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This is a Bill, not an Act. For current law, see the Acts databases.
1998-99
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Year 2000
Information Disclosure Bill 1999
No. ,
1999
(Communications, Information Technology and the
Arts)
A Bill for an Act to encourage the
voluntary disclosure and exchange of information about year 2000 computer
problems and remediation efforts, and for other purposes
ISBN: 0642
389381
Contents
A Bill for an Act to encourage the voluntary disclosure
and exchange of information about year 2000 computer problems and remediation
efforts, and for other purposes
The Parliament of Australia enacts:
This Act may be cited as the Year 2000 Information Disclosure Act
1999.
This Act commences on the day after the day on which it receives the
Royal Assent.
The following is a simplified outline of this Act:
• This Act provides a framework to encourage the voluntary disclosure
and exchange of information about Year 2000 computer problems and remediation
efforts.
• A person may make a Year 2000 disclosure statement for the purposes
of this Act at any time after the commencement of this Act and before 1 July
2001.
• A person is protected from civil liability for a Year 2000
disclosure statement unless one of the exceptions set out in this Act
applies.
• A Year 2000 disclosure statement does not amend a contract unless
the parties otherwise agree.
• Arrangements for the disclosure of Year 2000 information are exempt
from section 45 of the Trade Practices Act 1974 (which deals with
anti-competitive conduct).
In this Act, unless the contrary intention appears:
acquire, in relation to goods or services, has the same
meaning as in the Trade Practices Act 1974.
arrive at, in relation to an understanding, includes reach or
enter into.
civil action means a civil action in a court, and includes a
civil proceeding in a court.
consequences includes potential consequences.
constitutional corporation means a corporation to which
paragraph 51(xx) of the Constitution applies.
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 of writing means a
communication of writing by means of guided and/or unguided electromagnetic
energy (for example, a facsimile transmission or electronic mail).
goods has the same meaning as in the Trade Practices Act
1974.
implications includes potential implications.
original Year 2000 disclosure statement has the meaning given
by section 8.
prescribed self-governing Territory means a self-governing
Territory specified in the regulations.
problems includes potential problems.
republished Year 2000 disclosure statement has the meaning
given by section 9.
self-governing Territory means:
(a) the Australian Capital Territory; or
(b) the Northern Territory; or
(c) Norfolk Island.
services has the same meaning as in the Trade Practices
Act 1974.
statement includes:
(a) a distinct part of a statement; and
(b) a statement made to the public or a section of the public.
supply has the same meaning as in the Trade Practices Act
1974.
Year 2000 disclosure statement has the meaning given by
section 7.
Year 2000 processing means the processing (including
calculating, comparing, sequencing, displaying or storing), transmitting or
receiving of date data (whether or not the date data relates to the year
2000).
This Act binds the Crown in each of its capacities.
This Act extends to all the external Territories.
For the purposes of this Act, a Year 2000 disclosure
statement is:
(a) an original Year 2000 disclosure statement (see section
8); or
(b) a republished Year 2000 disclosure statement (see
section 9).
(1) For the purposes of this Act, an original Year 2000 disclosure
statement is a statement that:
(a) relates solely to any or all of the following:
(i) Year 2000 processing;
(ii) the detection of problems relating to Year 2000 processing;
(iii) the prevention of problems relating to Year 2000
processing;
(iv) the remediation of problems relating to Year 2000
processing;
(v) the consequences or implications, for the supply of goods or services,
of problems relating to Year 2000 processing;
(vi) contingency planning, risk management, remediation efforts or other
arrangements for dealing with consequences or implications referred to in
subparagraph (v);
(vii) the consequences or implications, for the activities or capabilities
of a person, of problems relating to Year 2000 processing;
(viii) contingency planning, risk management, remediation efforts or other
arrangements for dealing with consequences or implications referred to in
subparagraph (vii); and
(b) includes words to the effect that the statement is a Year 2000
disclosure statement for the purposes of this Act; and
(c) includes words to the effect that a person may be protected by this
Act from liability for the statement in certain circumstances; and
(d) is made after the commencement of this section and before 1 July 2001;
and
(e) identifies the person who authorised the statement; and
(f) satisfies one of the following conditions:
(i) the statement is made in writing;
(ii) the statement is made in a data storage device and is capable of
being reproduced in writing from that device (with or without the aid of any
other article or device);
(iii) the statement is made by way of an electronic communication of
writing.
(2) The subparagraphs of paragraph (1)(a) do not limit each
other.
(3) A statement is taken to comply with paragraphs (1)(b) and (c) if the
statement includes the following words:
This statement is a Year 2000 disclosure statement for the purposes of the
Year 2000 Information Disclosure Act 1999. A person may be protected by
that Act from liability for this statement in certain circumstances.
For the purposes of this Act, a republished Year 2000 disclosure
statement is a statement that:
(a) consists of the republication, retransmission or reproduction of the
whole of an original Year 2000 disclosure statement; and
(b) is made after the commencement of this section and before 1 July 2001;
and
(c) satisfies one of the following conditions:
(i) the statement is made in writing;
(ii) the statement is made in a data storage device and is capable of
being reproduced in writing from that device (with or without the aid of any
other article or device);
(iii) the statement is made by way of an electronic communication of
writing.
(1) No civil action lies against a person for or in relation to any matter
or thing arising out of, or incidental to, the making of a Year 2000 disclosure
statement.
(2) A Year 2000 disclosure statement is not admissible as evidence against
a person in a civil action to which the person is a party.
False statements and pre-contractual statements
(1) The rules in section 10 do not apply to a person (the first
person) if:
(a) the Year 2000 disclosure statement is false or misleading in a
material particular and the first person:
(i) knew that the statement was false or misleading in a material
particular; or
(ii) was reckless as to whether the statement was false or misleading in a
material particular; or
(b) all of the following conditions are satisfied:
(i) the Year 2000 disclosure statement was made to another person
(otherwise than in the other person’s capacity as a member of the public
or of a section of the public) in connection with the formation of a
contract;
(ii) the other person, or a representative of the other person, is a party
to the civil action;
(iii) the civil action relates to the contract.
Statements made in fulfilment of an obligation
(2) The rules in section 10 do not apply to a Year 2000 disclosure
statement if:
(a) the Year 2000 disclosure statement was made in fulfilment of an
obligation imposed under a contract; or
(b) the Year 2000 disclosure statement was made in fulfilment of an
obligation imposed under a law of the Commonwealth, a State or a
Territory.
Statements made to induce consumers to acquire goods or
services
(3) The rules in section 10 do not apply to a civil action if:
(a) all of the following conditions are satisfied:
(i) the Year 2000 disclosure statement was made for the sole or dominant
purpose of inducing persons to acquire goods or services identified in the
statement;
(ii) any of those persons acquired the goods or services as a
consumer;
(iii) the consumer concerned, or a representative of the consumer
concerned, is a party to the civil action;
(iv) the civil action relates to the goods or services acquired by the
consumer; or
(b) all of the following conditions are satisfied:
(i) the Year 2000 disclosure statement was made for the sole or dominant
purpose of inducing a particular consumer to acquire goods or services
identified in the statement;
(ii) the consumer acquired the goods or services;
(iii) the consumer, or a representative of the consumer, is a party to the
civil action;
(iv) the civil action relates to the goods or services acquired by the
consumer.
Note: For the definition of consumer, see
subsections (6), (7) and (8).
Injunctions, declarations, regulatory or enforcement proceedings,
intellectual property rights
(4) The rules in section 10 do not apply to a civil action to the extent
to which:
(a) the civil action consists of proceedings for a restraining injunction
or for declaratory relief; or
(b) the civil action consists of proceedings instituted by a person or
body under a law of the Commonwealth, a State or a Territory:
(i) in the performance of a regulatory or enforcement function conferred
on the person or body by such a law; or
(ii) in the exercise of a regulatory or enforcement power conferred on the
person or body by such a law; or
(c) the civil action is an action for infringement of copyright, a trade
mark, a design or a patent.
Paragraphs not limited
(5) The paragraphs of subsections (1), (2), (3) and (4) do not limit each
other.
Consumers—goods
and non-financial services
(6) Section 4B of the Trade Practices Act 1974 applies for the
purposes of paragraphs (3)(a) and (b) of this section in a corresponding way to
the way in which it applies for the purposes of the Trade Practices Act
1974.
(7) For the purposes of subsection (6), it is to be assumed that a
reference in section 4B of the Trade Practices Act 1974 to services does
not include a reference to financial services (within the meaning of that
Act).
Consumers—financial services
(8) Section 12BC of the Australian Securities and Investments
Commission Act 1989 applies for the purposes of paragraphs (3)(a) and (b) of
this section in a corresponding way to the way in which it applies for the
purposes of Division 2 of Part 2 of that Act.
(1) The rules in section 10 do not apply to a person (the first
person) unless:
(a) the first person is:
(i) a constitutional corporation; or
(ii) the Commonwealth; or
(iii) an authority of the Commonwealth; or
(b) the Year 2000 disclosure statement is an original Year 2000 disclosure
statement that was authorised by:
(i) a constitutional corporation; or
(ii) the Commonwealth; or
(iii) an authority of the Commonwealth; or
(c) all of the following conditions are satisfied:
(i) the Year 2000 disclosure statement is a republished Year 2000
disclosure statement that relates to an original Year 2000 disclosure
statement;
(ii) the original Year 2000 disclosure statement was authorised by a
constitutional corporation;
(iii) the making of the republished Year 2000 disclosure statement has
significance for the activities, functions, relationships, reputation or
business of the constitutional corporation; or
(d) all of the following conditions are satisfied:
(i) the Year 2000 disclosure statement is a republished Year 2000
disclosure statement that relates to an original Year 2000 disclosure
statement;
(ii) the original Year 2000 disclosure statement was authorised by the
Commonwealth or an authority of the Commonwealth;
(iii) the making of the republished Year 2000 disclosure statement has
significance for the activities, functions or relationships of the Commonwealth
or the authority of the Commonwealth, as the case may be; or
(e) the Year 2000 disclosure statement was made in a Territory;
or
(f) the Year 2000 disclosure statement was made in the course of, or in
relation to, trade or commerce:
(i) between Australia and places outside Australia; or
(ii) among the States; or
(iii) within a Territory, between a State and a Territory or between 2
Territories; or
(iv) by way of the supply of goods or services to the Commonwealth or an
authority of the Commonwealth; or
(g) the Year 2000 disclosure statement was:
(i) sent by post or other like service; or
(ii) made by way of an electronic communication of writing; or
(h) the civil action is an action under a law of the Commonwealth or of a
Territory; or
(i) all of the following conditions are satisfied:
(i) a constitutional corporation, the Commonwealth or an authority of the
Commonwealth is a party to the civil action;
(ii) that party has made a claim in the civil action;
(iii) the grounds for that party’s claim are based on the Year 2000
disclosure statement.
(2) In this section:
State includes a prescribed self-governing
Territory.
Territory does not include a prescribed self-governing
Territory.
(1) If a civil action is instituted against a person (the first
person) by another person (the second person), the first
person is not entitled to plead or otherwise rely on the rule in subsection
10(1) unless:
(a) the first person gives the second person a statement (the
explanatory statement) to the effect that the first person
believes that the exception set out in paragraph 11(1)(a) is not applicable;
and
(b) the explanatory statement sets out the grounds for that
belief; and
(c) the explanatory statement satisfies one of the following
conditions:
(i) the explanatory statement is made in writing;
(ii) the explanatory statement is made in a data storage
device and is capable of being reproduced in writing from that device (with or
without the aid of any other article or device);
(iii) the explanatory statement is made by way of an
electronic communication of writing.
(2) If the first person gives the second person an explanatory
statement as mentioned in subsection (1), the explanatory
statement is not admissible in any civil action except for the purposes
of determining whether subsection (1) has been complied with.
(3) The second person may waive compliance with subsection (1).
Corporations
(1) If, in any proceedings arising out of paragraph 11(1)(a), it is
necessary to establish:
(a) whether a corporation knew that a Year 2000 disclosure statement was
false or misleading in a material particular; or
(b) whether a corporation was reckless as to whether a Year 2000
disclosure statement was false or misleading in a material particular;
it is sufficient to show that:
(c) a director, employee or agent of the corporation engaged in conduct in
relation to the Year 2000 disclosure statement; and
(d) the director, employee or agent was, in engaging in that conduct,
acting within the scope of his or her actual or apparent authority;
and
(e) the director, employee or agent:
(i) knew that the Year 2000 disclosure statement was false or misleading
in a material particular; or
(ii) was reckless as to whether the Year 2000 disclosure statement was
false or misleading in a material particular;
as the case may be.
Persons other than corporations
(2) If, in any proceedings arising out of paragraph 11(1)(a), it is
necessary to establish:
(a) whether a person other than a corporation knew that a Year 2000
disclosure statement was false or misleading in a material particular;
or
(b) whether a person other than a corporation was reckless as to whether a
Year 2000 disclosure statement was false or misleading in a material
particular;
it is sufficient to show that:
(c) an employee or agent of the person engaged in conduct in relation to
the Year 2000 disclosure statement; and
(d) the employee or agent was, in engaging in that conduct, acting within
the scope of his or her actual or apparent authority; and
(e) the employee or agent:
(i) knew that the Year 2000 disclosure statement was false or misleading
in a material particular; or
(ii) was reckless as to whether the Year 2000 disclosure statement was
false or misleading in a material particular;
as the case may be.
Definition
(3) A reference in this section to a director includes a
reference to a constituent member of a body corporate incorporated for a public
purpose by a law of the Commonwealth, a State or a Territory.
(1) The making of a Year 2000 disclosure statement is taken not to amend,
alter or vary a contract unless:
(a) both:
(i) the parties to the contract have expressly agreed to the amendment,
alteration or variation; and
(ii) that agreement satisfies one of the conditions set out in subsection
(2); or
(b) the contract expressly provides for the amendment, alteration or
variation by way of the making of a Year 2000 disclosure statement.
(2) The conditions referred to in subparagraph (1)(a)(ii) are as
follows:
(a) the
agreement is made in writing;
(b) the agreement is embodied in a data storage device and is capable of
being reproduced in writing from that device (with or without the aid of any
other article or device);
(c) the agreement is made by way of one or more electronic communications
of writing.
(1) The rule in section 15 does not apply to a contract unless:
(a) a party to the contract is:
(i) a constitutional corporation; or
(ii) the Commonwealth; or
(iii) an authority of the Commonwealth; or
(b) the contract was made in the course of, or in relation to, trade or
commerce:
(i) between Australia and places outside Australia; or
(ii) among the States; or
(iii) within a Territory, between a State and a Territory or between 2
Territories; or
(iv) by way of the supply of goods or services to the Commonwealth or an
authority of the Commonwealth; or
(c) the contract was made in a Territory; or
(d) the contract was:
(i) made by post or other like service; or
(ii) made by way of one or more electronic communications of
writing.
(2) In this section:
State includes a prescribed self-governing
Territory.
Territory does not include a prescribed self-governing
Territory.
Contracts, arrangements and understandings
(1) Section 45 of the Trade Practices Act 1974 does not apply to or
in relation to:
(a) a contract or arrangement made:
(i) after the commencement of this section; and
(ii) before 1 July 2001; or
(b) an understanding arrived at:
(i) after the commencement of this section; and
(ii) before 1 July 2001;
to the extent to which the contract, arrangement or understanding provides
for the disclosure and/or exchange of information, by any or all of the parties
to the contract, arrangement or understanding, for the sole purpose of
facilitating any or all of the following:
(c) the detection of problems relating to Year 2000 processing;
(d) the prevention of problems relating to Year 2000 processing;
(e) the remediation of problems relating to Year 2000
processing;
(f) awareness of the consequences or implications, for the supply of goods
or services, of problems relating to Year 2000 processing;
(g) contingency planning, risk management, remediation efforts or other
arrangements for dealing with consequences or implications referred to in
paragraph (f);
(h) awareness of the consequences or implications, for the activities or
capabilities of a person, of problems relating to Year 2000
processing;
(i) contingency planning, risk management, remediation efforts or other
arrangements for dealing with consequences or implications referred to in
paragraph (h).
Proposed contracts, arrangements and understandings
(2) Section 45 of the Trade Practices Act 1974 does not apply to or
in relation to:
(a) a contract or arrangement proposed to be made:
(i) after the commencement of this section; and
(ii) before 1 July 2001; or
(b) an understanding proposed to be arrived at:
(i) after the commencement of this section; and
(ii) before 1 July 2001;
to the extent to which the proposed contract, arrangement or understanding
would provide for the disclosure and/or exchange of information, by any or all
of the parties to the proposed contract, arrangement or understanding, for the
sole purpose of facilitating any or all of the following:
(c) the
detection of problems relating to Year 2000 processing;
(d) the prevention of problems relating to Year 2000 processing;
(e) the remediation of problems relating to Year 2000
processing;
(f) awareness of the consequences or implications, for the supply of goods
or services, of problems relating to Year 2000 processing;
(g) contingency planning, risk management, remediation efforts or other
arrangements for dealing with consequences or implications referred to in
paragraph (f);
(h) awareness of the consequences or implications, for the activities or
capabilities of a person, of problems relating to Year 2000
processing;
(i) contingency planning, risk management, remediation efforts or other
arrangements for dealing with consequences or implications referred to in
paragraph (h).
This Act is not intended to exclude or limit the operation of a law of a
State or Territory that is capable of operating concurrently with this
Act.
This Act does not apply with respect to:
(a) State banking that does not extend beyond the limits of the State
concerned; or
(b) State insurance that does not so extend.
The Governor-General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving
effect to this Act.