Australia's legal framework on electronic commerce
The Electronic Transactions Act 1999
The Commonwealth Electronic Transactions Act 1999 was a major step towards supporting and encouraging the development of electronic commerce in Australia. It contains rules applying to the interpretation of other legislation.
Basically, it states that a transaction under a law of the Commonwealth will not be invalid simply because it was conducted by the use of electronic communications.
The Electronic Transactions Act allows any of the following requirements in transactions under Commonwealth law to be fulfilled in electronic form:
- Giving information in writing
- Providing a handwritten signature
- Producing a document in material form, and
- Recording or retaining information.
The implementation of the Electronic Transactions Act was in two stages
- Before 1 July 2001 it only applied to those laws of the Commonwealth that were specified in the Electronic Transactions Regulations 2000.
- On or after 1 July 2001 it applied to all laws of the Commonwealth unless they were specifically exempted from application of the Act by the Electronic Transactions Regulations 2000.
The Attorney-General’s decision to exempt a law from the application of the Electronic Transactions Act is made in consultation with other Departments. The decision is based on the commitment to deliver all appropriate services online where possible. Most exemptions can be found in Schedule 1 of the Electronic Transactions Regulations.
Uniform Electronic Transactions in the States and Territories
The Australian Government consulted with the States and Territories, to develop uniform legislation that removes legal obstacles to the development of electronic commerce throughout Australia. This was done through the Standing Committee of Attorneys-General in the form of a model uniform Electronic Transactions Bill 2000.
The uniform Bill was closely modelled on the Commonwealth's Electronic Transactions Act 1999 and mirrors the substantive provisions of the Commonwealth's Act. On 3 April 2000 the Attorney-General announced that all jurisdictions had endorsed the uniform Bill.
The enactment of the uniform Bill by the States and Territories had two important effects for every Australian. First, it allowed people to deal with many State and Territory departments and agencies electronically - in much the same way that they are now able to deal with many Australian departments and agencies following the enactment of the Commonwealth's Act.
Second, it applied to contract law. Most contracts in Australia are based on the laws of the States and Territories. For the first time in Australia, the law made absolutely clear the general principle that a person can enter into contracts electronically. In addition, reflecting the UNCITRAL Model Law, there are rules aimed at providing practical solutions to accommodate the use of electronic communications in contract formation (such as default rules on location of parties, and timing of receipt and dispatch of electronic communications).
Each State and Territory now has its own Electronics Transactions Act. They generally mirror the Commonwealth Electronic Transactions Act with occasional small differences in definitions and some additional sections.
Other laws affecting e-commerce
Consumer protection laws apply equally to online and offline environments. The Commonwealth’s Trade Practices Act 1974 and the Australian Security and Investment Commission Act 2001 apply regardless of whether a transaction is conducted through electronic or conventional means.
The Commonwealth’s Privacy Act 1988 regulates the collection and handling of personal information by Commonwealth government agencies, large private sector organisations as well as health care services providers and organisations that trade in personal information. The Privacy Act is technology neutral and applies to personal information comprised in electronic records as well as other mediums.
The Cybercrime Act 2001 created a number of investigation powers and criminal offences designed to protect the security, reliability, and integrity of computer data and electronic communications in the Criminal Code Act 1995. This outlaws activities such as unauthorised access to restricted data and spreading computer viruses.