Sydney blazes trail with ‘NDA’ motion

It is essential to change the culture in which non-disclosure agreements (NDAs) are misused, if churches and church organisations are to safeguard against perpetrators of abuse, an NDA whistleblower has said.

The warning follows a resolution passed by the Sydney Synod in Australia discouraging the use of NDAs to silence victims. It is understood to be the first denomination or church network to take a public position on the use of NDAs in their churches.

The resolution ‘lamented and condemned NDAs’ where their use has been to cover up sin, silence victims, or avoid accountability’, and called to repentance anyone who has knowingly and intentionally used NDAs for such purposes.

The resolution also urges parishes within the Sydney Diocese to consider whether they have previously used NDAs that contravene the principles and recommendations of its report on NDAs; to apologise to any individuals effected; and release them from the NDA.

There has been increasing awareness that NDAs have been used to silence individuals who have raised allegations of abuse against an organisation, including within churches and Christian organisations (the terms may form part of a wider settlement agreement).

Ben Nicholson was recently released from an almost lifetime NDA by Tearfund and set up #NDAFree to urge Christian organisations and churches avoid NDAs.

Following the resolution passed by the Sydney Synod, he said: ‘We are delighted … The first step towards eradicating the misuse of NDAs in the church is to set out clearly when you will and will not use them and we applaud the Sydney Anglicans for leading in this area.’

Could other denominations and networks follow suit? Nicholson said: ‘With growing public understanding and interest in the way that NDAs are misused to conceal misconduct, including abuse, asking church organisations to be transparent about their policy towards NDAs seems to us to be a very reasonable ask. It is difficult to think of a good reason for a church organisation to not be willing to be clear on this issue.’

However, David Robertson, minister of Scots Kirk Presbyterian Church, Newcastle NSW, is cautious at the move. ‘It’s better than nothing,’ he concedes, ‘but still leaves the door open for abuse. I cannot understand why NDAs should ever be used in the Christian Church … especially when money is involved.’

He believes all denominations should refute the use of all NDAs. Robertson commented: ‘It may bring a small crumb of comfort if it makes people more accountable … but is small comfort…’

So what might this mean for victims of abuse? Nicholson said that, while announcing a public position on NDAs is a crucial first step, ‘it is critical that it is complemented by ongoing efforts to change the culture of concealment, intimidation and putting organisational reputation before victims of abuse’.

This includes, for instance, ensuring policies are widely known about, enforced and adopted by individual churches and church organisations; releasing people previously gagged by NDAs; and retrospectively addressing the issues concealed by NDAs.

He added: ‘Leaning into changing the culture in which the misuse of NDAs has taken hold is essential.’

A spokesperson for the English Presbyterian Church said it has no official stance on NDAs. The Church of England did not respond to a request for comment by the time en went to press. While the Archbishop of Canterbury Justin Welby has previously said NDAs should not be used in the Cof E, it is understood that they have been and continue to be used where abuse is alleged.

Phil Topham is executive director at the FIEC. FIEC-affiliated churches are independent and their decisions around issues such as NDAs are, he said, decisions for them to make.

He added: ‘We lament all situations where NDAs have been used to silence the victims of abusive behaviour. That should never happen in Christian organisations and it doesn’t honour the Lord Jesus – we don’t believe there is ever a justification for NDAs to be used in this manner.’

However, while the FIEC recognises ‘that there are limited circumstances where such an agreement can protect both parties, … this should never be in the guise of a cover-up’. Topham said the FIEC has never used NDAs.