AUSTRALIA Law and Practice Contributed by: John Lee, Michael Williams, Siabon Seet and Vanessa Farago-Diener, Gilbert + Tobin
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 various 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 infor - mation because they are, or have been, a direc - tor 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 indi - vidual’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 principal Australian legislation governing the protection of personal information about indi - viduals including the collection, use, storage and disclosure of personal information by enti - ties in the public and private sectors. The Privacy Commissioner is required to have regard to the need to prevent the unreasonable disclosure 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 informa - tion held by the government. Such documents and information often include information about private companies provided, eg, in response to a tender or under a contract. The FOI Act includes
an exemption for documents that disclose trade secrets or commercially valuable information. Contracts Trade secrets can also be protected express - ly through contractual terms that specifically establish that the information being disclosed is to be treated as confidential between the par - ties as well as implied in a contract, such as an employment agreement. Equitable Action In addition to the protections afforded by con - tract and statute, obligations of confidentiality also arise in Australia in equity, where: • information was received with the under - standing that it would be treated confiden - tially; or • the recipient ought to have realised in all the circumstances that the information was to be Australia is a party to major international intel - lectual property (IP) treaties, including the WTO Agreement on Trade-Related Aspects of Intel - lectual Property Rights 1994 (TRIPS Agreement). The TRIPS Agreement sets out general princi - ples and contains minimum standards on IP and enforcement procedures to which Australia adheres. Article 39(2) requires member states to accord protection against unauthorised use of “undisclosed information” in a way that is “contrary to honest commercial practices” , and defines “undisclosed information” for this pur - pose as: • secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the treated confidentially. International Treaties
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