Electronic Communications Act 2000

This Act may be cited as the Electronic

Communications Act 2000.

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 communications; and

promotes business and community confidence in the use of electronic communications; 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 the purposes of a law of this jurisdiction, a transaction is not invalid because it took place by means of one or more electronic communications; and

for the purposes of the law of this jurisdiction, a government document is not invalid because it was issued by means of 1 or more electronic communications; and

the following requirements imposed under a law of this jurisdiction 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; and

for the purposes of a law of this jurisdiction, provision is made for determining the time and place of the transmission and receipt of an electronic communication; and

the purported originator of an electronic communication is bound by it for the purposes of a law of this jurisdiction 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 to be regarded as 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a portion of an electronic communication containing an input error can be withdrawn in certain circumstances;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.

Part

3 contains provisions applying to the issue of a government document by means of an approved information system and enables the issue of a government document by means of electronic communication in circumstances where an Act provides for the issue of the document only in the form of a physical document or item.

In this Act, unless the contrary intention appears—

addressee of an electronic communication means a person who is intended by the originator to receive the electronic communication, but does not include a person acting as an intermediary with respect to the electronic communication;

approved information system means an information system approved under section 16(1)(a);

automated message system means a computer program or an electronic or other automated means used to initiate an action or respond to data messages in whole or in part, without review or intervention by a natural person each time an action is initiated or a response is generated by the system;

consent includes consent that can reasonably be inferred from the conduct of the person concerned, but does not include consent given subject to conditions unless the conditions are complied with;

data includes the whole or part of a computer program within the meaning of the Copyright

Act 1968 of the Commonwealth;

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 communication of information in the form of data, text or images by means of guided or unguided electromagnetic energy, or both;

or

a communication of information in the form of sound by means of guided or unguided electromagnetic energy, or both, where the sound is processed at its destination by an automated voice recognition system;

government agency means—

a Minister of the Crown; or

a person who holds an office established by an Act;

or

an administrative unit of the Public Service; or

South Australia Police; or

a council; or

an incorporated or unincorporated body—

established or continued in existence for a public purpose by an

Act; or

established or continued in existence for a public purpose under an

Act (other than an Act providing for the incorporation of companies or associations, co‑operatives, societies or other voluntary organisations); or

subject to control or direction by the Governor, a Minister of the

Crown or other instrumentality or agency of the Crown or a council (whether or not the body is established or continued in existence by or under an Act);

or

a person or body declared by the regulations to be a government agency;

government document means a document issued by or on behalf of a government agency that does not itself constitute a transaction (whether or not the document is issued as a result of a transaction or in connection with 1 or more transactions);

[Note: ExamplesGovernment documents would include licences, permits and certificates.]

information means information in the form of data, text, images or sound;

information system means a system for generating, sending, receiving, storing or otherwise processing electronic communications;

information technology requirements includes software requirements;

law of this jurisdiction means any law in force in this jurisdiction, whether in the civil or criminal jurisdiction and whether written or unwritten, but does not include a law of the

Commonwealth;

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;

originator of an electronic communication means a person by whom, or on whose behalf, the electronic communication has been sent or generated before storage, if any, but does not include a person acting as an intermediary with respect to the electronic communication;

performance of a contract includes non‑performance of the contract;

place of business means—

in relation to a person, other than an entity referred to in paragraph (b)—a place where the person maintains a non‑transitory establishment to pursue an economic activity other than the temporary provision of goods or services out of a specific location; or

in relation to a government, an authority of a government or a non‑profit body—a place where any operations or activities are carried out by that government, authority or body;

responsible Minister means—

in relation to a government document issued under an Act—the

Minister to whom the administration of that Act is committed; or

in relation to any other government document—the Minister responsible for the relevant government agency;

this jurisdiction means South

Australia;

transaction includes—

any transaction in the nature of a contract, agreement or other arrangement; and

any statement, declaration, demand, notice or request, including an offer and the acceptance of an offer, that the parties are required to make or choose to make in connection with the formation or performance of a contract, agreement or other arrangement; and

any transaction of a non‑commercial nature;

and

any application or request made, or notice or information provided, by a person seeking the issue of a government document or who has been issued a government document;

usage rules means rules approved under section 16(1)(b).

Notes in the text of this Act do not form part of this

Act.

Usage rules are not statutory instruments for the purposes of the law of the State and are not regulations for the purposes of the

Subordinate Legislation

Act 1978.

This Act binds the Crown in right of South Australia and, in so far as the legislative power of Parliament permits, the Crown in all its other capacities.

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

to transactions, requirements, permissions, electronic communications or other matters specified, or of classes specified, in the regulations for the purposes of this section; or

to government documents specified, or of classes specified, in the regulations for the purposes of this section; or

in circumstances specified, or of classes specified, in the regulations for the purposes of this section.

The regulations may provide that all or specified provisions of this Act do not apply to specified laws of this jurisdiction.

For the purposes of a law of this jurisdiction, a transaction is not invalid because it took place wholly or partly by means of one or more electronic communications.

For the purposes of a law of this jurisdiction, a government document is not invalid because it was issued wholly or partly by means of 1 or more electronic communications.

The general rules in this section do not apply in relation to the validity of a transaction or government document to the extent to which another, more specific, provision of this Act deals with the validity of the transaction or document.

If, under a law of this jurisdiction, 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—

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 law of this jurisdiction, a person is permitted to give information in writing, the person may give the information by means of an electronic communication, where—

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.

For the purposes of subsections (1)(b) and (2)(b), a person to whom prescribed legal proceedings relate will be taken to have consented to any information required or permitted to be given to the person in relation to those proceedings by means of an electronic communication.

Subsection (2a) only applies if, before giving the information by means of an electronic communication, it has been ascertained that the person, or a legal practitioner representing that person, will be readily able to access or download, and (if required) print, the information.

For the purposes of subsections (1)(b) and (2)(b), a person who is required to be given a government document under any Act or law will be taken to have consented to the document being given by means of an electronic communication if the person has provided an email address to the relevant government agency for that purpose.

This section does not affect the operation of usage rules applicable under Part 3 or of any other law of this jurisdiction that makes provision 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, (and the usage rules or other law will be taken to apply to the exclusion of this section).

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 the purposes of 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 law of this jurisdiction, the signature of a person is required, that requirement is taken to have been met in relation to an electronic communication if—

a method is used to identify the person and to indicate the person's intention in respect of the information communicated; and

the method used was either—

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

proven in fact to have fulfilled the functions described 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 by way of the use of the method mentioned in paragraph (a).

For the purposes of subsection (1)(c), a person to whom prescribed legal proceedings relate to whom a signature is required to be given will be taken to have consented to that requirement being met in relation to those proceedings by way of the use of the method mentioned in subsection (1)(a).

Subsection (1a) only applies if, before communicating by means of an electronic communication information in respect of which the signature of a person is required, it has been ascertained that the person to whom the signature is required to be given, or a legal practitioner representing that person, will be readily able to access or download, and (if required) print, the information.

For the purposes of subsection (1)(c), a person who is required to be given a signed government document under any Act or law will be taken to have consented to the signature requirement being met by way of the use of the method mentioned in subsection (1)(a).

This section does not affect the operation of usage rules applicable under Part 3 or of any other law of this jurisdiction that makes provision 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 in relation to an electronic communication to identify the originator of the communication and to indicate the originator's intention in respect of the information communicated, (and the usage rules or other law will be taken to apply to the exclusion of this section).

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 law of this jurisdiction, 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—

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 law of this jurisdiction, 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—

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 the purposes of subsections (1)(c) and (2)(c), a person to whom prescribed legal proceedings relate will be taken to have consented to the production of a document required or permitted to be produced in relation to those proceedings by means of an electronic communication.

Subsection (2a) only applies if, before producing a document by means of an electronic communication, it has been ascertained that the person, or a legal practitioner representing that person, will be readily able to access or download, and (if required) print, the document.

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—

the addition of any endorsement; or

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

For the purposes of subsections (1)(c) and (2)(c), a person to whom a government document is required to be produced for inspection will be taken to have consented to the document being produced by means of an electronic communication.

This section does not affect the operation of usage rules applicable under Part 3 or of any other law of this jurisdiction 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—

on a particular kind of data storage device; or

by means of a particular kind of electronic communication, (and the usage rules or other law will be taken to apply to the exclusion of this section).

If, under a law of this jurisdiction, 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—

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 law of this jurisdiction, 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, where—

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 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—

the addition of any endorsement; or

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

If, under a law of this jurisdiction, 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, where—

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 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—

the addition of any endorsement; or

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

For the purposes of a law of this jurisdiction, unless otherwise agreed between the originator and the addressee of an electronic communication, the time of transmission 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.

[Note: NoteParagraph (b) would apply to a case where the parties exchange electronic communications through the same information system.]

Subsection (1) 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 transmitted under section 13B.