Modernising the regulatory framework (c) December 2021 Non-disclosure agreements Transparency is also restricted through non-disclosure agreements (NDAs) between parties. For example, when discrimination complaints resolve through the Commission’s conciliation process, the settlement reached is typically formalised by way of a Deed of Release or Conciliation Agreement. It is very common for these agreements to contain specific terms regarding mutual confidentiality and nondisparagement obligations. The extent of these terms may be confined to the terms of the settlement agreement reached between the parties or may be considerably broader, encompassing the entirety of the subject matter of the complaint. Reform of the use of NDAs has been identified as a key issue in balancing confidentiality and appropriate transparency.70 The Respect@Work report noted that NDAs were often used in the settlement of sexual harassment cases, as well as other workplace matters.71 While a range of benefits for both parties was identified, the Commission also heard concerns about their use in sexual harassment cases, including that ‘they can contribute to a culture of silence, which disempowers victims, covers up unlawful conduct and facilitates repeat offending’.72 Recent consideration of limiting the use of NDAs and confidentiality clauses in the UK Similarly, in the UK, the EHRC has identified problems associated with NDAs in the context of workplace sexual harassment.73 In a report in 2018, the EHRC observed that NDAs prevented people from speaking about their experiences and reduced the likelihood of systemic problems being tackled. They recommended that such clauses should be more closely regulated.74 The EHRC recommended the introduction of a code of practice for organisations, which should set out when confidentiality clauses preventing disclosure of past acts of harassment should be void, and setting out best practice in the use of confidentiality clauses in settlement agreements.75 After a consultation process, the UK Government concluded that legislation should be introduced to: ensure that confidentiality clauses have clear limitations and do not prevent reporting to the police, regulated health and care professionals or legal professionals; and improve independent legal advice on settlement agreements.76 FREE AND EQUAL An Australian Conversation on Human Rights 109