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Non-disclosure agreements (NDAs) and confidentiality clauses have come under increasing scrutiny in recent years, particularly in the context of workplace misconduct, healthcare incidents and sexual harassment settlements. While the use of such clauses has long been considered standard legal practice, the tide of public policy has us rethinking their role, purpose and impact.
The arguments for and against blanket clauses
It’s understandable why many organisations, and their lawyers, prefer imposing broad obligations of confidentiality on their employees or when settling a dispute. Some of the legitimate reasons include that doing so:
- creates a ‘clean slate’;
- protects against reputational damage (more on this later); and
- provides greater control over how sensitive information becomes public.
From both a legal and ethical standpoint however, overly broad NDAs can be problematic. They can work to prevent individuals from seeking support from family, friends, and even professionals like lawyers and healthcare providers if not appropriately drafted to allow such disclosure. This is particularly relevant where the confidentiality obligation arises in the context of a traumatic event. Individuals subject to these obligations have even described them as ‘retraumatising’.
The reputational consequences of the use (and enforcement) of confidentiality clauses are more complex than they may seem. The short-term view that broad NDAs protect an organisation from reputational harm fails to consider the damage that overuse of these clauses can create. In the court of public opinion, ‘it’s not the crime, it’s the coverup’ can ring true. The use of overly broad NDAs to gag women was central to much of the reporting on the class action litigation against Rio Tinto and BHP for systemic sexual harassment and gender discrimination at mining sites. Similarly, media coverage of a sperm sample mix-up involving patients at Queensland Fertility Group focused on the IVF clinic having “silenced” the parents who remain “terrified of speaking today”.
Legislative & Policy Reform
The Respect@Work Report, published in January 2020 by the Australian Human Rights Commission, brought the issue of confidentiality clauses into national policy discourse. Focusing on the context of workplace sexual harassment, it recommends a shift away from assumptions of blanket confidentiality and advocates instead for an individualised approach that considers the issue on a case-by-case basis.
In late 2024, Ireland enacted a law that renders void any NDA that prohibits an employee from disclosing experiences of discrimination, harassment, sexual harassment or victimisation unless:
- the employee requests the NDA;
- the employee has obtained independent written legal advice (with the employer to cover the reasonable cost of that advice);
- the NDA states that it does not prohibit disclosure to certain professionals; and
- the NDA includes a 14-day cooling off period during which the employee can withdraw from it without penalty.
The Irish reforms were a world first and have formed the basis for similar proposals in other jurisdictions, including in Victoria where the Ministerial Taskforce on Workplace Sexual Harassment recommended that they be used as the model for reform.
Although workplace harassment has been the primary focus of policy discussions in this space, recent reforms have expanded into the healthcare arena. The Health Practitioner National Law was amended in April to retroactively make confidentiality clauses void to the extent that they limit good-faith notifications to a regulator. The reforms also make it an offence for health care providers to enter into an NDA unless the terms clearly set out that regulatory disclosures are permitted.
Best Practice
The need for confidentiality should always be considered on a case-by-case basis and parties should consider what exclusions may be appropriate. For example, allowing disclosure to healthcare providers, close friends and family, regulators and other professionals. It’s also important to be aware of any industry-specific requirements to avoid falling foul of any applicable guidelines and legislation.
If your organisation uses NDAs or confidentiality clauses, particularly in a standard form, now is the time to review them and consider whether they remain appropriate and fit for purpose.
Whether you are negotiating a dispute and unsure what role confidentiality should play or want to review your existing agreements in light of these policy developments, our team can help with practical advice tailored to your needs and circumstances.
Last updated: 10 November 2025
