AUSTRALIA Trends and Developments Contributed by: John Lee, Siabon Seet, Vanessa Farago-Diener and Irini Lantis, Gilbert + Tobin
Relative Secrecy in a Digital Age: Trade Secret Protection in Australia Amid AI and Workforce Change Taking proactive steps to preserve a business’ trade secrets has become increasingly important in Aus - tralia. Factors such as heightened employee mobility, the shift to remote and hybrid working arrangements, and the growing adoption of artificial intelligence (AI) in the workplace, all increase the risk of inadvertent or unauthorised disclosures. Unlike other jurisdictions, Australia does not have dedicated legislation, nor a discrete body of law, relating specifically to the protection of trade secrets. Indeed, there is no clear definition of “trade secret” in Australia; rather, a “trade secret” is a subtype of con - fidential information having commercial value, and it may be protected as such through an equitable action for breach of confidence. In appropriate circumstanc - es, an action for breach of non-disclosure or non-use provisions in an employment or other agreement, or breach of applicable statutory or other duties, may also arise. Against this backdrop, recent developments in trade secret protection in Australia derive primarily from emerging case law, including the ways in which courts are assessing confidentiality. Equally impor - tant is an examination of how businesses can manage their valuable information to ensure confidentiality is established and maintained, taking into account guid - ing principles from recent court decisions as well as challenges arising from evolving digital technologies and AI platforms. In December 2025, the Australian government released Australia’s first National AI Plan (“Plan”), which focuses on supporting Australian AI capability and scaling AI adoption, including lifting workforce skills. Implementation of the Plan is likely to see even greater adoption of AI-based tools across Austral - ian workplaces, bringing benefits to business but also risks to trade secret and confidential information protection. Businesses will need to focus even more keenly on how best to balance the benefits and risks of AI adoption.
The Australian government also appears to be pro - ceeding with its proposal, announced in March 2025, to ban non-compete clauses in employment contracts for those earning less than the high-income thresh - old. Given that most trade secret litigation in Australia arises in the context of employee exits, this proposal – expected to become law in 2027 – may require busi - nesses to strengthen protection of their confidential information through other means. The authors discuss some of the recent case law and other developments in Australia below. The need to identify the “secret” In Australia, a person seeking to prevent the unauthor - ised use or disclosure of trade secrets may be able to rely on one or more of the following causes of action: • breach of contract; • an equitable action for breach of confidence; and/ or • contravention of the Corporations Act 2001 (Cth) (where the applicant is a company incorporated under the Corporations Act and the respondent is a current or former director, officer or employee of that company). Where circumstances permit, these causes of action are commonly pleaded together, along with other claims such as copyright, misleading or deceptive conduct, and/or breach of fiduciary duty. Copyright is an important cause of action in particular when tan - gible materials have been taken, which is often the case. The equitable duty of confidence assumes par - ticular importance where there is no contract between applicant and respondent. The elements that must be established in order to succeed in an equitable action for breach of confidence are well-settled. The information must: • be identified with specificity; • have the necessary quality of confidence; • have been received in circumstances importing an obligation of confidence; and • have had actual or threatened misuse without consent.
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