AUSTRALIA Law and Practice Contributed by: John Lee, Siabon Seet, Vanessa Farago-Diener and Irini Lantis, Gilbert + Tobin
Gilbert + Tobin Level 35, Tower Two International Towers 200 Barangaroo Avenue Sydney, NSW 2000 Australia Level 22, 101 Collins Street Melbourne, VIC 3000 Australia Tel: +61 292 634 000 Fax: +61 292 634 111 Email: info@gtlaw.com.au Web: www.gtlaw.com.au
sure of confidential commercial information in a report following an investigation of an act or practice. The Freedom of Information Act 1982 (Cth) (FOI Act) allows access to documents and information held by the government. Such documents and information often include information about private companies provided, eg, in response to a tender or under a con - tract. The FOI Act includes an exemption for docu - ments that disclose trade secrets or commercially valuable information. Contracts Trade secrets can also be protected expressly through contractual terms that specifically establish that the information being disclosed is to be treated as con - fidential between the parties as well as implied in a contract, such as an employment agreement. Equitable Action In addition to the protections afforded by contract and statute, obligations of confidentiality also arise in Aus - tralia in equity, where: • information was received with the understanding that it would be treated confidentially; or • the recipient ought to have realised in all the cir - cumstances that the information was to be treated confidentially.
1. Legal Framework 1.1 Sources of Legal Protection for Trade Secrets Unlike other jurisdictions such as the UK, there is no relevant statutory or regulatory regime governing the protection of trade secrets in Australia. Rather, trade secrets are protected in Australia through vari - ous statutes which protect against the disclosure of confidential information by imposing an obligation of confidence, as well as in contracts and in equity. Statutory Sources The Corporations Act 2001 (Cth) (Corporations Act) provides that a person who obtains informa - tion because they are, or have been, a director or other officer or employee of a corporation must not improperly use the information to gain an advantage for themselves or someone else or cause detriment to the corporation. An individual’s obligations under the Corporations Act continue after that individual has stopped being an officer or employee. The Privacy Act 1988 (Cth) (Privacy Act) is the princi - pal Australian legislation governing the protection of personal information about individuals including the collection, use, storage and disclosure of personal information by entities in the public and private sec - tors. The Privacy Commissioner is required to have regard to the need to prevent the unreasonable disclo -
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