Amend the Sex Discrimination Act 1984 (Cth) (SDA) and Anti-Discrimination Act 1977 (NSW) (ADA) to regulate the use of non-disclosure agreements (NDAs) or confidentiality agreements in sexual harassment matters.
The #MeToo movement continues to highlight the devastating impact of sexual harassment on women in Australia and globally. The finding of an independent investigation earlier this year that a former High Court Justice sexually harassed 6 court workers made the point yet again – that sexual harassment is occurring in all occupations and all parts of life. Men who hold power over women often perpetrate it, and women who experience it are often faced with legal consequences for speaking out.
NDAs are a major barrier to people who have experienced sexual harassment from sharing their stories. Although NDAs can benefit people who have experienced sexual harassment, they are often imposed to silence them and protect perpetrators from accountability. Their unregulated use is driving a culture of silence, where sexual harassment is going unaddressed.
The SDA and the ADA should be amended to regulate the use of NDAs. The laws should prohibit NDAs unless requested by people who have experienced sexual harassment, and prohibit clauses that prevent the disclosure of factual information in sexual harassment matters.
Emma Golledge is the Director of the Kingsford Legal Centre.