The Attorney-General's department has admitted that the Commonwealth can seek confidentiality clauses when settling workplace claims of sexual assault or harassment if in its interest to do so, despite a government policy of transparency.
Greens senator Larissa Waters asked about the policy at estimates on Tuesday evening, after The Canberra Times revealed that the Commonwealth is still seeking gag clauses in such cases.
An official responded that while the "general policy" in the Legal Services directions that apply to Commonwealth lawyers said transparency was "the default approach", confidentiality could be sought "where that is necessary to protect the Commonwealth's interests".
The departmental official said the government's approach "is generally not to seek confidentiality in relation to settlements of such matters ... consistent with the guidelines" of the AHRC's 2021 Respect@Work report.
Gordon Legal head of industrial law Marcus Clayton, who runs employment law cases for victims of bullying, sexual assault and harassment in the public and private sectors, said it was "really outrageous" that the Legal Services directions allowed the Commonwealth to seek confidentiality clauses when in its interest to do so.
Mr Clayton said it was misleading to speak about a "default approach" of transparency if secrecy could be sought to protect the Commonwealth's interests, when most lawyers representing an employer would argue "that it is always in the employer's interest that there be a confidentiality clause, because of damage to your reputation, because of conceding that the employer has done the wrong thing."
"The guidelines put out by the independent Australian Human Rights Commission says that these clauses should not be routinely demanded," he told this masthead.
In late 2022, the Australian Human Rights Commission published Guidelines on the Use of Confidentiality Clauses in the Resolution of Workplace Sexual Harassment Complaints, noting testimony that confidentiality clauses in workplace sexual harassment settlement agreements "can be used to intimidate and silence victims, conceal the behaviour of alleged harassers, and inhibit oversight by leaders (including managers and executives) and boards who, in some cases, may not be aware that complaints have been raised if they were settled confidentially."
Mr Clayton said an "enlightened" employer would not seek to keep workplace sexual assault or harassment a secret and "sweep it under the carpet".
"But there's still a lot of dinosaurs out there, and one of them is the Commonwealth," Mr Clayton said.
Plaintiff lawyers, including Mr Clayton, say confidentiality is still being sought.
As well as the AHRC's Respect@Work report, the issue of the handling of sexual harassment and assault was also covered in Stephanie Foster's review of the responses to serious parliamentary workplace incidents in 2021 and former sex discrimination commissioner Kate Jenkins' Set the Standard Report in 2021.
Michael Johnson, Assistant Secretary, Office of Legal Services coordination, said the Attorney-General or his delegate had to approve settlements in matters flagged as "significant issues".
"They can't be settled except with the approval of the Attorney-General," Mr Johnson told the committee.
"We have visibility of settlement of those matters only."
Of such matters raised with the Attorney-General since June 1, 2022, he said, settlement terms had been approved in six workplace sexual harassment or assault claims.
Of those, "two included a condition that the Commonwealth was not to seek confidentiality, but could agree to it if it was requested by the claimant".
In three matters, settlement terms were approved that included the Commonwealth seeking confidentiality of the sum of the settlement only, not the subject matter of the claim.
A sixth matter was yet to settle, he said, with the Commonwealth entity in that matter allowed to "make its own assessment".
A spokesperson for Mr Dreyfus said in a statement: "As officials from the Attorney-General's Department told Senate estimates on Tuesday, the Albanese government's policy in relation to workplace, sexual assault or sexual harassment claims was to 'only to agree to confidentiality where this has been requested by the claimant', and that 'It is our policy, and it's the Attorney-General's policy, that we do comply with those guidelines'."
