NDA drafting checklist (AU)
Most NDA disputes turn on two issues — whether information was properly captured as "confidential information" and whether the use was within the permitted purpose. This checklist covers the 12 drafting areas that most commonly determine outcomes.
This is a 12-step checklist for drafting a non-disclosure agreement under Australian law. It covers the scope of confidential information, permitted purpose, duration, carve-outs, return/destruction obligations, and remedies. Use it for one-way, mutual, and multi-party NDAs.
The checklist
Identify parties and any affiliates
Use exact legal names, ABN/ACN, and define whether "Group" or "Affiliates" are permitted recipients. Multi-party NDAs should specify who owes duties to whom.
Define the permitted purpose precisely
Draft the permitted purpose narrowly (for example "to evaluate a possible acquisition of the Target"). Loose definitions undermine enforcement.
Define confidential information and marking
Decide whether information is protected by default or only when marked confidential. Include oral disclosures (often with a 30-day confirmation).
Include the standard carve-outs
Carve out information already known, in the public domain, independently developed, or lawfully received from a third party.
Address compulsory disclosure
Permit disclosure required by law or regulator, with prior notice where legally possible. Address ASX continuous disclosure for listed parties.
Set the duration and survival
Set the confidentiality period (commonly 3–5 years) with perpetual protection for trade secrets. Deal with early termination.
Return and destruction obligations
Require return or destruction on request, with an exception for electronic back-up copies subject to ongoing confidentiality.
Personnel and onward disclosure
Limit disclosure to personnel with a need to know, flow down equivalent obligations, and make the recipient liable for breach by its personnel.
IP, no-licence, and feedback
Confirm no licence of IP is granted. Address any feedback licences (for product evaluation NDAs).
Non-solicit and non-circumvent
Consider whether non-solicit of employees and non-circumvent obligations are required. Ensure they are reasonable in scope and duration.
Remedies, injunctive relief, and liquidated damages
Acknowledge damages may be inadequate and that injunctive relief is available. Avoid penalty clauses — liquidated damages must be a genuine pre-estimate.
Governing law, jurisdiction, and execution
Specify Australian governing law and jurisdiction. Confirm execution formalities for the relevant entity type (electronic execution, s 127).
When this checklist applies
Use this checklist when drafting or reviewing any NDA — whether one-way (disclosing party protecting), mutual (both parties exchanging), or multi-party (M&A, joint venture, RFP). Walk through each item before issuing.
Common pitfalls
- Permitted purpose drafted too broadly — defeats enforcement
- Missing marking and oral disclosure confirmation mechanism
- No compulsory disclosure carve-out — exposes the recipient to breach where disclosure is mandatory
- Unreasonably long duration for operational information
- Liquidated damages drafted as a penalty — unenforceable
Run this checklist on a real matter
Quillio drafts one-way and mutual NDAs from a short brief, benchmarks clauses against market norms, and flags any unusual terms. See /practice-areas/commercial-lawyers or start a free trial.
This checklist covers standard commercial NDAs. High-value M&A, technology licensing, or government-related NDAs may require additional drafting steps.
Use this checklist on your matter.
Quillio can run this checklist on a specific NSW conveyancing matter — confirm each item, calculate adjustments, and generate the supporting documents. The free trial requires no credit card.
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