Addressing the Criminal Liability for Trade Secrets Misuse under the Australian Law: Is the Current Legal Framework Adequate to Protect the Interests of Trade Secrets Owners?

The emergence and dominance of knowledge-based economies have heightened the importance of trade secrets as a “currency” for attaining competitiveness in the market and driving innovation. Yet espousing policies to govern trade secret protection, especially in the criminal law sphere, was not something on which legislative and regulatory policymakers traditionally focused. Recent legislative incentives at a global level have caused the tide to shift and, after decades of being somewhat neglected, the questions pertaining to criminal liability for trade secret misuse are finally gaining attention. The Australian response to recent initiatives ensued in 2018 with the enactment of the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (Cth) (“EFI Act”) which introduced the first statutory provisions dedicated to criminalisation of state-sponsored theft (economic espionage) of trade secrets. This Act, however, does not provide a comprehensive legal framework to address criminal liability for trade secret misuse, as it leaves outside the scope of its regulation the criminalisation of the theft of trade secrets by individuals for their own benefit. This paper analyses the adequacy of the Australian legal regime concerning criminal liability for trade secret misuse. The analysis is informed by a comparison of the legal provisions of the Australian trade secret regime with that adopted in the United States (“U.S.”) which currently offers a comprehensive framework of protection and criminalises economic espionage as well as the theft of trade secrets. This comparative analysis serves to determine: first, whether the “one way” avenue of statutory protection under Australian law suffices to protect the interests of the owners of trade secrets; and, second, whether a potential reform of the regime designed to include dedicated statutory provisions to criminalise the theft of trade secrets, as is the case in the U.S., could potentially afford a more adequate protection of the interests of trade secret owners.