Let's talk about confidentiality
This project was made possible by the Kim Santow Endowment.
The project, led by inaugural Social Justice Practioners-in-Residence Sharmilla Bargon and Regina Featherstone, is based on empirical research conducted among Australian legal practitioners and scrutinises the prevalence and impact of NDAs, particularly focusing on their use in workplace sexual harassment settlements.
Despite significant reforms and heightened awareness catalysed by global movements like #MeToo, the default practice of employing broad and exhaustive NDAs persists among lawyers in Australia.
Key findings reveal that approximately 75% of legal professionals have never resolved a sexual harassment complaint without a strict NDA.
This prevalence underscores a significant barrier to transparency and accountability, inhibiting the public's understanding of workplace harassment dynamics and the effectiveness of recent legal reforms.
Moreover, negotiations surrounding settlement terms are often hindered by the assumption that strict NDAs are standard practice.
This not only stifles dialogue but also limits victims' ability to seek support and share their experiences.
The lack of uniformity in NDA usage further complicates the landscape, with some lawyers advocating for carve-outs to allow victims to speak to essential support networks.
Alarmingly, a substantial portion of legal practitioners fail to advise clients on alternatives to NDAs, potentially breaching professional legal obligations.
This highlights the need for comprehensive and nuanced advice that empowers clients to make informed decisions about their legal proceedings.
Recognising the international misuse of NDA’s as a tool to conceal harassment and protect perpetrators, our report emphasizes the importance of regulatory measures within legal practice.
Recent developments in Victoria underscore the evolving discourse around the ethical use of NDAs, highlighting the professional duty of lawyers to act with integrity and independence while advocating for their clients' best interests.
While the prevalence of strict NDAs remains a challenge, the research offers glimmers of hope, with a notable proportion of lawyers successfully resolving matters without exhaustive confidentiality clauses.
These successes underscore the importance of advocacy and education within the legal profession to promote tailored, victim-centric outcomes.
The project's report serves as a call to action for the legal profession to re-evaluate the use of NDAs in workplace sexual harassment settlements.
By prioritising transparency, fairness, and victim rights, we can collectively foster a legal landscape that promotes accountability, supports survivors, and drives positive change in addressing workplace harassment.
About the team
Regina Featherstone has been working to secure the rights of refugee and migrant workers since she started practising law.
She is a Senior Lawyer in the Human Rights Law Centre Whistleblower Project and brings a unique expertise to empowering clients to right wrongdoing and breaking down structural barriers that prevent truth-telling.
Sharmilla Bargon is a specialist employment and discrimination law practitioner.
She is a Senior Solicitor at Redfern Legal Centre and coordinates the Employment Rights Legal Service, a statewide employment rights service in NSW. She enjoys assisting migrant workers and working on broader law reform campaigns to achieve systemic change.