ELECTRONIC TRANSACTIONS AMENDMENT BILL 2011

i Electronic Transactions Amendment Bill 2011 No. , 2011

Contents

1 Short

title

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2 Commencement

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3 Schedule(s)

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Schedule 1--Amendments

Electronic Transactions Act 1999

Electronic Transactions Amendment Bill 2011 No. , 2011 1

A Bill for an Act to amend the Electronic

Transactions Act 1999, and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Electronic Transactions Amendment

Act 2011.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

2 Electronic Transactions Amendment Bill 2011 No. , 2011

Commencement information

Column 1

Column 2

Column 3

Provision(s) Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Schedule 1

The 28th day after this Act receives the

Royal Assent.

Note:

This table relates only to the provisions of this Act as originally

enacted. It will not be amended to deal with any later amendments of

this Act.

(2) Any information in column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

Amendments Schedule 1

Electronic Transactions Amendment Bill 2011 No. , 2011 3

Schedule 1--Amendments

Electronic Transactions Act 1999

1 At the end of section 4

Add:

�

Part 2A contains provisions applying to contracts involving

electronic communications, including provisions (relating to

the internet in particular) for the following:

(a)

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;

(b)

a contract formed automatically is not invalid, void

or unenforceable because there was no human

review or intervention;

(c)

a portion of an electronic communication

containing an input error can be withdrawn in

certain circumstances;

(d)

the application of certain provisions of Part 2 to the

extent they do not apply of their own force.

2 Subsection 5(1)

Insert:

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.

3 Subsection 5(1)

Insert:

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4 Electronic Transactions Amendment Bill 2011 No. , 2011

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.

4 Subsection 5(1)

Insert:

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.

5 Subsection 5(1)

Insert:

performance of a contract includes non-performance of the

contract.

6 Subsection 5(1) (definition of place of business)

Repeal the definition, substitute:

place of business means:

(a) 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

(b) 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.

7 Subsection 5(1) (definition of transaction)

Repeal the definition, substitute:

transaction includes:

(a) any transaction in the nature of a contract, agreement or other

arrangement; and

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Electronic Transactions Amendment Bill 2011 No. , 2011 5

(b) 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

8 At the end of Part 1

Add:

7A Exemptions under the regulations

(1) The regulations may provide that all or specified provisions of this

Act do not apply:

(a) to transactions, requirements, permissions, electronic

communications or other matters specified, or of classes

specified, in the regulations for the purposes of this section;

(b) in circumstances specified, or of classes specified, in the

regulations for the purposes of this section.

(2) The regulations may provide that all or specified provisions of this

Act do not apply to specified laws of the Commonwealth.

7B Other exemptions

Exemptions for courts and tribunals

(1) Part 2A and Division 2 of Part 2 do 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

(2) Part 2A and Division 2 of Part 2 do 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

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6 Electronic Transactions Amendment Bill 2011 No. , 2011

makes provision for the way in which evidence is given in

proceedings in a court.

9 Subsections 8(3) and (4)

Repeal the subsections.

10 Section 9 (note)

Repeal the note.

11 Paragraph 10(1)(a)

Omit "approval of", substitute "intention in respect of".

12 Paragraph 10(1)(b)

Repeal the paragraph, substitute:

(b) in all cases--the method used was either:

(i) 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

(ii) proven in fact to have fulfilled the functions described

in paragraph (a), by itself or together with further

evidence; and

13 Paragraph 10(2)(c)

Omit "approval of", substitute "intention in respect of".

14 After subsection 10(2)

Insert:

(3) 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.

15 Section 10 (note)

Repeal the note.

16 Section 11 (note)

Repeal the note.

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Electronic Transactions Amendment Bill 2011 No. , 2011 7

17 Section 12 (note)

Repeal the note.

18 Section 13

Repeal the section.

19 Section 14

Repeal the section, substitute:

14 Time of dispatch

(1) For the purposes of a law of the Commonwealth, unless otherwise

agreed between the originator and the addressee of an electronic

communication, the time of dispatch of the electronic

communication is:

(a) 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

(b) 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:

Paragraph (b) would apply to a case where the parties exchange

electronic communications through the same information system.

(2) 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 dispatched under section 14B.

14A Time of receipt

(1) For the purposes of a law of the Commonwealth, unless otherwise

agreed between the originator and the addressee of an electronic

communication:

(a) the time of receipt of the electronic communication is the

time when the electronic communication becomes capable of

being retrieved by the addressee at an electronic address

designated by the addressee; or

(b) the time of receipt of the electronic communication at another

electronic address of the addressee is the time when both:

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8 Electronic Transactions Amendment Bill 2011 No. , 2011

(i) the electronic communication has become capable of

being retrieved by the addressee at that address; and

(ii) the addressee has become aware that the electronic

communication has been sent to that address.

(2) For the purposes of subsection (1), unless otherwise agreed

between the originator and the addressee of the electronic

communication, it is to be assumed that the electronic

communication is capable of being retrieved by the addressee

when it reaches the addressee's electronic address.

(3) 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 received under section 14B.

14B Place of dispatch and place of receipt

(1) 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.

(2) For the purposes of the application of subsection (1) to an

electronic communication:

(a) a party's place of business is assumed to be the location

indicated by that party, unless another party demonstrates

that the party making the indication does not have a place of

business at that location; and

(b) if a party has not indicated a place of business and has only

one place of business, it is to be assumed that that place is the

party's place of business; and

than one place of business, the place of business is that which

has the closest relationship to the underlying transaction,

having regard to the circumstances known to or contemplated

by the parties at any time before or at the conclusion of the

transaction; and

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Electronic Transactions Amendment Bill 2011 No. , 2011 9

(d) if a party has not indicated a place of business and has more

than one place of business, but paragraph (c) does not

apply--it is to be assumed that the party's principal place of

business is the party's only place of business; and

(e) if a party is a natural person and does not have a place of

business--it is to be assumed that the party's place of

business is the place of the party's habitual residence.

(3) A location is not a place of business merely because that is:

(a) where equipment and technology supporting an information

system used by a party are located; or

(b) where the information system may be accessed by other

parties.

(4) The sole fact that a party makes use of a domain name or email

address connected to a specific country does not create a

presumption that its place of business is located in that country.

20 Subsections 15(3) and (4)

Repeal the subsections.

21 After Part 2

Insert:

Part 2A--Additional provisions applying to

contracts involving electronic

communications

15A Application and operation of this Part

(1) Subject to subsection (2), this Part applies to the use of electronic

communications in connection with the formation or performance

of a contract between parties, and so applies:

(a) whether some or all of the parties are located within Australia

or elsewhere; and

(b) whether the contract is for business purposes, for personal,

family or household purposes, or for other purposes.

(2) This Part applies to or in relation to a contract only if:

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10 Electronic Transactions Amendment Bill 2011 No. , 2011

(a) the proper law of the contract is (or would on its formation

be) the law of a State or Territory; and

(b) at the time the contract is formed, there is no law of that State

or Territory in terms substantially the same as this Part.

15B Invitation to treat regarding contracts

(1) A proposal to form a contract made through one or more electronic

communications that:

(a) is not addressed to one or more specific parties; and

(b) is generally accessible to parties making use of information

systems;

is to be considered as an invitation to make offers, unless it clearly

indicates the intention of the party making the proposal to be

bound in case of acceptance.

(2) Subsection (1) extends to proposals that make use of interactive

applications for the placement of orders through information

systems.

15C Use of automated message systems for contract formation--

non-intervention of natural person

A contract formed by:

(a) the interaction of an automated message system and a natural

person; or

(b) the interaction of automated message systems;

is not invalid, void or unenforceable on the sole ground that no

natural person reviewed or intervened in each of the individual

actions carried out by the automated message systems or the

resulting contract.

15D Error in electronic communications regarding contracts

(1) This section applies in relation to a 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.

(2)

If:

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Electronic Transactions Amendment Bill 2011 No. , 2011 11

(a) a natural person makes an input error in an electronic

communication exchanged with the automated message

system of another party; and

(b) the automated message system does not provide the person

with an opportunity to correct the error;

the person, or the party on whose behalf the person was acting, has

the right to withdraw the portion of the electronic communication

in which the input error was made if:

acting, notifies the other party of the error as soon as possible

after having learned of the error and indicates that he or she

made an error in the electronic communication; and

(d) the person, or the party on whose behalf the person was

acting, has not used or received any material benefit or value

from the goods or services, if any, received from the other

party.

(3) The right of withdrawal of a portion of an electronic

communication under this section is not of itself a right to rescind

or otherwise terminate a contract.

(4) The consequences (if any) of the exercise of the right of

withdrawal of a portion of an electronic communication under this

section are to be determined in accordance with any applicable rule

of law.

Note:

In some circumstances the withdrawal of a portion of an electronic

communication may invalidate the entire communication or render it

ineffective for the purposes of contract formation (see paragraph 241

of the UNCITRAL explanatory note for the United Nations

Convention on the Use of Electronic Communications in International

Contracts, done at New York on 23 November 2005).

15E Application of Act in relation to contracts

(1) Subject to subsection (2), the provisions of sections 8 and 14 to

14B apply to:

(a) a transaction constituted by or relating to a contract; or

(b) an electronic communication relating to the formation or

performance of a contract;

in the same way as they apply to a transaction or electronic

communication referred to in those sections, and so apply as if the

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12 Electronic Transactions Amendment Bill 2011 No. , 2011

words "For the purposes of a law of the Commonwealth" and

"under a law of the Commonwealth" were omitted.

(2) However, this Part (including subsection (1)) does not apply to or

in relation to a contract to the extent that:

(a) Part 2 would of its own force have the same effect as this Part

if this Part applied; or

(b) a law of a State or Territory (that is in substantially the same

terms as Part 2) would of its own force have the same effect

as this Part if this Part applied.

Note:

This section applies provisions of Part 2 to contracts or proposed

contracts to the extent (if any) that those provisions do not apply

merely because they are expressed to apply in relation to "a law of the

Commonwealth". This section also disapplies the provisions of

Part 2A to the extent that Part 2 would apply of its own force. An

example where Part 2 may not apply of its own force is where a

contract is being negotiated in a State or Territory from a supplier

located overseas.

15F No interference with powers and functions of another

jurisdiction

(1)

If:

(a) apart from this subsection, this Part would operate so as to

prevent or interfere with the exercise of the powers, or the

performance of the functions or duties, of the government of

a State; and

(b) that operation would be invalid because of the Constitution;

this Part does not so operate.

(2)

If:

(a) apart from this subsection, this Part would operate so as to

prevent or interfere with the exercise of the powers, or the

performance of the functions or duties, of the government of

the Australian Capital Territory or the Northern Territory;

and

(b) that operation would be invalid because of the Constitution if

it were assumed that the Territory were a State;

this Part does not so operate.

22 At the end of Part 3

Add:

Amendments Schedule 1

Electronic Transactions Amendment Bill 2011 No. , 2011 13

17 Transitional provisions--Electronic Transactions Amendment Act

2011

(1) Regulations made under this Act before the commencement of

section 7A and in force immediately before that commencement

continue in force as if that section had been in force when they

were made.

(2) Subject to subsection (3):

(a) section 15B extends to proposals made before the

commencement date; and

(b) section 15C extends to actions carried out before the

commencement date; and

notices or requests, including offers and the acceptance of

offers, made or given before the commencement date.

(3) Subsection (2) and Part 2A do not apply in relation to contracts

formed before the commencement date.

(4) In subsections (2) and (3), commencement date means the date of

commencement of Part 2A.

Commonwealth of Australia Bills

ELECTRONIC TRANSACTIONS AMENDMENT BILL 2011