What are my confidentiality obligations when making a sexual harassment complaint?
Last updated 10 February 2025
Last updated 10 February 2025
This page provides information if:
You are making a sexual harassment complaint; and
You want to understand your confidentiality obligations about the complaint process and outcome.
Visit Justice Connect’s legal information resources on sexual harassment: https://justiceconnect.org.au/help/
Sexual harassment involving criminal behaviour (such as sexual assault) can be reported to the police.
Confidentiality obligations are when you have a legal obligation to keep certain information private. There are different ways you might share information that could breach your confidentiality obligations.
Sharing confidential information may look like:
telling your family or friends what was said during the complaint process,
posting information about the complaint or outcome on social media,
forwarding an email related to the complaint process, or
speaking publicly or publishing information about the complaint or outcome.
These examples are to give you an idea of how confidentiality obligations can be breached, even if you don’t intend to.
What your confidentiality obligations are, and how you might breach them, will depend on the specific circumstances of your sexual harassment complaint and outcome.
If you share confidential information, the person you’ve made a complaint against may start legal proceedings against you. They may ask a court to order an injunction or damages.
An injunction may require you to do something or stop doing something. For example, not to do anything else to share the confidential information.
You may need to pay compensation to the other person for any damage caused by you sharing the confidential information.
If you make a sexual harassment complaint, you may need to keep some, or all of the information about the complaint process and outcome confidential.
You may have confidentiality obligations because of:
The type of resolution process you went through to address the complaint (eg. a confidential dispute resolution process), or
The type of agreement method used to settle the complaint (eg. a settlement contract with confidentiality requirements, or because of a court order).
You’ll most likely have the opportunity to participate in a dispute resolution process to address your matter. Dispute resolution processes generally have confidentiality requirements.
Types of dispute resolution processes include:
mediation,
conciliation, and
settlement conferences.
Confidentiality obligations will depend on the type of dispute resolution process and other factors.
Legally regulated dispute resolution processes, such as mediation or conciliation run by a court or tribunal, often require confidentiality.
Confidentiality obligations may be imposed in different ways. These may include:
a contract (eg. a settlement agreement),
an instrument or other official document (eg. enterprise agreement or modern award),
an order of a court or tribunal, or
other rule governing a formal dispute resolution process.
A settlement agreement does not need to include confidentiality requirements. However, the other party will often ask for non-disclosure or confidentiality clauses to be included in the settlement agreement.
It is up to you whether you feel comfortable agreeing to non-disclosure or confidentiality clauses. Understanding the consequences if you don’t sign a settlement agreement can help you make an informed decision.
Not signing a settlement agreement with non-disclosure or confidentiality clauses may prevent settlement.
Without agreement in a dispute resolution process, the complaint may go to court.
If you’re unsure about signing a settlement agreement, we recommend getting legal advice to understand the time and cost it might take to get another outcome. You may be eligible for free legal help through Justice Connect.
If everyone agrees on how to settle the sexual harassment complaint, the details of the agreement will usually be set out in a settlement agreement. Settlement will usually involve a sum of money, and the agreement may include confidentiality requirements (ie. non-disclosure or confidentiality clauses).
When a settlement agreement is signed, it creates a binding contract. If you sign a settlement agreement, you are legal bound to follow the details of the agreement.
In Australia, it is more common for a settlement agreement to include any non-disclosure and confidentiality clauses, rather than having separate documents (ie. non-disclosure or confidentiality agreements).
The Victorian Government accepted recommendations on 11 July 2022 to make laws prohibiting non-disclosure or confidentiality agreement in workplace sexual harassment matters.
The recommendations are not yet implemented, so non-disclosure or confidentiality agreements can still be used for workplace sexual harassment matters.
Unless a sexual harassment complaint goes through a legally regulated dispute resolution process, such as mediation or conciliation, parties can decide what information needs to be kept confidential.
The types of information that parties may agree to keep confidential include:
that a sexual harassment complaint has been made and the contents of the complaint;
that a settlement agreement has been entered into in relation to a sexual harassment complaint;
that compensation was paid as part of a settlement agreement;
the amount of compensation paid as part of a settlement agreement;
the identity of the perpetrator involved in the sexual harassment;
the identity of the complainant involved in the sexual harassment;
the events that led to the sexual harassment claim; or
all of the above.
Confidentiality obligations do not expire unless your settlement agreement, or other confidentiality agreement says so.
Generally, your settlement or confidentiality agreement will state that you can only share confidential information about your sexual harassment complaint if the other party consents.
There may be times when you need to disclose confidential information by law if:
you receive a court-issued subpoena to provide evidence or go to court;
you need to comply with requirements under specific legislation; or
you are asked by a regulatory body such as a work health and safety regulator (eg. SafeWork NSW, WorkSafe Victoria or Safe Work Australia).
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This resource was last updated on 10 February 2025. This is legal information only and does not constitute legal advice. You should always contact a lawyer for advice specific to your situation. Please view our disclaimer for more information.