Electronic Transactions Act 2001

This Act is the Electronic Transactions Act 2001.

The object of this Act is to provide a regulatory framework that—

recognises the importance of the information economy to the future economic and social prosperity of Australia; and

facilitates the use of electronic transactions; and

promotes business and community confidence in the use of electronic transactions; and

enables business and the community to use electronic communications in their dealings with government.

The following is a simplified outline of this Act:

for a territory law, a transaction is not invalid because it took place by means of 1 or more electronic communications;

the following requirements imposed under a territory law can generally be met in electronic form:

a requirement to give information in writing;

a requirement to provide a signature;

a requirement to produce a document;

a requirement to record information;

a requirement to retain a document;

for a territory law, 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 a territory law only if the communication was sent by the purported originator or with the authority of the purported originator.

Part 2A contains provisions applying to contracts involving electronic communications, including provisions (relating to the internet in particular) for the following:

an unaddressed proposal to form a contract is taken to be an invitation to make offers, rather than as an offer that if accepted would result in a contract;

a contract formed automatically is not invalid, void or unenforceable because there was no human review or intervention;

a portion of an electronic communication containing an input error can be withdrawn in certain circumstances;

the application of certain provisions of part 2 to the extent they do not apply of their own force.

The dictionary at the end of this Act is part of this Act.

Note 1 The dictionary at the end of this Act defines certain words and expressions used in this Act, and includes references (signpost definitions) to other words and expressions defined elsewhere in this Act or in other legislation.

For example, the signpost definition ‘computer program—see the Copyright Act 1968 (Cwlth), section 10.’ means that the expression ‘computer program’ is defined in that section and the definition applies to this Act.

Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act 2001, s 155 and s 156 (1)).

A note included in this Act is explanatory and is not part of this Act.

Note See Legislation Act 2001, s 127 (1), (4) and (5) for the legal status of notes.

The regulations may provide that all or stated provisions of this Act do not apply—

to transactions, requirements, permissions, electronic communications or other stated matters; or

in stated circumstances.

Note Power to make a statutory instrument in relation to a matter includes power to make provision in relation to a class of matter (see Legislation Act, s 48 (2)).

A regulation may provide that all or stated provisions of this Act do not apply to stated territory laws.

Part 2 Application of legal requirements to electronic communications

Division 2.1 General rule about validity of transactions for territory laws

For a territory law, a transaction is not invalid because it took place wholly or partly by means of 1 or more electronic communications.

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.

Division 2.2 Requirements under territory laws

If, under a territory law, 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; and

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

the person to whom the information is required to be given consents to the information being given by means of an electronic communication.

If, under a territory law, a person is permitted to give information in writing, the person may give the information by means of an electronic communication if—

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

the person to whom the information is permitted to be given consents to the information being given by means of an electronic communication.

This section does not affect the operation of any other territory law that provides for or in relation to requiring or permitting information to be given, in accordance with particular information technology requirements—

on a particular kind of data storage device; or

by means of a particular kind of electronic communication.

This section applies to a requirement or permission to give information, whether the expression give, send or serve, or any other expression, is used.

For this section, giving information includes, but is not limited to, the following:

making an application;

making or lodging a claim;

giving, sending or serving a notification;

lodging a return;

making a request;

making a declaration;

lodging or issuing a certificate;

making, varying or cancelling an election;

lodging an objection;

giving a statement of reasons.

If, under a territory law, a person’s signature is required, that requirement is taken to have been met for an electronic communication if—

a method is used to identify the person and to show the person’s intention in relation to the information communicated; and

the method was either—

as reliable as was appropriate for the purpose for which the electronic communication was generated or communicated, in the circumstances, including any relevant agreement; or

proven in fact to have fulfilled the functions mentioned in paragraph (a), by itself or together with further evidence; and

the person to whom the signature is required to be given consents to that requirement being met using the method mentioned in paragraph (a).

This section does not affect the operation of any other territory law that provides for or in relation to requiring—

an electronic communication to contain an electronic signature (however described); or

an electronic communication to contain a unique identification in an electronic form; or

a particular method to be used for an electronic communication to identify the originator of the communication and to show the originator’s intention in relation to the information communicated.

The reference in subsection (1) to a law that requires a signature includes a reference to a law that provides consequences for the absence of a signature.

If, under a territory law, 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; and

having regard to all the relevant circumstances at the time the communication was sent, 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

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

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.

If, under a territory law, 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 if—

having regard to all the relevant circumstances at the time the communication was sent, 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

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

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.

For 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—

the addition of any endorsement; or

any immaterial change;

which arises in the normal course of communication, storage or display.

This section does not affect the operation of any other territory law that provides for or in relation to requiring or permitting electronic forms of documents to be produced, in accordance with particular information technology requirements—

on a particular kind of data storage device; or

by means of a particular kind of electronic communication.

If, under a territory law, 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; and

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

if the regulations require that the information be recorded on a particular kind of data storage device—that requirement has been met.

If, under a territory law, 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, or causes another person to retain, an electronic form of the document throughout that period; and

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

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

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 throughout that period.

For 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—

the addition of any endorsement; or

any immaterial change;

which arises in the normal course of communication, storage or display.

If, under a territory law, 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 have been met if—

the first person retains, or causes another person to retain, in electronic form, the information throughout that period; and

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

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

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:

the origin of the electronic communication;

the destination of the electronic communication;

the time when the electronic communication was sent;

the time when the electronic communication was received; and

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

if the regulations require that the information be retained on a particular kind of data storage device—that requirement has been met throughout that period.

For 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—

the addition of any endorsement; or

any immaterial change;

which arises in the normal course of communication, storage or display.

Division 2.3 Other provisions relating to territory laws

For a territory law, unless otherwise agreed between the originator and the addressee of an electronic communication, the time of dispatch of the electronic communication is—

the time when the electronic communication leaves an information system under the control of the originator or of the party who sent it on behalf of the originator; or

if the electronic communication has not left an information system under the control of the originator or of the party who sent it on behalf of the originator—the time when the electronic communication is received by the addressee.

Example—par (b)

the exchange by parties of electronic communications through the same information system

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

This section applies even though the place where the information system supporting an electronic address is located may be different from the place where the electronic communication is taken to have been dispatched under section 13B.