Trade Secrets 2025

AUSTRALIA Law and Practice Contributed by: John Lee, Michael Williams, Siabon Seet and Vanessa Farago-Diener, Gilbert + Tobin

an issue to be available to a party in an appeal, it must have been ventilated at trial. While applications for leave to appeal can be determined on the papers alone, appeals them - selves are usually conducted via a court hearing. 9. Criminal Offences 9.1 Prosecution Process, Penalties and Defences Trade secret claims are pursued as civil claims in either the Federal Court or the Supreme Court of the relevant state or territory. The exception is where the misappropriation of trade secrets is by a director or other officer or employee of a corporation who has used their position to obtain the information, and the use of the trade secrets has a dishonesty element, such that there has been a likely breach of Section 184 of the Corporations Act, or where the mis - appropriation of trade secrets involves a foreign government principal under the Code. Criminal Prosecution Under Section 92A.1 of the Code Pursuant to Section 92A.1 of the Code, a person commits an offence if: • the person dishonestly receives, obtains, takes, copies or duplicates, sells, buys or discloses information; • the information is not generally known in trade or business, is commercially valuable, and the owner of the information has made reasonable efforts to protect it; • the conduct (theft) is engaged in on behalf of, or in collaboration with, a foreign government principal or someone acting on their behalf; or

• the conduct is directed, funded, or supervised by a foreign government principal or person acting on their behalf. To initiate a criminal prosecution in the event of trade secret theft involving a foreign government principal, the victim of the offence would contact the Australian Federal Police (AFP). An accused person cannot be tried for commit - ting this offence without the written consent of the Commonwealth Attorney-General. The maxi - mum penalty for committing the offence is 15 years’ imprisonment. 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 another 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 gain - ing 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 someone else directly or indirectly gain - ing an advantage or causing detriment to the corporation.

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