AUSTRALIA Trends and Developments Contributed by: Kathy Dalton, Jane Wright, Lauren Barel and Ena Stojkovic, Workdynamic Australia
the respondent and the conduct that constituted the sexual harassment. This NDA reform reflects a cultural shift towards greater transparency, accountability and survivor‑led processes. For workplace investigations, this reform will likely shape investigation practice in several ways, includ - ing as follows: • it reinforces the person-centred, trauma-informed approach by requiring NDAs to be complainant‑ini - tiated and free from pressure; and • there is increased importance on ensuring that investigations are more robust and legally defensi - ble, as they may be scrutinised by regulators, the courts and the public. Although the reform is currently limited to Victoria, it forms part of a broader national policy trend about the appropriate use of confidentiality mechanisms in resolving complaints of sexual harassment. Gender-based violence in the tertiary sector From 1 January 2026, universities will be required to comply with the National Higher Education Code to Prevent and Respond to Gender‑based Violence (the “Code”), with non‑university higher education provid - ers expected to follow from 1 January 2027. The Code sets out seven mandatory standards detail - ing how higher education providers must prevent and respond to gender‑based violence (GBV). Some of the key standards include: • safe, person‑centred responses for both complain - ants and respondents, including restrictions on the use of NDAs; • safe and timely processes, with formal reports to be finalised within 45 business days (including disciplinary steps) and appeals within 20 business days; and • knowledge and capability, including annual spe - cialised training for anyone likely to receive a GBV disclosure.
Universities will need to reinforce their investigation frameworks to meet their obligations under the Code as non-compliance can carry significant consequenc - es, including civil penalties. More broadly, the Code marks another shift in workforce and workplace man - agement, in that investigations are no longer an iso - lated HR function but a key component of an organi - sation’s broader responsibility to prevent harm and address psychosocial risk. The Code thus marks a significant shift in the sector, moving institutions away from reactive, incident‑based responses and towards proactive, system‑wide pre - vention and early intervention. This represents an emerging trend in workplace and student‑related investigations. Conclusion The developments discussed in this article reflect a broader shift in how employers are expected to man - age workplace conduct, culture and safety. As regu - latory obligations continue to expand – particularly in relation to psychosocial harm, sexual harassment and gender‑based violence – the need for high‑qual - ity, defensible investigations will only increase, and employers should ensure that they have appropriate investigative capability and support.
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