Should theft of trade secrets be regarded as a civil or a criminal matter? This is a question of growing significance since the importance of Australia remaining a competitive player in the global economy requires that Australian enterprise take every advantage of business opportunities, at home and abroad. However, Australian companies should be mindful that competitors, and nations which might be hosts to Australian investment, may have a strong interest in Australian trade secrets and other economic intelligence.
Although its incidence and prevalence are unknowable, industrial espionage by governments and private sector institutions is a fact of contemporary commercial life. Recent developments in the technology of intercepting communications make such activities easier to undertake and more difficult to detect than in the past.
This essay discusses whether existing Australian legal safeguards against industrial espionage are adequate, or whether the greater use of criminal sanctions, such as those recently introduced in the United States, might be appropriate. It balances a number of considerations, including deterrence, compensation and incentives to innovation, and cautions against uncritical adoption of overseas innovations.