An Act to facilitate electronic transactions, and for other
purposes
Part 1—Introduction
1
Short title [see
Note 1]
This Act may be cited as the Electronic
Transactions Act 1999.
2
Commencement [see
Note 1]
(1) Subject to subsection (2), this Act
commences on a day to be fixed by Proclamation.
(2) If this Act does not commence under subsection (1)
within the period of 6 months beginning on the day on which this Act receives
the Royal Assent, it commences on the first day after the end of that period.
3
Object
The object of this Act is to provide a
regulatory framework that:
(a) recognises the importance of the
information economy to the future economic and social prosperity of Australia; and
(b) facilitates the use of electronic
transactions; and
(c) promotes business and community
confidence in the use of electronic transactions; and
(d) enables business and the community
to use electronic communications in their dealings with government.
4
Simplified outline
The following is a simplified outline of
this Act:
• For
the purposes of a law of the Commonwealth, a transaction is not invalid because
it took place by means of one or more electronic communications.
• The
following requirements imposed under a law of the Commonwealth can be met in
electronic form:
(a) a
requirement to give information in writing;
(b) a requirement
to provide a signature;
(c) a requirement
to produce a document;
(d) a requirement
to record information;
(e) a
requirement to retain a document.
• For
the purposes of a law of the Commonwealth, provision is made for determining
the time and place of the dispatch and receipt of an electronic communication.
• The
purported originator of an electronic communication is bound by it for the
purposes of a law of the Commonwealth only if the communication was sent by the
purported originator or with the authority of the purported originator.
5
Definitions
(1) In this Act, unless the contrary
intention appears:
Commonwealth entity means:
(a) a Minister; or
(b) an officer or employee of the
Commonwealth; or
(c) a person who holds or performs the
duties of an office under a law of the Commonwealth; or
(d) an authority of the Commonwealth;
or
(e) an employee of an authority of the
Commonwealth.
consent includes consent that can reasonably
be inferred from the conduct of the person concerned.
data includes the whole or part of a computer
program within the meaning of the Copyright Act 1968.
data storage device means any article or
material (for example, a disk) from which information is capable of being
reproduced, with or without the aid of any other article or device.
electronic communication means:
(a) a communication of information in
the form of data, text or images by means of guided and/or unguided
electromagnetic energy; or
(b) a communication of information in
the form of speech by means of guided and/or unguided electromagnetic energy,
where the speech is processed at its destination by an automated voice
recognition system.
information means information in the form of
data, text, images or speech.
information system means a system for
generating, sending, receiving, storing or otherwise processing electronic
communications.
information technology requirements includes
software requirements.
non‑profit body means a body that is
not carried on for the purposes of profit or gain to its individual members and
is, by the terms of the body’s constitution, prohibited from making any
distribution, whether in money, property or otherwise, to its members.
place of business, in relation to a
government, an authority of a government or a non‑profit body, means a
place where any operations or activities are carried out by that government,
authority or body.
transaction includes a transaction of a non‑commercial
nature.
(2) Before 1 July 2001, in this Act (other than this section):
law of the Commonwealth means a law of the
Commonwealth specified in the regulations.
6
Crown to be bound
This Act binds the Crown in all its
capacities.
7 External Territories
This Act extends to all the external
Territories.
Part 2—Application of legal requirements to electronic
communications
Division 1—General rule about validity of transactions for the purposes
of laws of the Commonwealth
8
Validity of electronic transactions
(1) For the purposes of a law of the
Commonwealth, a transaction is not invalid because it took place wholly or
partly by means of one or more electronic communications.
(2) The general rule in subsection (1)
does not apply in relation to the validity of a transaction to the extent to
which another, more specific provision of this Part deals with the validity of
the transaction.
Exemptions
(3) The regulations may provide that subsection (1)
does not apply to a specified transaction.
(4) The regulations may provide that subsection (1)
does not apply to a specified law of the Commonwealth.
Division 2—Requirements under laws of the Commonwealth
9
Writing
Requirement to give information in writing
(1) If, under a law of the Commonwealth, a
person is required to give information in writing, that requirement is taken to
have been met if the person gives the information by means of an electronic communication,
where:
(a) in all cases—at the time the
information was given, it was reasonable to expect that the information would
be readily accessible so as to be useable for subsequent reference; and
(b) if the information is required to
be given to a Commonwealth entity, or to a person acting on behalf of a
Commonwealth entity, and the entity requires that the information be given, in
accordance with particular information technology requirements, by means of a
particular kind of electronic communication—the entity’s requirement has been
met; and
(c) if the information is required to
be given to a Commonwealth entity, or to a person acting on behalf of a
Commonwealth entity, and the entity requires that particular action be taken by
way of verifying the receipt of the information—the entity’s requirement has
been met; and
(d) if the information is required to
be given to a person who is neither a Commonwealth entity nor a person acting
on behalf of a Commonwealth entity—the person to whom the information is
required to be given consents to the information being given by way of
electronic communication.
Permission to give information in writing
(2) If, under a law of the Commonwealth, a
person is permitted to give information in writing, the person may give the
information by means of an electronic communication, where:
(a) in all cases—at the time the
information was given, it was reasonable to expect that the information would
be readily accessible so as to be useable for subsequent reference; and
(b) if the information is permitted to
be given to a Commonwealth entity, or to a person acting on behalf of a
Commonwealth entity, and the entity requires that the information be given, in
accordance with particular information technology requirements, by means of a
particular kind of electronic communication—the entity’s requirement has been
met; and
(c) if the information is permitted to
be given to a Commonwealth entity, or to a person acting on behalf of a
Commonwealth entity, and the entity requires that particular action be taken by
way of verifying the receipt of the information—the entity’s requirement has
been met; and
(d) if the information is permitted to
be given to a person who is neither a Commonwealth entity nor a person acting
on behalf of a Commonwealth entity—the person to whom the information is
permitted to be given consents to the information being given by way of
electronic communication.
Certain other laws not affected
(3) This section does not affect the
operation of any other law of the Commonwealth that makes provision for or in
relation to requiring or permitting information to be given, in accordance with
particular information technology requirements:
(a) on a particular kind of data
storage device; or
(b) by means of a particular kind of
electronic communication.
Giving information
(4) This section applies to a requirement or
permission to give information, whether the expression give, send
or serve, or any other expression, is used.
(5) For the purposes of this section, giving
information includes, but is not limited to, the following:
(a) making an application;
(b) making or lodging a claim;
(c) giving, sending or serving a
notification;
(d) lodging a return;
(e) making a request;
(f) making a declaration;
(g) lodging or issuing a certificate;
(h) making, varying or cancelling an
election;
(i) lodging an objection;
(j) giving a statement of reasons.
Note: Section 13 sets out exemptions from this
section.
10
Signature
Requirement for signature
(1) If, under a law of the Commonwealth, the
signature of a person is required, that requirement is taken to have been met
in relation to an electronic communication if:
(a) in all cases—a method is used to
identify the person and to indicate the person’s approval of the information
communicated; and
(b) in all cases—having regard to all
the relevant circumstances at the time the method was used, the method was as
reliable as was appropriate for the purposes for which the information was
communicated; and
(c) if the signature is required to be
given to a Commonwealth entity, or to a person acting on behalf of a
Commonwealth entity, and the entity requires that the method used as mentioned
in paragraph (a) be in accordance with particular information technology
requirements—the entity’s requirement has been met; and
(d) if the signature is required to be
given to a person who is neither a Commonwealth entity nor a person acting on
behalf of a Commonwealth entity—the person to whom the signature is required to
be given consents to that requirement being met by way of the use of the method
mentioned in paragraph (a).
Certain other laws not affected
(2) This section does not affect the
operation of any other law of the Commonwealth that makes provision for or in
relation to requiring:
(a) an electronic communication to
contain an electronic signature (however described); or
(b) an electronic communication to
contain a unique identification in an electronic form; or
(c) a particular method to be used in
relation to an electronic communication to identify the originator of the
communication and to indicate the originator’s approval of the information
communicated.
Note: Section 13 sets out exemptions from this
section.
11
Production of document
Requirement to produce a document
(1) If, under a law of the Commonwealth, a
person is required to produce a document that is in the form of paper, an
article or other material, that requirement is taken to have been met if the
person produces, by means of an electronic communication, an electronic form of
the document, where:
(a) in all cases—having regard to all
the relevant circumstances at the time of the communication, the method of
generating the electronic form of the document provided a reliable means of
assuring the maintenance of the integrity of the information contained in the
document; and
(b) in all cases—at the time the
communication was sent, it was reasonable to expect that the information
contained in the electronic form of the document would be readily accessible so
as to be useable for subsequent reference; and
(c) if the document is required to be
produced to a Commonwealth entity, or to a person acting on behalf of a
Commonwealth entity, and the entity requires that an electronic form of the
document be produced, in accordance with particular information technology
requirements, by means of a particular kind of electronic communication—the
entity’s requirement has been met; and
(d) if the document is required to be
produced to a Commonwealth entity, or to a person acting on behalf of a
Commonwealth entity, and the entity requires that particular action be taken by
way of verifying the receipt of the document—the entity’s requirement has been
met; and
(e) if the document is required to be
produced to a person who is neither a Commonwealth entity nor a person acting
on behalf of a Commonwealth entity—the person to whom the document is required
to be produced consents to the production, by means of an electronic
communication, of an electronic form of the document.
Permission to produce a document
(2) If, under a law of the Commonwealth, a
person is permitted to produce a document that is in the form of paper, an
article or other material, then, instead of producing the document in that
form, the person may produce, by means of an electronic communication, an
electronic form of the document, where:
(a) in all cases—having regard to all
the relevant circumstances at the time of the communication, the method of
generating the electronic form of the document provided a reliable means of
assuring the maintenance of the integrity of the information contained in the
document; and
(b) in all cases—at the time the
communication was sent, it was reasonable to expect that the information
contained in the electronic form of the document would be readily accessible so
as to be useable for subsequent reference; and
(c) if the document is permitted to be
produced to a Commonwealth entity, or to a person acting on behalf of a
Commonwealth entity, and the entity requires that an electronic form of the
document be produced, in accordance with particular information technology
requirements, by means of a particular kind of electronic communication—the
entity’s requirement has been met; and
(d) if the document is permitted to be
produced to a Commonwealth entity, or to a person acting on behalf of a
Commonwealth entity, and the entity requires that particular action be taken by
way of verifying the receipt of the document—the entity’s requirement has been
met; and
(e) if the document is permitted to be
produced to a person who is neither a Commonwealth entity nor a person acting
on behalf of a Commonwealth entity—the person to whom the document is permitted
to be produced consents to the production, by means of an electronic
communication, of an electronic form of the document.
Integrity of information
(3) For the purposes of this section, the
integrity of information contained in a document is maintained if, and only if,
the information has remained complete and unaltered, apart from:
(a) the addition of any endorsement;
or
(b) any immaterial change;
which arises in the normal course of communication,
storage or display.
Certain other laws not affected
(4) This section does not affect the
operation of any other law of the Commonwealth that makes provision for or in
relation to requiring or permitting electronic forms of documents to be
produced, in accordance with particular information technology requirements:
(a) on a particular kind of data
storage device; or
(b) by means of a particular kind of
electronic communication.
Exemption—migration and citizenship documents
(5) Schedule 1 has effect.
Copyright
(6) The following provisions have effect:
(a) the generation of an electronic
form of a document for the purposes of:
(i) this section; or
(ii) a law of a State or
Territory that corresponds to this section;
does not constitute an
infringement of the copyright in a work or other subject matter embodied in the
document;
(b) the production, by means of an
electronic communication, of an electronic form of a document for the purposes
of:
(i) this section; or
(ii) a law of a State or
Territory that corresponds to this section;
does not constitute an
infringement of the copyright in a work or other subject matter embodied in the
document.
Note: Section 13 sets out exemptions from this
section.
12
Retention
Recording of information
(1) If, under a law of the Commonwealth, a
person is required to record information in writing, that requirement is taken
to have been met if the person records the information in electronic form,
where:
(a) in all cases—at the time of the
recording of the information, it was reasonable to expect that the information
would be readily accessible so as to be useable for subsequent reference; and
(b) if the regulations require that
the information be recorded, in electronic form, on a particular kind of data
storage device—that requirement has been met.
Retention of written document
(2) If, under a law of the Commonwealth, a
person is required to retain, for a particular period, a document that is in
the form of paper, an article or other material, that requirement is taken to
have been met if the person retains an electronic form of the document
throughout that period, where:
(a) in all cases—having regard to all
the relevant circumstances at the time of the generation of the electronic form
of the document, the method of generating the electronic form of the document
provided a reliable means of assuring the maintenance of the integrity of the
information contained in the document; and
(b) in all cases—at the time of the
generation of the electronic form of the document, it was reasonable to expect
that the information contained in the electronic form of the document would be
readily accessible so as to be useable for subsequent reference; and
(c) if the regulations require that
the electronic form of the document be retained on a particular kind of data
storage device—that requirement has been met.
(3) For the purposes of subsection (2),
the integrity of information contained in a document is maintained if, and only
if, the information has remained complete and unaltered, apart from:
(a) the addition of any endorsement;
or
(b) any immaterial change;
which arises in the normal course of communication,
storage or display.
Retention of electronic communications
(4) If, under a law of the Commonwealth, a
person (the first person) is required to retain, for a particular
period, information that was the subject of an electronic communication, that
requirement is taken to be met if the first person retains, or causes another
person to retain, in electronic form, the information throughout that period,
where:
(a) in all cases—at the time of
commencement of the retention of the information, it was reasonable to expect
that the information would be readily accessible so as to be useable for
subsequent reference; and
(b) in all cases—having regard to all
the relevant circumstances at the time of commencement of the retention of the
information, the method of retaining the information in electronic form
provided a reliable means of assuring the maintenance of the integrity of the
information contained in the electronic communication; and
(c) in all cases—throughout that
period, the first person also retains, or causes the other person to retain, in
electronic form, such additional information obtained by the first
person as is sufficient to enable the identification of the following:
(i) the origin of the
electronic communication;
(ii) the destination of the
electronic communication;
(iii) the time when the
electronic communication was sent;
(iv) the time when the
electronic communication was received; and
(d) in all cases—at the time of
commencement of the retention of the additional information covered by paragraph (c),
it was reasonable to expect that the additional information would be readily
accessible so as to be useable for subsequent reference; and
(e) if the regulations require that
the information be retained, in electronic form, on a particular kind of data
storage device—that requirement is met throughout that period.
(5) For the purposes of subsection (4),
the integrity of information that was the subject of an electronic
communication is maintained if, and only if, the information has remained complete
and unaltered, apart from:
(a) the addition of any endorsement;
or
(b) any immaterial change;
which arises in the normal course of communication,
storage or display.
Copyright
(6) The generation of an electronic form of a
document for the purposes of:
(a) this section; or
(b) a law of a State or Territory that
corresponds to this section;
does not constitute an infringement of the copyright in a
work or other subject matter embodied in the document.
Note: Section 13 sets out exemptions from this
section.
13
Exemptions from this Division
Exemptions under the regulations
(1) The regulations may provide that this
Division, or a specified provision of this Division, does not apply to a
specified requirement.
(2) The regulations may provide that this
Division, or a specified provision of this Division, does not apply to a
specified permission.
(3) The regulations may provide that this
Division, or a specified provision of this Division, does not apply to a
specified law of the Commonwealth.
Exemptions for courts and tribunals
(4) This Division does not apply to the
practice and procedure of a court or tribunal. For this purpose, practice
and procedure includes all matters in relation to which rules of court
may be made.
Evidence Act 1995 etc. not affected
(5) This Division does not affect the
operation of:
(a) the Evidence Act 1995; or
(b) a law of a State or Territory that
corresponds to the Evidence Act 1995; or
(c) a law of a State or Territory, or
a rule of common law, that makes provision for the way in which evidence is
given in proceedings in a court.
Division 3—Other provisions relating to laws of the Commonwealth
14
Time and place of dispatch and receipt of electronic communications
Time of dispatch
(1) For the purposes of a law of the
Commonwealth, if an electronic communication enters a single information system
outside the control of the originator, then, unless otherwise agreed between
the originator and the addressee of the electronic communication, the dispatch
of the electronic communication occurs when it enters that information system.
(2) For the purposes of a law of the
Commonwealth, if an electronic communication enters successively 2 or more
information systems outside the control of the originator, then, unless otherwise
agreed between the originator and the addressee of the electronic
communication, the dispatch of the electronic communication occurs when it
enters the first of those information systems.
Time of receipt
(3) For the purposes of a law of the
Commonwealth, if the addressee of an electronic communication has designated an
information system for the purpose of receiving electronic communications,
then, unless otherwise agreed between the originator and the addressee of the
electronic communication, the time of receipt of the electronic communication
is the time when the electronic communication enters that information system.
(4) For the purposes of a law of the
Commonwealth, if the addressee of an electronic communication has not
designated an information system for the purpose of receiving electronic
communications, then, unless otherwise agreed between the originator and the
addressee of the electronic communication, the time of receipt of the
electronic communication is the time when the electronic communication comes to
the attention of the addressee.
Place of dispatch and receipt
(5) For the purposes of a law of the
Commonwealth, unless otherwise agreed between the originator and the addressee
of an electronic communication:
(a) the electronic communication is
taken to have been dispatched at the place where the originator has its place
of business; and
(b) the electronic communication is
taken to have been received at the place where the addressee has its place of
business.
(6) For the purposes of the application of subsection (5)
to an electronic communication:
(a) if the originator or addressee has
more than one place of business, and one of those places has a closer
relationship to the underlying transaction—it is to be assumed that that place
of business is the originator’s or addressee’s only place of business; and
(b) if the originator or addressee has
more than one place of business, but paragraph (a) does not apply—it is to
be assumed that the originator’s or addressee’s principal place of business is
the originator’s or addressee’s only place of business; and
(c) if the originator or addressee
does not have a place of business—it is to be assumed that the originator’s or
addressee’s place of business is the place where the originator or addressee
ordinarily resides.
Exemptions
(7) The regulations may provide that this
section does not apply to a specified electronic communication.
(8) The regulations may provide that this
section does not apply to a specified law of the Commonwealth.
15 Attribution
of electronic communications
(1) For the purposes of a law of the
Commonwealth, unless otherwise agreed between the purported originator and the
addressee of an electronic communication, the purported originator of the
electronic communication is bound by that communication only if the
communication was sent by the purported originator or with the authority of the
purported originator.
(2) Subsection (1) is not intended to
affect the operation of a law (whether written or unwritten) that makes provision
for:
(a) conduct engaged in by a person
within the scope of the person’s actual or apparent authority to be attributed
to another person; or
(b) a person to be bound by conduct
engaged in by another person within the scope of the other person’s actual or
apparent authority.
Exemptions
(3) The regulations may provide that this
section does not apply to a specified electronic communication.
(4) The regulations may provide that this
section does not apply to a specified law of the Commonwealth.
Certain provisions of the Evidence Act 1995 etc. not
affected
(5) This section does not affect the
operation of:
(a) section 87 or 88 of the Evidence
Act 1995; or
(b) a law of a State or Territory that
corresponds to section 87 or 88 of the Evidence Act 1995; or
(c) a law of a State or Territory, or
a rule of common law, that provides for a statement made by a person to be
treated as an admission made by a party to a proceeding in a court.
Part 3—Miscellaneous
16
Regulations
The Governor‑General may make
regulations prescribing matters:
(a) required or permitted by this Act
to be prescribed; or
(b) necessary or convenient to be
prescribed for carrying out or giving effect to this Act.