AUSTRALIA Trends and Developments Contributed by: Kathy Dalton, Jane Wright, Lauren Barel and Ena Stojkovic, Workdynamic Australia
• clearly communicate expectations regarding confi - dentiality and authorised recording; and • adopt transparent and consistent investigative pro - cesses that will withstand scrutiny should a covert recording emerge. While covert recordings may raise legal issues under surveillance and privacy laws, they also emphasise the importance of procedural fairness, robust ques - tioning and accurate record‑keeping. Adopting AI carefully Artificial intelligence (AI) is increasingly recognised as having significant potential to improve both investiga - tion efficiency and investigator productivity. AI‑enabled tools are increasingly being used to assist with tasks such as document review, chronology building, analysing evidence gaps and creating evi - dence summaries. However, it is well known that AI has limitations, in that it cannot assess credibility, context, tone or demean - our, nor can it apply nuanced judgement. AI outputs can also reflect errors or biases inherent within the datasets on which they are trained. AI use also creates privacy risks, and employers must ensure that it is deployed only for a lawful purpose and in a way that upholds confidentiality and proce - dural‑fairness obligations. Employers considering AI tools must ensure that: • the purpose of use is lawful; • confidentiality obligations are upheld; • data is stored securely; and • procedural fairness is not compromised by auto - mated outputs. As AI capabilities continue to evolve, it is likely to become a standard feature of complex workplace
closely with the regulatory frameworks already in place across other Australian jurisdictions. While the obligation to manage psychological risks is not new, recent reforms signal an increasing focus by regula - tors on how employers prevent, respond to and man - age psychosocial harm. Workplace investigations now form an increasingly central component of employers’ compliance efforts in this space. A poorly structured or delayed investi - gation can expose employers to allegations of failing to identify, assess or control psychosocial risks. Con - versely, robust and fair investigative processes help employers demonstrate that they are meeting their duties under work health and safety laws. Employers should therefore expect: • closer scrutiny of workplace culture, systems and responses to complaints; and • a higher expectation that investigative processes will reflect trauma‑informed and person‑centred principles. Victoria’s NDA reform From 1 November 2026, the Restricting Non-disclo - sure Agreements (Sexual Harassment at Work) Act 2025 (Vic) will take effect (the “NDA Act”). The NDA Act was introduced following findings in the Respect@ Work report, which expressed concerns that the use of non-disclosure agreements (NDAs) can contribute to a “culture of silence”. The NDA Act introduces significant changes to the use of NDAs in the resolution of workplace sexual harass - ment matters in Victoria. In particular, several precon - ditions must be satisfied before parties can enter into a workplace NDA, including that: • it must be requested by the complainant; • undue influence or undue pressure must not be exerted on the complainant in relation to their deci - sion to enter into the NDA; and • it can be terminated after 12 months. If these preconditions have not been met, the agree - ment will not be enforceable to the extent that it pre - vents the complainant from disclosing the identity of
investigations. Legal Updates Managing psychosocial hazards
From 1 December 2025, Victoria introduced regula - tions for managing psychosocial hazards that align
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