December 2021 Modernising the regulatory framework In the Respect@Work inquiry, the Commission concluded that a practice note or guideline should be developed that identified best practice principles for the use of NDAs in workplace sexual harassment matters to inform the development and regulation of NDAs. The Commission also recommended that the Commission do this, in conjunction with the proposed Workplace Sexual Harassment Council.77 The Government agreed with this recommendation, establishing the Respect@Work Council and saying it will ask the Council to develop guidance that identifies best practice principles for the use of NDAs in workplace sexual harassment matters.78 Reflecting on the Government’s response, Maria Nawaz commented that This issue is extremely pressing – the majority of sexual harassment matters settle, with many deeds of settlement including confidentiality clauses, which effectively silence victims/survivors from speaking out about their experience. Confidentiality also means systemic sexual harassment remains concealed and perpetrators who are frequent harassers are shielded from accountability. In the development of this guideline, the wishes of the victim/survivor should remain centred. There are benefits to confidentiality, such as protecting the victim/survivor’s privacy and reputation for future employment, particularly in small industries. Guidance could be drawn from reform of NDAs overseas. For example, New York State introduced a prohibition on the use of NDAs in settling sexual harassment and discrimination cases, unless the complainant requests it (Consolidated Laws of New York State, General Obligations Art 5, s 5–336).79 Allen and Blackham advocate that a review of confidentiality clauses should scrutinise the use of NDAs in all discrimination settlements. There are strong reasons for publicising the outcomes of discrimination complaints, particularly where employers are repeat offenders. It may be desirable to negotiate that employers make a public statement relating to any claims that are settled, acknowledging the discriminatory conduct in a public way. This has the potential to act as a significant deterrent, and a prompt for systemic change.80 The Commission agrees that such guidance should be developed on the appropriate usage of nondisclosure agreements and confidentiality provisions in all discrimination matters. The guidance materials that will be prepared in relation to sexual harassment complaints should be utilised as a pilot for further guidance across all other protected attributes in federal discrimination law. 110 FREE AND EQUAL An Australian Conversation on Human Rights