AUSTRALIA Law and Practice Contributed by: John Lee, Siabon Seet, Vanessa Farago-Diener and Irini Lantis, Gilbert + Tobin
Defences There are no specified defences available for this kind of offence. Defences generally available for offences in the Code (see 2.3 Joint Ventures ) include: • duress, such as where the accused has been threatened into committing the offence; • emergency; and • where the offence is justified or excused by anoth - er law of the Commonwealth. Criminal Prosecution Under Section 184 of the Corporations Act Pursuant to Section 184 (3) of the Corporations Act, a person commits an offence if: • the person used the information dishonestly with the intention of directly or indirectly gaining an advantage for themselves, or someone else, or causing detriment to the corporation; or • the person used the information recklessly as to whether the use may result in themselves or some- one else directly or indirectly gaining an advantage or causing detriment to the corporation. Defences Defences or arguments available under the Corpo - rations Act include, but are not limited to, that the defendant: • was not intentionally or recklessly dishonest; • acted in the best interests of the company; • acted for a proper purpose; • did not gain anything for itself or someone else; and • did not cause detriment to the company. Mechanisms Available to Trade Secret Owners to Co-Ordinate With Law Enforcement Authorities In Australia, trade secret owners have several mecha - nisms available to co-ordinate with law enforcement authorities when investigating trade secret misap - propriation or economic espionage offences. These mechanisms ensure that the trade secret owner can effectively protect their intellectual property while aiding law enforcement in their investigation. These include:
• reporting the incident; • providing evidence including documentation and, if warranted, expert evidence; • maintaining regular communications with law enforcement; • seeking protective orders from the court; and • if the misappropriation involves digital theft, co- ordinate with the AFP’s cybercrime units that can trace electronic evidence and identify cybercrimi - nals.
10. ADR 10.1 Dispute Resolution Mechanisms Mediation
Mediation is by far the most common and accessible ADR process used by the courts. It involves an inde - pendent third-party mediator (often a registrar or pri - vate practitioner) who facilitates discussions between disputing parties. The goal is not to decide who is right or wrong but to help parties reach a mutually accept - able resolution. Mediations may be court-ordered or voluntarily initi - ated by the parties. In many cases, the judge will refer the matter to mediation early in the proceedings if there is a reasonable chance of settlement. This refer - ral can be made with or without the parties’ consent. A registrar usually conducts these mediations at no cost to the parties, making it an economical option. The process is confidential, informal, and tailored to the nature of the dispute. Mediators do not impose decisions; instead, they guide communication, clar - ify issues, and encourage compromise. Settlement agreements reached during mediation can be made legally binding and enforceable by the Court. Arbitration While less common in court proceedings compared to mediation, arbitration remains a recognised ADR mechanism. Arbitration involves the appointment of a neutral third-party arbitrator (or a panel) who hears both sides and delivers a binding decision.
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