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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Electronic Transactions Bill 2011
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. Object 2
4. Simplified outline 3
5. Terms used and status of notes 4
6. Crown to be bound 6
7. Exemptions 6
Part 2 -- Application of legal
requirements and authorisations
to electronic communications
Division 1 -- General rule about validity of
transactions for the purposes of laws of
this jurisdiction
8. Validity of electronic transactions 7
Division 2 -- Things done under laws of this
jurisdiction
9. Writing 7
10. Signatures 9
11. Production of document 10
12. Retention of information and documents 11
Division 3 -- Other provisions relating to laws
of this jurisdiction
13. Time of dispatch 14
14. Time of receipt 15
15. Place of dispatch and place of receipt 15
16. Attribution of electronic communications 17
187--1 page i
Electronic Transactions Bill 2011
Contents
Part 3 -- Additional provisions
applying to contracts involving
electronic communications
17. Application and operation of this Part 18
18. Invitation to treat regarding contracts 18
19. Use of automated message systems for contract
formation -- non-intervention of natural person 18
20. Error in electronic communications regarding
contracts 19
21. Application of Act in relation to contracts 20
Part 4 -- Miscellaneous
22. Regulations 21
23. Transitional provisions 21
24. Electronic Transactions Act 2003 repealed 21
25. Acts amended 21
26. The Criminal Code amended 22
Defined Terms
page ii
Western Australia
LEGISLATIVE ASSEMBLY
Electronic Transactions Bill 2011
A Bill for
An Act to facilitate electronic transactions, to repeal the Electronic
Transactions Act 2003 and in consequence amend other Acts and for
other purposes.
The Parliament of Western Australia enacts as follows:
page 1
Electronic Transactions Bill 2011
Part 1 Preliminary
s. 1
1 Part 1 -- Preliminary
2 1. Short title
3 This is the Electronic Transactions Act 2011.
4 2. Commencement
5 This Act comes into operation as follows --
6 (a) sections 1 and 2 -- on the day on which this Act
7 receives the Royal Assent;
8 (b) section 26 --
9 (i) if the Criminal Code Amendment (Identity
10 Crime) Act 2010 section 5 (section 5) comes into
11 operation on or before the day on which
12 section 24 comes into operation -- when
13 section 24 comes into operation; or
14 (ii) otherwise -- when section 5 comes into
15 operation;
16 (c) the provisions of the Act other than sections 1, 2
17 and 26 -- on a day fixed by proclamation, and different
18 days may be fixed for different provisions.
19 3. Object
20 The object of this Act is to provide a regulatory framework
21 that --
22 (a) recognises the importance of the electronic
23 communication of information to the future economic
24 and social prosperity of Western Australia; and
25 (b) facilitates the use of electronic communication as a way
26 of entering into transactions; and
27 (c) promotes business and community confidence in the use
28 of electronic communication as a way of entering into
29 transactions; and
page 2
Electronic Transactions Bill 2011
Preliminary Part 1
s. 4
1 (d) enables business and the community to use electronic
2 communication in their dealings with government.
3 4. Simplified outline
4 (1) This section contains a simplified outline of this Act, intended
5 as a guide to the general scheme and effect of the Act.
6 (2) This Act provides --
7 (a) that, with certain exceptions, a transaction is not invalid
8 for the purposes of a law of the State because it took
9 place by electronic communication;
10 (b) that things that can or have to be done under a law of the
11 State in relation to any of the following matters can
12 generally be done by electronic communication --
13 (i) giving information in writing;
14 (ii) providing a signature;
15 (iii) producing a document;
16 (iv) recording information;
17 (v) retaining a document;
18 (c) for determining the time and place of the dispatch and
19 receipt of an electronic communication for the purposes
20 of a law of the State;
21 (d) that the purported originator of an electronic
22 communication is bound by it for the purposes of a law
23 of the State only if the communication was sent by the
24 purported originator or with the authority of the
25 purported originator.
26 (3) This Act also contains provisions applying to contracts
27 involving electronic communications, including provisions
28 (relating to the internet in particular) for the following --
29 (a) an unaddressed proposal to form a contract is to be
30 regarded as an invitation to make offers, rather than as
31 an offer that if accepted would result in a contract;
page 3
Electronic Transactions Bill 2011
Part 1 Preliminary
s. 5
1 (b) a contract formed automatically is not invalid, void or
2 unenforceable because there was no human review or
3 intervention;
4 (c) a portion of an electronic communication containing an
5 input error can be withdrawn in certain circumstances;
6 (d) the application of certain provisions of Part 2 to the
7 extent they do not apply of their own force.
8 5. Terms used and status of notes
9 (1) In this Act --
10 addressee of an electronic communication means a person who
11 is intended by the originator to receive the electronic
12 communication, but does not include a person acting as an
13 intermediary with respect to the electronic communication;
14 automated message system means a computer program or an
15 electronic or other automated means used to initiate an action or
16 respond to data messages in whole or in part, without review or
17 intervention by a natural person each time an action is initiated
18 or a response is generated by the system;
19 consent includes consent that can reasonably be inferred from
20 the conduct of the person concerned, but does not include
21 consent given subject to conditions unless the conditions are
22 complied with;
23 data includes the whole or part of a computer program within
24 the meaning of the Copyright Act 1968 (Commonwealth);
25 data storage device means any article or material (for example,
26 a disk) from which information is capable of being reproduced,
27 with or without the aid of any other article or device;
28 electronic communication means --
29 (a) a communication of information in the form of data, text
30 or images by means of guided or unguided
31 electromagnetic energy, or both; or
32 (b) a communication of information in the form of sound by
33 means of guided or unguided electromagnetic energy, or
page 4
Electronic Transactions Bill 2011
Preliminary Part 1
s. 5
1 both, where the sound is processed at its destination by
2 an automated voice recognition system;
3 information means information in the form of data, text, images
4 or sound;
5 information system means a system for generating, sending,
6 receiving, storing or otherwise processing electronic
7 communications;
8 information technology requirements includes software
9 requirements;
10 law of this jurisdiction means any law in force in this
11 jurisdiction, whether written or unwritten, but does not include a
12 law of the Commonwealth;
13 non-profit body means a body that is not carried on for the
14 purposes of profit or gain to its individual members and is, by
15 the terms of the body's constitution, prohibited from making
16 any distribution, whether in money, property or otherwise, to its
17 members;
18 originator of an electronic communication means a person by
19 whom, or on whose behalf, the electronic communication has
20 been sent or generated before storage, if any, but does not
21 include a person acting as an intermediary with respect to the
22 electronic communication;
23 performance of a contract includes non-performance of the
24 contract;
25 place of business means --
26 (a) in relation to a person, other than an entity referred to in
27 paragraph (b), a place where the person maintains a
28 non-transitory establishment to pursue an economic
29 activity other than the temporary provision of goods or
30 services out of a specific location; or
31 (b) in relation to a government, an authority of a
32 government or a non-profit body, a place where any
33 operations or activities are carried out by that
34 government, authority or body;
page 5
Electronic Transactions Bill 2011
Part 1 Preliminary
s. 6
1 this jurisdiction means Western Australia;
2 transaction includes --
3 (a) any transaction in the nature of a contract, agreement or
4 other arrangement; and
5 (b) any statement, declaration, demand, notice or request,
6 including an offer and the acceptance of an offer, that
7 the parties are required to make or choose to make in
8 connection with the formation or performance of a
9 contract, agreement or other arrangement; and
10 (c) any transaction of a non-commercial nature.
11 (2) Notes in this Act are provided to assist understanding and do not
12 form part of the Act.
13 6. Crown to be bound
14 This Act binds the Crown in right of Western Australia and, in
15 so far as the legislative power of Parliament permits, the Crown
16 in all its other capacities.
17 7. Exemptions
18 (1) The regulations may provide that all or specified provisions of
19 this Act do not apply --
20 (a) to transactions, requirements, permissions, electronic
21 communications or other matters specified, or of classes
22 specified, in the regulations for the purposes of this
23 section; or
24 (b) in circumstances specified, or of classes specified, in the
25 regulations for the purposes of this section.
26 (2) The regulations may provide that all or specified provisions of
27 this Act do not apply to specified laws of this jurisdiction.
page 6
Electronic Transactions Bill 2011
Application of legal requirements and authorisations to Part 2
electronic communications
General rule about validity of transactions for the purposes of Division 1
laws of this jurisdiction
s. 8
1 Part 2 -- Application of legal requirements and
2 authorisations to electronic communications
3 Division 1 -- General rule about validity of transactions for the
4 purposes of laws of this jurisdiction
5 8. Validity of electronic transactions
6 (1) For the purposes of a law of this jurisdiction, a transaction is not
7 invalid because it took place wholly or partly by means of one
8 or more electronic communications.
9 (2) The general rule in subsection (1) does not apply in relation to
10 the validity of a transaction to the extent to which another, more
11 specific, provision of this Part deals with the validity of the
12 transaction.
13 Division 2 -- Things done under laws of this jurisdiction
14 9. Writing
15 (1) If, under a law of this jurisdiction, a person is required to give
16 information in writing, that requirement is taken to have been
17 met if the person gives the information by means of an
18 electronic communication, where --
19 (a) at the time the information was given, it was reasonable
20 to expect that the information would be readily
21 accessible so as to be useable for subsequent reference;
22 and
23 (b) the person to whom the information is required to be
24 given consents to the information being given by means
25 of an electronic communication.
26 (2) If, under a law of this jurisdiction, a person is permitted to give
27 information in writing, the person may give the information by
28 means of an electronic communication, where --
29 (a) at the time the information was given, it was reasonable
30 to expect that the information would be readily
page 7
Electronic Transactions Bill 2011
Part 2 Application of legal requirements and authorisations to
electronic communications
Division 2 Things done under laws of this jurisdiction
s. 9
1 accessible so as to be useable for subsequent reference;
2 and
3 (b) the person to whom the information is permitted to be
4 given consents to the information being given by means
5 of an electronic communication.
6 (3) This section does not affect the operation of any other law of
7 this jurisdiction that makes provision for or in relation to
8 requiring or permitting information to be given, in accordance
9 with particular information technology requirements --
10 (a) on a particular kind of data storage device; or
11 (b) by means of a particular kind of electronic
12 communication.
13 (4) This section applies to a requirement or permission to give
14 information, whether the expression give, send or serve, or any
15 other expression, is used.
16 (5) For the purposes of this section, giving information includes,
17 but is not limited to, the following --
18 (a) making an application;
19 (b) making or lodging a claim;
20 (c) giving, sending or serving a notification;
21 (d) lodging a return;
22 (e) making a request;
23 (f) making a declaration;
24 (g) lodging or issuing a certificate;
25 (h) making, varying or cancelling an election;
26 (i) lodging an objection;
27 (j) giving a statement of reasons.
page 8
Electronic Transactions Bill 2011
Application of legal requirements and authorisations to Part 2
electronic communications
Things done under laws of this jurisdiction Division 2
s. 10
1 10. Signatures
2 (1) If, under a law of this jurisdiction, the signature of a person is
3 required, that requirement is taken to have been met in relation
4 to an electronic communication if --
5 (a) a method is used to identify the person and to indicate
6 the person's intention in respect of the information
7 communicated; and
8 (b) the method used was either --
9 (i) as reliable as appropriate for the purpose for
10 which the electronic communication was
11 generated or communicated, in the light of all the
12 circumstances, including any relevant agreement;
13 or
14 (ii) proven in fact to have fulfilled the functions
15 described in paragraph (a), by itself or together
16 with further evidence;
17 and
18 (c) the person to whom the signature is required to be given
19 consents to that requirement being met by the use of the
20 method mentioned in paragraph (a).
21 (2) This section does not affect the operation of any other law of
22 this jurisdiction that makes provision for or in relation to
23 requiring --
24 (a) an electronic communication to contain an electronic
25 signature (however described); or
26 (b) an electronic communication to contain a unique
27 identification in an electronic form; or
28 (c) a particular method to be used in relation to an
29 electronic communication to identify the originator of
30 the communication and to indicate the originator's
31 intention in respect of the information communicated.
page 9
Electronic Transactions Bill 2011
Part 2 Application of legal requirements and authorisations to
electronic communications
Division 2 Things done under laws of this jurisdiction
s. 11
1 (3) The reference in subsection (1) to a law that requires a signature
2 includes a reference to a law that provides consequences for the
3 absence of a signature.
4 11. Production of document
5 (1) If, under a law of this jurisdiction, a person is required to
6 produce a document that is in the form of paper, an article or
7 other material, that requirement is taken to have been met if the
8 person produces, by means of an electronic communication, an
9 electronic form of the document, where --
10 (a) having regard to all the relevant circumstances at the
11 time the communication was sent, the method of
12 generating the electronic form of the document provided
13 a reliable means of assuring the maintenance of the
14 integrity of the information contained in the document;
15 and
16 (b) at the time the communication was sent, it was
17 reasonable to expect that the information contained in
18 the electronic form of the document would be readily
19 accessible so as to be useable for subsequent reference;
20 and
21 (c) the person to whom the document is required to be
22 produced consents to the production, by means of an
23 electronic communication, of an electronic form of the
24 document.
25 (2) If, under a law of this jurisdiction, a person is permitted to
26 produce a document that is in the form of paper, an article or
27 other material, then, instead of producing the document in that
28 form, the person may produce, by means of an electronic
29 communication, an electronic form of the document, where --
30 (a) having regard to all the relevant circumstances at the
31 time the communication was sent, the method of
32 generating the electronic form of the document provided
33 a reliable means of assuring the maintenance of the
page 10
Electronic Transactions Bill 2011
Application of legal requirements and authorisations to Part 2
electronic communications
Things done under laws of this jurisdiction Division 2
s. 12
1 integrity of the information contained in the document;
2 and
3 (b) at the time the communication was sent, it was
4 reasonable to expect that the information contained in
5 the electronic form of the document would be readily
6 accessible so as to be useable for subsequent reference;
7 and
8 (c) the person to whom the document is permitted to be
9 produced consents to the production, by means of an
10 electronic communication, of an electronic form of the
11 document.
12 (3) For the purposes of this section, the integrity of information
13 contained in a document is maintained if, and only if, the
14 information has remained complete and unaltered, apart from --
15 (a) the addition of any endorsement; or
16 (b) any immaterial change,
17 which arises in the normal course of communication, storage or
18 display.
19 (4) This section does not affect the operation of any other law of
20 this jurisdiction that makes provision for or in relation to
21 requiring or permitting electronic forms of documents to be
22 produced, in accordance with particular information technology
23 requirements --
24 (a) on a particular kind of data storage device; or
25 (b) by means of a particular kind of electronic
26 communication.
27 12. Retention of information and documents
28 (1) If, under a law of this jurisdiction, a person is required to record
29 information in writing, that requirement is taken to have been
30 met if the person records the information in electronic form,
31 where --
32 (a) at the time of the recording of the information, it was
33 reasonable to expect that the information would be
page 11
Electronic Transactions Bill 2011
Part 2 Application of legal requirements and authorisations to
electronic communications
Division 2 Things done under laws of this jurisdiction
s. 12
1 readily accessible so as to be useable for subsequent
2 reference; and
3 (b) if the regulations require that the information be
4 recorded on a particular kind of data storage device, that
5 requirement has been met.
6 (2) If, under a law of this jurisdiction, a person is required to retain,
7 for a particular period, a document that is in the form of paper,
8 an article or other material, that requirement is taken to have
9 been met if the person retains, or causes another person to
10 retain, an electronic form of the document throughout that
11 period, where --
12 (a) having regard to all the relevant circumstances at the
13 time of the generation of the electronic form of the
14 document, the method of generating the electronic form
15 of the document provided a reliable means of assuring
16 the maintenance of the integrity of the information
17 contained in the document; and
18 (b) at the time of the generation of the electronic form of the
19 document, it was reasonable to expect that the
20 information contained in the electronic form of the
21 document would be readily accessible so as to be
22 useable for subsequent reference; and
23 (c) if the regulations require that the electronic form of the
24 document be retained on a particular kind of data
25 storage device, that requirement has been met
26 throughout that period.
27 (3) For the purposes of subsection (2), the integrity of information
28 contained in a document is maintained if, and only if, the
29 information has remained complete and unaltered, apart from --
30 (a) the addition of any endorsement; or
31 (b) any immaterial change,
32 which arises in the normal course of communication, storage or
33 display.
page 12
Electronic Transactions Bill 2011
Application of legal requirements and authorisations to Part 2
electronic communications
Things done under laws of this jurisdiction Division 2
s. 12
1 (4) If, under a law of this jurisdiction, a person (the first person) is
2 required to retain, for a particular period, information that was
3 the subject of an electronic communication, that requirement is
4 taken to have been met if the first person retains, or causes
5 another person to retain, in electronic form, the information
6 throughout that period, where --
7 (a) at the time of commencement of the retention of the
8 information, it was reasonable to expect that the
9 information would be readily accessible so as to be
10 useable for subsequent reference; and
11 (b) having regard to all the relevant circumstances at the
12 time of commencement of the retention of the
13 information, the method of retaining the information in
14 electronic form provided a reliable means of assuring
15 the maintenance of the integrity of the information
16 contained in the electronic communication; and
17 (c) throughout that period, the first person also retains, or
18 causes the other person to retain, in electronic form,
19 such additional information obtained by the first person
20 as is sufficient to enable the identification of the
21 following --
22 (i) the origin of the electronic communication;
23 (ii) the destination of the electronic communication;
24 (iii) the time when the electronic communication was
25 sent;
26 (iv) the time when the electronic communication was
27 received;
28 and
29 (d) at the time of commencement of the retention of the
30 additional information covered by paragraph (c), it was
31 reasonable to expect that the additional information
32 would be readily accessible so as to be useable for
33 subsequent reference; and
page 13
Electronic Transactions Bill 2011
Part 2 Application of legal requirements and authorisations to
electronic communications
Division 3 Other provisions relating to laws of this jurisdiction
s. 13
1 (e) if the regulations require that the information be retained
2 on a particular kind of data storage device, that
3 requirement has been met throughout that period.
4 (5) For the purposes of subsection (4), the integrity of information
5 that was the subject of an electronic communication is
6 maintained if, and only if, the information has remained
7 complete and unaltered, apart from --
8 (a) the addition of any endorsement; or
9 (b) any immaterial change,
10 which arises in the normal course of communication, storage or
11 display.
12 Division 3 -- Other provisions relating to laws of
13 this jurisdiction
14 13. Time of dispatch
15 (1) For the purposes of a law of this jurisdiction, unless otherwise
16 agreed between the originator and the addressee of an electronic
17 communication, the time of dispatch of the electronic
18 communication is --
19 (a) the time when the electronic communication leaves an
20 information system under the control of the originator or
21 of the party who sent it on behalf of the originator; or
22 (b) if the electronic communication has not left an
23 information system under the control of the originator or
24 of the party who sent it on behalf of the originator, the
25 time when the electronic communication is received by
26 the addressee.
27 Note: Paragraph (b) would apply to a case where the parties exchange
28 electronic communications through the same information system.
29 (2) Subsection (1) applies even though the place where the
30 information system supporting an electronic address is located
31 may be different from the place where the electronic
32 communication is taken to have been dispatched under
33 section 15.
page 14
Electronic Transactions Bill 2011
Application of legal requirements and authorisations to Part 2
electronic communications
Other provisions relating to laws of this jurisdiction Division 3
s. 14
1 14. Time of receipt
2 (1) For the purposes of a law of this jurisdiction, unless otherwise
3 agreed between the originator and the addressee of an electronic
4 communication --
5 (a) the time of receipt of the electronic communication is
6 the time when the electronic communication becomes
7 capable of being retrieved by the addressee at an
8 electronic address designated by the addressee; or
9 (b) the time of receipt of the electronic communication at
10 another electronic address of the addressee is the time
11 when both --
12 (i) the electronic communication has become
13 capable of being retrieved by the addressee at
14 that address; and
15 (ii) the addressee has become aware that the
16 electronic communication has been sent to that
17 address.
18 (2) For the purposes of subsection (1), unless otherwise agreed
19 between the originator and the addressee of the electronic
20 communication, it is to be assumed that the electronic
21 communication is capable of being retrieved by the addressee
22 when it reaches the addressee's electronic address.
23 (3) Subsection (1) applies even though the place where the
24 information system supporting an electronic address is located
25 may be different from the place where the electronic
26 communication is taken to have been received under section 15.
27 15. Place of dispatch and place of receipt
28 (1) For the purposes of a law of this jurisdiction, unless otherwise
29 agreed between the originator and the addressee of an electronic
30 communication --
31 (a) the electronic communication is taken to have been
32 dispatched at the place where the originator has its place
33 of business; and
page 15
Electronic Transactions Bill 2011
Part 2 Application of legal requirements and authorisations to
electronic communications
Division 3 Other provisions relating to laws of this jurisdiction
s. 15
1 (b) the electronic communication is taken to have been
2 received at the place where the addressee has its place of
3 business.
4 (2) For the purposes of the application of subsection (1) to an
5 electronic communication --
6 (a) a party's place of business is assumed to be the location
7 indicated by that party, unless another party
8 demonstrates that the party making the indication does
9 not have a place of business at that location; and
10 (b) if a party has not indicated a place of business and has
11 only one place of business, it is to be assumed that that
12 place is the party's place of business; and
13 (c) if a party has not indicated a place of business and has
14 more than one place of business, the place of business is
15 that which has the closest relationship to the underlying
16 transaction, having regard to the circumstances known
17 to or contemplated by the parties at any time before or at
18 the conclusion of the transaction; and
19 (d) if a party has not indicated a place of business and has
20 more than one place of business, but paragraph (c) does
21 not apply, it is to be assumed that the party's principal
22 place of business is the party's only place of business;
23 and
24 (e) if a party is a natural person and does not have a place of
25 business, it is to be assumed that the party's place of
26 business is the place of the party's habitual residence.
27 (3) A location is not a place of business merely because that is --
28 (a) where equipment and technology supporting an
29 information system used by a party are located; or
30 (b) where the information system may be accessed by other
31 parties.
32 (4) The sole fact that a party makes use of a domain name or
33 electronic mail address connected to a specific country does not
page 16
Electronic Transactions Bill 2011
Application of legal requirements and authorisations to Part 2
electronic communications
Other provisions relating to laws of this jurisdiction Division 3
s. 16
1 create a presumption that its place of business is located in that
2 country.
3 16. Attribution of electronic communications
4 (1) For the purposes of a law of this jurisdiction, unless otherwise
5 agreed between the purported originator and the addressee of an
6 electronic communication, the purported originator of the
7 electronic communication is bound by that communication only
8 if the communication was sent by the purported originator or
9 with the authority of the purported originator.
10 (2) Subsection (1) does not affect the operation of a law of this
11 jurisdiction that makes provision for --
12 (a) conduct engaged in by a person within the scope of the
13 person's actual or apparent authority to be attributed to
14 another person; or
15 (b) a person to be bound by conduct engaged in by another
16 person within the scope of the other person's actual or
17 apparent authority.
page 17
Electronic Transactions Bill 2011
Part 3 Additional provisions applying to contracts involving electronic
communications
s. 17
1 Part 3 -- Additional provisions applying to contracts
2 involving electronic communications
3 17. Application and operation of this Part
4 This Part applies to the use of electronic communications in
5 connection with the formation or performance of a contract
6 between parties where the proper law of the contract is (or
7 would on its formation be) the law of this jurisdiction, and so
8 applies --
9 (a) whether some or all of the parties are located within
10 Australia or elsewhere; and
11 (b) whether the contract is for business purposes, for
12 personal, family or household purposes, or for other
13 purposes.
14 18. Invitation to treat regarding contracts
15 (1) A proposal to form a contract made through one or more
16 electronic communications that --
17 (a) is not addressed to one or more specific parties; and
18 (b) is generally accessible to parties making use of
19 information systems,
20 is to be considered as an invitation to make offers, unless it
21 clearly indicates the intention of the party making the proposal
22 to be bound in case of acceptance.
23 (2) Subsection (1) extends to proposals that make use of interactive
24 applications for the placement of orders through information
25 systems.
26 19. Use of automated message systems for contract formation --
27 non-intervention of natural person
28 A contract formed by --
29 (a) the interaction of an automated message system and a
30 natural person; or
page 18
Electronic Transactions Bill 2011
Additional provisions applying to contracts involving electronic Part 3
communications
s. 20
1 (b) the interaction of automated message systems,
2 is not invalid, void or unenforceable on the sole ground that no
3 natural person reviewed or intervened in each of the individual
4 actions carried out by the automated message systems or the
5 resulting contract.
6 20. Error in electronic communications regarding contracts
7 (1) This section applies in relation to a statement, declaration,
8 demand, notice or request, including an offer and the acceptance
9 of an offer, that the parties are required to make or choose to
10 make in connection with the formation or performance of a
11 contract.
12 (2) If --
13 (a) a natural person makes an input error in an electronic
14 communication exchanged with the automated message
15 system of another party; and
16 (b) the automated message system does not provide the
17 person with an opportunity to correct the error,
18 the person, or the party on whose behalf the person was acting,
19 has the right to withdraw the portion of the electronic
20 communication in which the input error was made if --
21 (c) the person, or the party on whose behalf the person was
22 acting, notifies the other party of the error as soon as
23 possible after having learned of the error and indicates
24 that he or she made an error in the electronic
25 communication; and
26 (d) the person, or the party on whose behalf the person was
27 acting, has not used or received any material benefit or
28 value from the goods or services, if any, received from
29 the other party.
30 (3) The right of withdrawal of a portion of an electronic
31 communication under this section is not of itself a right to
32 rescind or otherwise terminate a contract.
page 19
Electronic Transactions Bill 2011
Part 3 Additional provisions applying to contracts involving electronic
communications
s. 21
1 (4) The consequences (if any) of the exercise of the right of
2 withdrawal of a portion of an electronic communication under
3 this section are to be determined in accordance with any
4 applicable rule of law.
5 Note: In some circumstances the withdrawal of a portion of an electronic
6 communication may invalidate the entire communication or render it
7 ineffective for the purposes of contract formation (see paragraph 241
8 of the UNCITRAL explanatory note for the United Nations Convention
9 on the Use of Electronic Communications in International Contracts).
10 21. Application of Act in relation to contracts
11 (1) Subject to subsection (2), the provisions of sections 8 and 13
12 to 15 apply to --
13 (a) a transaction constituted by or relating to a contract; or
14 (b) an electronic communication relating to the formation or
15 performance of a contract,
16 in the same way as they apply to a transaction or electronic
17 communication referred to in those sections, and so apply as if
18 the words "For the purposes of a law of this jurisdiction" were
19 omitted.
20 (2) However, this Part (including subsection (1)) does not apply to
21 or in relation to a contract to the extent that --
22 (a) Part 2 would of its own force have the same effect as
23 this Part if this Part applied; or
24 (b) a law of another State or Territory (that is in
25 substantially the same terms as Part 2) would of its own
26 force have the same effect as this Part if this Part
27 applied.
28 Note: This section applies provisions of Part 2 to contracts or proposed
29 contracts to the extent (if any) that those provisions do not apply
30 merely because they are expressed to apply in relation to a law of this
31 jurisdiction. This section also disapplies the provisions of Part 3 to the
32 extent that Part 2 would apply of its own force. An example where
33 Part 2 may not apply of its own force is where a contract is being
34 negotiated in a State or Territory from a supplier located overseas.
page 20
Electronic Transactions Bill 2011
Miscellaneous Part 4
s. 22
1 Part 4 -- Miscellaneous
2 22. Regulations
3 The Governor may make regulations prescribing all matters that
4 are required or permitted by this Act to be prescribed, or are
5 necessary or convenient to be prescribed for giving effect to the
6 purposes of this Act.
7 23. Transitional provisions
8 (1) Subject to subsection (2) --
9 (a) section 18 extends to proposals made before the
10 commencement day; and
11 (b) section 19 extends to actions carried out before the
12 commencement day; and
13 (c) section 20 extends to statements, declarations, demands,
14 notices or requests, including offers and the acceptance
15 of offers, made or given before the commencement day.
16 (2) Subsection (1) and Part 3 do not apply in relation to contracts
17 formed before the commencement day.
18 (3) In subsections (1) and (2) --
19 commencement day means the day of commencement of Part 3.
20 24. Electronic Transactions Act 2003 repealed
21 The Electronic Transactions Act 2003 is repealed.
22 25. Acts amended
23 (1) This section amends the Acts listed in the Table.
24 (2) Amend the provisions listed in the Table as set out in the Table.
page 21
Electronic Transactions Bill 2011
Part 4 Miscellaneous
s. 26
1 Table
Provision Delete Insert
1. Bail Act 1982
s. 3(1) def. of Electronic Electronic
electronic Transactions Transactions
communication Act 2003 section 5 Act 2011
section 5(1)
s. 3A(2) Electronic Electronic
Transactions Transactions
Act 2003 section 5 Act 2011
section 5(1)
2. The Criminal Code
s. 204B(1) def. of section 5 of the the Electronic
electronic Electronic Transactions
communication Transactions Act 2011
Act 2003 section 5(1)
3. Legal Profession Act 2008
s. 290(6)(d) Electronic Electronic
Transactions Transactions
Act 2003 section 9 Act 2011
section 10
2 26. The Criminal Code amended
3 (1) This section amends The Criminal Code (as amended by the
4 Criminal Code Amendment (Identity Crime) Act 2010
5 section 5).
page 22
Electronic Transactions Bill 2011
Miscellaneous Part 4
s. 26
1 (2) In section 489 in the definition of electronic communication
2 delete "Electronic Transactions Act 2003 section 5;" and insert:
3
4 Electronic Transactions Act 2011 section 5(1);
5
page 23
Electronic Transactions Bill 2011
Defined Terms
Defined Terms
[This is a list of terms defined and the provisions where they are defined.
The list is not part of the law.]
Defined Term Provision(s)
addressee.......................................................................................................... 5(1)
automated message system .............................................................................. 5(1)
commencement day ....................................................................................... 23(3)
consent ............................................................................................................. 5(1)
data................................................................................................................... 5(1)
data storage device........................................................................................... 5(1)
electronic communication ................................................................................ 5(1)
first person ..................................................................................................... 12(4)
give .................................................................................................................. 9(4)
giving information ........................................................................................... 9(5)
information....................................................................................................... 5(1)
information system .......................................................................................... 5(1)
information technology requirements .............................................................. 5(1)
law of this jurisdiction ..................................................................................... 5(1)
non-profit body ................................................................................................ 5(1)
originator.......................................................................................................... 5(1)
performance ..................................................................................................... 5(1)
place of business .............................................................................................. 5(1)
section 5 ................................................................................................................2
send .................................................................................................................. 9(4)
serve................................................................................................................. 9(4)
this jurisdiction ................................................................................................ 5(1)
transaction........................................................................................................ 5(1)
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