Somewhere over the Indian Ocean and scrolling aimlessly through in-flight entertainment, I landed on The Loudest Voice – a TV miniseries dramatising the rise and fall of Roger Ailes, the powerful and controversial founder of Fox News. It wasn’t just the portrait of a media empire that gripped me – it was a story about power, silence, and the systems that protect both.
As someone immersed in the world of workplace investigations, I was hooked. Here was a narrative that hit all the pressure points: institutional complicity, media influence, and most strikingly the use of non-disclosure agreements (NDAs) to bury allegations of sexual harassment.
It’s a familiar sequence of events. A powerful man is accused, a settlement is reached, and an NDA ensures the story goes no further.
But the Ailes case didn’t fade into the background, it was a tipping point. When former Fox News anchor Gretchen Carlson sued Ailes in 2016, she bypassed the NDA she had signed with the network.
Her case opened the floodgates. More women came forward, and their voices helped fuel what would become a global movement for change.
The Australian context: Are we doing enough?
This global shift in awareness has not left Australia untouched. Following the US example, the use of NDAs in sexual harassment cases has come under increasing scrutiny here as well. This is particularly evident in the broader national efforts to address gender inequality, workplace safety, and legal transparency.
The Australian Human Rights Commission’s landmark 2020 Respect@Work report put the issue in the spotlight. It found that NDAs are routinely used in sexual harassment settlements and may contribute to repeat offending by shielding perpetrators and silencing victims. The report recommended tighter controls to ensure NDAs are not misused in ways that undermine justice or public interest.
In response, several Australian jurisdictions have begun exploring reforms. In 2021, Victoria amended its Equal Opportunity Act to give the state’s Human Rights Commission greater power to investigate systemic harassment – even where NDAs might otherwise limit disclosure. Similar proposals are now under consideration in New South Wales, and at the federal level.
While Western Australia has taken steps to address workplace harassment, the state has yet to enact specific laws regulating NDAs in this context. Ongoing advocacy and national discussions may influence its legislative developments in the future.
Legal experts and advocacy groups argue that NDAs in sexual harassment cases should only be permitted under strict safeguards such as:
- Any consent to an NDA must be genuinely informed and free from coercion – especially in situations involving significant power imbalances.
- Independent legal advice must be included as a condition.
- Complainants should be able to speak to law enforcement or regulators.
- Protect the right to share their experiences without naming names.
What leaders and employers can do
If you are in a position of leadership, use legal compliance only as a starting point. Here are some practical suggestions to consider:
- Review your use of NDAs: Are they only designed to protect reputation and power?
- Ensure transparency: Develop a clear and fair policy on the settlement process.
- Seek legal advice with empathy in mind: Use NDAs only when it aligns with the complainant’s wishes – not as a default risk-management tactic.
- Invest in prevention: Prioritise respectful behaviour training, clear reporting channels, and independent investigations.
I believe Ailes’ legacy is a cautionary tale for us all. This case didn’t just expose abuse of power; it revealed how secrecy, sanctioned by law through NDAs can become complicit in harm.
But it doesn’t have to be this way. We can help change the narrative individually and collectively.
If done right, Australia has an opportunity to lead, not follow. Stronger safeguards, complainant-centred policies, and real consequences for misuse could reshape how workplace sexual harassment is managed fairly and effectively.
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The author, Rebecca Taseff, is a highly regarded workplace investigations specialist with over 20 years’ employment law experience. She is the founder of RLT Consulting.