Bargon, a Senior Solicitor at Redfern Legal Centre and Featherstone, a Senior Lawyer at the Human Rights Law Centre (formerly at RLC) were interested in how the legal profession has responded to global movements like #TimesUp and #MeToo, along with the Australian Human Rights Commission Respect@Work Report (Respect@Work). The Respect@Work Report identified that NDAs, being confidentiality and non-disparagement obligations, were widespread and that they had the potential to be harmful and counter-productive by silencing victim survivors and concealing the behaviour of harassers. Recommendation 38 of the Respect@Work Report recognised the need for guidelines identifying best practice principles for NDA use. A key feature of these guidelines was to do away with the long-standing assumption that NDAs should be the starting point in every case and move to a more individualised approach.
Nearly one year after they were published, the researchers investigated the impact of the Respect@Work Council confidentiality guidelines by conducting quantitative and qualitative research with Australian legal practitioners. They examined how other countries have addressed the misuse of NDAs in sexual harassment matters, both by legislative reform and by reframing this as a legal professional conduct issue to consider sexual harassment prevention as an environmental, social and corporate governance obligation.
To facilitate practitioners moving to a more individualised approach to using NDAs to resolve sexual harassment matters, with the assistance of Clayton Utz, the researchers prepared draft model confidentiality clauses which may assist the profession when tailoring clauses to meet the needs of all parties in line with a victim-centric approach.
The model clauses in the Appendix to the “Let’s talk about confidentiality report” have been prepared by the researchers in conjunction with Clayton Utz for publication as general information only and do not constitute legal, accounting or other professional advice. In downloading this report and the model confidentiality clauses, you acknowledge and agree that the model clauses are provided for general information purposes only and are current at the time of first publication and you acknowledge and agree that you will make your own independent assessment of the material in the model clauses. You also agree that you will engage and rely on the work of your own advisers in relation to your own, and your organisation’s, specific circumstances. To the extent permitted by law, both the University of Sydney and Clayton Utz exclude all liability for any loss or damage arising out of reliance on the content in the model clauses. It should be noted that the content in the model clauses reflects best practice and, whilst supported by the authors, may not be representative of the Clayton Utz partnership as a whole. The contents of this report is current as at 6 March 2024.
