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Australian Government Solicitor

 

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Legal Briefing

Number 59

18 June 2001

The Electronic Transactions Act 1999

In 1999 the Commonwealth Parliament enacted the Electronic Transactions Act 1999 (the ETA). This short Act (it comprises only 16 sections and a Schedule) is intended to provide a 'light-handed regulatory framework for the online environment which supports and encourages business and consumer confidence in the use of electronic commerce'.1

The primary objective of the ETA is to remove impediments that might prevent a person from using electronic communication to satisfy obligations under Commonwealth law. To this end, it enacts a general rule which provides that for the purposes of a law of the Commonwealth a transaction is not invalid because it takes place wholly or partly by means of one or more electronic communications (section 8).2

The ETA enacts four specific rules (which displace the general rule) which deal with how a requirement 'under a law of the Commonwealth' may be met by means of electronic communications. These specific rules cover requirements to:

  • give information in writing
  • provide a signature
  • produce a document
  • record or retain information in writing.

The ETA also contains a number of rules which establish the time and place of dispatch or receipt of electronic communications, and the attribution of electronic communications - matters which may be crucial for determining the legal consequences of a communication (sections 14 and 15).

The most important consequence of the ETA for Commonwealth bodies is that persons will be able to conduct most transactions with Commonwealth bodies (for example, making an application or a request, lodging a return or a certificate, giving information) by means of electronic communications. Commonwealth bodies will generally be obliged to accept these electronic communications.

Until 1 July 2001, this obligation will only apply to transactions under laws specifically identified in regulations made under the ETA. However, as from 1 July 2001, the ETA will apply generally to all transactions under all laws of the Commonwealth, unless the relevant law or transaction is specifically exempted in the regulations.

This briefing notes some of the issues which arise in applying the ETA to Commonwealth bodies.

What is an Electronic Communication?

The ETA does not require that any particular form of electronic communication be used, but is drafted in terms which will permit the development of new technologies. The definition of electronic communication in section 5 of the ETA refers to communications in the form of data, text or images 'by means of guided and/or unguided electromagnetic energy' or communications in the form of speech by the same means 'where the speech is processed at its destination by an automated voice recognition system'. E-mail, communication over the Internet (for example, entering information on a form on a web site and submitting that form) and facsimile messages are all forms of 'electronic communication' for the purposes of the ETA; conversations between two persons over the telephone are not.

What is a Law of the Commonwealth?

From 1 July 2001, the ETA will apply to all 'laws of the Commonwealth'. The ETA does not define what will constitute a law of the Commonwealth from that date. Acts of Parliament and regulations made under an Act are clearly 'laws of the Commonwealth'. Additionally, an instrument or other document made under an Act may be a 'law of the Commonwealth' if, in its operation together with the Act, it constitutes a rule which must be complied with and which creates rights, obligations or liabilities. For example, guidelines made by a Minister under a provision in an Act could be, depending on their specific nature, a 'law of the Commonwealth'.

On the other hand, the common law is not a 'law of the Commonwealth' for the purposes of the ETA. If the common law imposes requirements (for example, signature requirements) in respect of a certain kind of transaction (for example, agreements under deed), then the ETA will not apply to those requirements.

However, it is important to note that most states and territories have enacted mirror legislation that will apply in respect of the laws of their respective jurisdictions, including the common law.3 The relevant state or territory Act is likely to apply to transactions which take place in accordance with the common law.

In most cases, an agreement made pursuant to the provisions of a 'law of the Commonwealth' will not itself be a 'law of the Commonwealth' for the purposes of the ETA. The ETA will not apply to the requirements or permissions (for example, the giving of a signed notice in writing) under the agreement.

What is a Commonwealth Entity?

The ETA imposes particular requirements (discussed briefly below) on 'Commonwealth entities' and 'persons acting on behalf of a Commonwealth entity'. It is therefore important to understand what is meant by these terms.

Section 5 of the ETA defines 'Commonwealth entity' to mean:

  • a Minister
  • an officer or employee of the Commonwealth
  • a person who holds or performs the duties of an office under a law of the Commonwealth
  • an authority of the Commonwealth, or
  • an employee of an authority of the Commonwealth.

Significantly, Departments of State and of Parliament are not 'Commonwealth entities', although officers and employees within those Departments would fall within the definition.

Other points to note in relation to the definition of Commonwealth entity are:

  • A Commonwealth Act may establish an 'office' even if there is no express mention of an office being created. If the Act provides for an appointment, the term of that appointment, agreed remuneration, etc, then the traditional indicators of an 'office' will be present, and the person appointed will be performing the 'duties of an office under a law of the Commonwealth' and thus be a 'Commonwealth entity' for the purposes of the ETA.
  • There are a number of cases which have considered the meaning of 'authority', 'public authority', 'Commonwealth authority', and similar expressions.4 Ultimately, the question of whether a particular body is an authority will be a question of fact and degree dependent on all the circumstances of the case.
  • The ETA does not define when someone will be 'a person acting on behalf of a Commonwealth entity'. However, we think that the expression is to be interpreted as referring to a person who performs some function (for example, receiving information) in place of, and by the authority of, a Commonwealth entity.

Potentially, this extends the operation of the ETA to many situations in which a contractor for a Commonwealth entity performs functions which involve the receipt of information from persons who wish to transact with that entity.

Whether or not a contractor will be 'acting on behalf of a Commonwealth entity' will need to be determined on a case by case basis.

Writing, Signature, Production and Retention

Sections 9-12 of the ETA are in similar terms: if under a law of the Commonwealth a person is required or permitted to give information in writing, required to sign, or required to produce or retain a document, that requirement can be satisfied by an electronic communication, if certain conditions are met.

Where a person is required, for example, to provide information to a Commonwealth entity, or a person acting on behalf of a Commonwealth entity, the provision of that information by means of an electronic communication will be sufficient to satisfy that requirement. In other words, the Commonwealth entity, or the person acting on behalf of the Commonwealth entity, is effectively obliged to accept the provision of the information by means of electronic communication.

However, the Commonwealth entity may require the person giving the information to do so by means of a particular kind of electronic communication (which is in accordance with particular information technology requirements), and may also require that a particular action be taken to verify the receipt of the information.

This means that a Commonwealth entity may specify what information technology requirements must be satisfied by those wanting to communicate with the entity by electronic means. For example, the Commonwealth entity could specify that it will only receive electronic communications in the form of facsimile messages, or by submission of a particular form found on the entity's web site.

Commonwealth bodies should be aware of some key issues in regard to the specification of information technology requirements:

  • An entity cannot specify that no electronic communications will be received, or that no electronic signatures will be considered. If the entity wishes to be excluded from the operation of sections 9-12 of the ETA, it must seek an exemption. (Section 13 of the ETA permits the making of exemptions under regulations.)
  • An entity cannot specify criteria other than information technology requirements. For example, an entity cannot specify that only people living in remote areas are permitted to submit a given form by fax, while people living in urban centres must submit the information by using the electronic form on the entity's web site.
  • Although it is not specified as a requirement in the ETA, an entity will need to give adequate notice of the technology requirements it has set to people who may want to communicate with it by electronic means. What will constitute adequate notice will need to be determined on a case by case basis, and will depend in part on the information technology requirements that are set.

If a person receiving information, signatures or documents is neither a Commonwealth entity nor acting on behalf of such an entity, the impact of the rules in sections 9-12 is limited by the need for that person to consent to the use of electronic communications by the person providing the information, signatures or documents. This means, for example, that if a Commonwealth body is required to give information to members of the public and it wishes to do so by means of electronic communications, it will need to obtain their consent.

Section 5 of the ETA defines 'consent' to include consent that can reasonably be inferred from the conduct of the person concerned. Whether or not consent can be reasonably inferred will generally depend on the circumstances of the case and on the relationship between the Commonwealth entity and that person.

Notes

1 Second Reading Speech, House of Representatives, 30/6/99.

2 The general rule does not validate a transaction that takes place by means of electronic communications if that transaction would otherwise be invalid.

3 As of 7 June 2001, the Australian Capital Territory, New South Wales, the Northern Territory, Queensland, South Australia, Tasmania and Victoria have enacted an Electronic Transactions Act. It is anticipated that the other states will also enact mirror legislation in due course.

4 A useful summary of the propositions arising from the cases in this area can be found in the judgment of Hill J in Federal Commissioner of Taxation v Bank of Western Australia (1995) 133 ALR 599.

For further information please contact Kathryn Graham, Office of General Counsel on tel (02) 6253 7035 or e-mail kathryn.graham@ags.gov.au or any of the following lawyers:

Canberra

Leo Hardiman

(02) 6253 7074

 

Lisa De Ferrari

(02) 6253 7078

Sydney

Megan Pitt

(02) 9581 7474

Melbourne

Martin Bruckard

(03) 9242 1386

Brisbane

David Durack

(07) 3360 5700

Perth

Graeme Windsor

(08) 9268 1102

Adelaide

Sarah Court

(08) 8205 4231

Darwin

Rick Andruszko

(08) 8943 1400

Hobart

Peter Bowen

(03) 6220 5474

 

For other Government Online Legal Issues contact Anne Caine on tel (02) 6253 7145 or
e-mail anne.caine@ags.gov.au.

For policy matters relating to the Electronic Transactions Act contact Colin Minihan, Attorney-General's Department on tel (02) 6250 5423 or e-mail colin.minihan@ag.gov.au.

For enquiries regarding supply of issues of the Briefing, change of address details etc, Tel: (02) 6253 7052 or Fax: (02) 6253 7313 or e-mail: ags@ags.gov.au. A copy of this article is published in the 'For Clients' section of our web site: http://ags.gov.au.

For enquiries regarding supply of issues of the Briefing, change of address details etc,
Tel: (02) 6253 7052 or Fax: (02) 6253 7313 or e-mail: publications@ags.gov.au.

ISSN 1448-4803 (Print)
ISSN 2204-6283 (Online)

The material in this briefing is provided for general information only and should not be relied upon for the purpose of a particular matter. Please contact AGS before any action or decision is taken on the basis of any of the material in this briefing.

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