Commercial · Australia
Non-Disclosure Agreement Template (Australia)
A confidentiality agreement is only as good as its carve-outs — an NDA with no exceptions and no end date is the kind a court treats sceptically. Covers mutual and one-way disclosure for Australian businesses.
What this document does
Protecting information you have to share
An NDA lets you disclose something valuable for a defined purpose without losing control of it. The work is in defining the information tightly enough to be enforceable and broadly enough to cover what you actually disclose.
What’s included
Clauses in this template
- Definition of confidential information, drawn to the actual disclosure
- Permitted purpose and permitted recipients
- Standard carve-outs — already known, public, independently developed, compelled by law
- Term, return and destruction obligations
- Remedies, including injunctive relief
The law that applies
Contract and equity together
Confidentiality in Australia is protected both by contract and by the equitable duty of confidence. A well-drafted NDA works with that duty rather than assuming the contract is the only source of protection.
A carve-out for disclosure required by law or by a regulator is standard. Its absence is a drafting error, not a commercial advantage — a court will not enforce a promise to break the law.
What goes wrong
Pitfalls we see in practice
A perpetual term with no carve-outs
An obligation of confidence over everything, forever, with no exceptions, invites a court to treat the clause as unreasonable rather than to enforce it. Carve-outs are not concessions extracted by the other side — they are what makes the rest of the clause work, by confining the obligation to information that genuinely warrants protection.
No exclusion for information already known or independently developed
Without these, a recipient who already held the information, or who later develops the same thing separately, is technically in breach for using their own knowledge. A sophisticated counterparty will not sign it; an unsophisticated one will, and you have created a dispute neither of you wanted.
Using an NDA where you need an intellectual property assignment
Confidentiality restricts disclosure. It does not transfer ownership. Where a developer, designer or consultant creates something for you under an NDA alone, they generally still own what they made — the document you needed was an assignment. This gap typically surfaces years later, in due diligence, at the worst possible moment.
No way of proving what was disclosed
Enforcement rarely fails on the law; it fails on evidence. Where nothing records what was handed over and when, the party seeking to enforce cannot establish what the recipient actually received. A schedule of disclosed materials, or simply a habit of marking and logging what is sent, is worth more in practice than the remedies clause.
Questions
Frequently asked
Should my NDA be mutual or one-way?
Mutual where both sides will disclose something worth protecting, which in practice is most commercial discussions. A one-way NDA is appropriate where the information flows in a single direction — for example, disclosing your process to a prospective supplier who discloses nothing back.
How long should confidentiality obligations last?
Long enough to protect the information, and no longer. A fixed term of three to five years is common for commercial information; genuine trade secrets can justify an indefinite obligation. A perpetual term applied to everything tends to weaken the whole clause.
Is an NDA actually enforceable in Australia?
Yes, where it is drawn with a defined purpose, identifiable information and sensible carve-outs. The practical difficulty is rarely enforceability — it is proving what was disclosed and what loss followed, which is why the definition and record-keeping matter more than the remedies clause.
Legally reviewed by [REVIEWER NAME], practising Australian solicitor — [DATE]. [DRAFT: confirm reviewer and date before publishing.]