). Identifying these gives you immediate disclosure rights without breaching the contract.
2. Renegotiate. Some employers will agree to release a victim from an NDA, particularly given the changed regulatory climate. A solicitor's letter requesting release is often successful.
3. Apply to court for a declaration. The Federal Court can declare specific clauses unenforceable on public-policy grounds. Expensive and slow but available in serious cases.
4. Speak through a regulator. You can always make a complaint to the AHRC, FWC, FWO, or police regardless of an NDA — clauses purporting to prevent this are unenforceable.

If your NDA is bothering you, run it through the FWM NDA Enforceability Check first to understand what's already void. Then get specialist legal advice on the rest.