Electronic Transactions Act 2011

sections 1 and 2 — on the day on which this Act receives the Royal Assent;

section 26 —

if the Criminal Code Amendment (Identity Crime) Act 2010 section 5 (section 5) comes into operation on or before the day on which section 24 comes into operation — when section 24 comes into operation; or

otherwise — when section 5 comes into operation;

the provisions of the Act other than sections 1, 2 and 26 — on a day fixed by proclamation, and different days may be fixed for different provisions.

recognises the importance of the electronic communication of information to the future economic and social prosperity of Western Australia; and

facilitates the use of electronic communication as a way of entering into transactions; and

promotes business and community confidence in the use of electronic communication as a way of entering into transactions; and

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

This section contains a simplified outline of this Act, intended as a guide to the general scheme and effect of the Act.

This Act provides —

that, with certain exceptions, a transaction is not invalid for the purposes of a law of the State because it took place by electronic communication;

that things that can or have to be done under a law of the State in relation to any of the following matters can generally be done by electronic communication —

giving information in writing;

providing a signature;

producing a document;

recording information;

retaining a document;

for determining the time and place of the dispatch and receipt of an electronic communication for the purposes of a law of the State;

that the purported originator of an electronic communication is bound by it for the purposes of a law of the State only if the communication was sent by the purported originator or with the authority of the purported originator.

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a portion of an electronic communication containing an input error can be withdrawn in certain circumstances;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

In this Act —

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;

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;

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.

Notes in this Act are provided to assist understanding and do not form part of the Act.

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

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.

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.

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.

This section does not affect the operation 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.

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;

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

This section does not affect the operation 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.

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 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,

This section does not affect the operation 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.

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,

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;

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,