‘It’s all secret and silent’: Confidentiality agreements that silence victims to be investigated

The use of non-disclosure agreements that have silenced sexual assault victims and perpetuated a culture of cover-up in workplaces will be reviewed as part of the Victorian government’s wide-ranging investigation into preventing sexual harassment at work.

A new ministerial taskforce, chaired by parliamentary secretary for workplace safety Bronwyn Halfpenny and Maurice Blackburn workplace injury lawyer Liberty Sanger, was established this year with the aim of making workplaces safer for women.

Liberty Sanger (left) and Bronwyn Halfpenny will co-chair a ministerial taskforce investigating ways to prevent sexual harassment within the workplace. Credit:Simon Schluter

As part of its work, the taskforce will investigate ways employers respond to sexual harassment, whether they should be forced to report all incidents of sexual harassment to WorkSafe, and the use of non-disclosure agreements to settle sexual harassment allegations.

“I think we need to think very carefully about whether non-disclosure agreements have done more harm than good,” Ms Sanger said.

“One of the things we’re very interested in, as we think about how we drive a culture of prevention, is how much of that is informed by transparency.

“Victims signed up to non-disclosure agreements are unable to tell the story, and so the next person who suffers and the next one and the next one doesn’t have any knowledge or information they can rely on as they try to bring their complaint forward and seek to be believed.”

Non-disclosure agreements are a legal contract that ban the parties from discussing the matters.

The controversial use of non-disclosure agreements in sexual harassment cases was brought to global attention in the Harvey Weinstein case, leading to the #MeToo movement, in which journalist Ronan Farrow uncovered a string of allegations against Weinstein (and other high-profile media personalities). Victims were effectively silenced because they signed confidentiality clauses.

The Royal Commission into Institutional Responses to Child Sexual Abuse also revealed how institutions had exploited non-disclosure agreements, and enabled churches to move paedophile priests around parishes.

Ms Sanger said she wanted to challenge lawyers who believed non-disclosure agreements could secure the victim more compensation.

“It’s become so much of custom and practice that we don’t look any more to see whether we really are securing a meaningful extra amount, and we’ve all got a responsibility as lawyers to think about what’s in the best interest of our clients, and let them know they might want to talk about this in 12 months, 24 months, three years,” Ms Sanger said.

“At the moment, it’s all silent and secret.”

“Is there a way we can keep what they want to keep private, as well as ensure that when they want to speak, if they want to speak, that they can?”

The use of non-disclosure agreements also prevents authorities being able to gather meaningful data on the rate of sexual harassment and assault in the workplace, Ms Sanger said.

“At the moment, it’s all silent and secret. So I have a challenge for the legal profession to think about whether non-disclosure agreements are actually helping to secure a resolution of any individual matter, or are they just becoming something we’re all used to?”

Workplace Safety Minister Ingrid Stitt announced the taskforce on March 8 to mark International Women’s Day amid a national reckoning of sexual harassment in the workplace following revelations federal government staffer Brittany Higgins was allegedly raped in Parliament House.

Victoria’s Public Sector Gender Equality Commissioner Dr Niki Vincent says organisations should not immediately resort to using non-disclosure agreements to settle sexual harassment allegations. Credit:Paul Jeffers

She said organisations should not immediately resort to confidentiality agreements to settle sexual harassment allegations, and each time they use it they should be asking themselves whether they are covering up systemic problems.

“There may be some value in non-disclosure agreements in limited circumstances, particularly if the victim of sexual harassment wants an NDA,” Dr Vincent said.

“However, the conditions you’ve just described [Weinstein and the Royal Commission into Institutional Responses to Child Sexual Abuse] are unethical uses of non-disclosure agreements to protect the organisation from public accountability and scrutiny, and to isolate victims. And in some cases, it inadvertently allows perpetrators to continue to perpetrate harm.”

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