Journal of Law, Information and Science
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AARON UPCROFT
This paper is the first in a series of case studies on the implementation of the United Nations Commission on International Trade Law (UNCITRAL) Model Law on Electronic Commerce. It is a critical analysis of Australia’s regulatory approach to E-Commerce within the International framework.
The UNCITRAL Model Law represents the internationally accepted set of rules relating to electronic commerce. The purpose of the international discussion is to formulate a set of common, relevant issues for the topic. This analysis will form the basic framework upon which the domestic developments in Australia will be assessed.
In March 1998, the Electronic Commerce Expert Group to the Attorney General (ECEG) released its report, “Electronic Commerce: Building the Legal Framework”. This report is the foundation upon which legislation will be introduced and henceforth, the initial subject of discussion.
The Electronic Transactions Bill 1999 (Cth) is currently before parliament and forms an integral part of Australia’s E-Commerce strategy along with Victoria’s Electronic Commerce Framework Bill. These proposed pieces of legislation, along with other relevant Australian reports into e-commerce, will be critically analysed against the background of international developments.
Uniformity is of utmost importance if any regulatory system is to succeed in this area due to the global nature of the subject matter and the global disputes that are certain to arise. The paper will focus on the issue of uniformity of formation of regulatory systems and approaches and contain an assessment of whether Australia’s approach will contribute to the uniformity of e-commerce laws.
Like it or not, computers are the future. For who, or what, is going to stop technology? Although progressing at different rates around the globe, the digital revolution has begun. Computers are becoming more powerful every day; hence it is those who are able to most effectively harness this power who will succeed in the future.
This paper is centred on the notion of electronic commerce, or e-commerce as it has come to be known. This obviously begs the question, what exactly is electronic commerce? Well, it is not pertinent to define it exactly for it is a dynamic concept, however it refers generally to the performance of any commercial transaction via electronic means.[1] It is not necessary to limit this definition for the purpose of this paper, although the primary notion envisaged is the transactions that occur from computer to computer.
Advances in technology have produced a system of communication that transcends geographical boundaries. The potential for a truly global market exists in the world today. In a global environment however, there must exist a global system of rules or at least a method of applying many different sets of rules. These rules exist, for modern world trade has been occurring for hundreds of years. So what has changed?
Electronic commerce has not brought about the need to develop new rules or laws, for it is not the transactions that are new – it has brought about the need to adapt existing laws to account for the changes in technology, for the way in which transactions are occurring is new. In order to maximise the benefits of new technology for the purpose of promoting international trade, the United Nations Commission on International Trade Law (UNCITRAL)[2] set about developing a set of guidelines on how to amend existing laws to bring them in line with technological advances. Considering the extremely dynamic nature of the industry, the most appropriate form that laws should take was hence considered to be such that did not discriminate between different forms of technology. In 1996, the UNCITRAL Model Law on Electronic Commerce[3] was adopted and represented the culmination of this work.
In formulating the Model Law, the Commission identified a range of existing legal obstacles[4] to the use of electronic commerce. Hence, the purpose of the Model Law is to provide national legislators with a set of internationally accepted rules on how to remove these obstacles. It is a method of facilitating electronic commerce.
As the Model Law is required to be adopted into national legislation, a major part of the facilitation process falls on the shoulders of the enacting States. The purpose of this paper is to critically analyse Australia’s approach to facilitating electronic commerce, that is, their implementation of the Model Law. A specific focus of the paper is on the issue of uniformity as the Commission has identified the need for a consistent approach as fundamental to the success of electronic commerce.
The next chapter is devoted to the Model Law, whilst chapter III of this paper centres on Australia’s implementation of the instrument. Chapter IV is concerned with the uniformity issue and identifies whether Australia’s approach is consistent with the principles underpinning the Model Law. The final chapter contains some concluding remarks on the discussion.
The Commission, in response to two reports[6]
before it at its seventeenth and eighteenth sessions, recommended in 1985 that Governments and international organisations take action to promote the widespread use of automated data processing in international trade.[7] This recommendation arguably achieved little by way of progress, but marked the beginning of the Commission’s active interest in the field of electronic commerce. The Commission, as principal body dealing with international trade law, was viewed as the appropriate forum to develop and coordinate an approach. What followed in the next six years was a commitment by the Commission to follow up the 1985 Recommendation with a proposal of how to give effect to the recommendation.[8] The culmination of this work occurred in 1992[9] with an endorsement of the suggestion that the Commission undertake the preparation of a basic set of legal principles and rules governing electronic commerce.[10] The next few years saw the development of the Model Law, which was finally adopted in 1996 at the Commission’s twenty-ninth session.
It is the application of the Model Law that is the real challenge behind the facilitation of electronic commerce and hence forms the main focus of this discussion. The Commission provides an extensive amount of information in this regard and is considered below.
In formulating the Model Law, UNCITRAL had specific regard to the fact that legislation in most countries was not equipped to facilitate electronic commerce.[11] Whilst some countries invoked specific provisions relating to certain elements of electronic commerce,[12] a huge void existed when dealing with the topic generally. The purpose of the Model Law was to fill this void with a set of internationally accepted guidelines on how to remove legal obstacles to electronic commerce; to provide national legislators with the tools to create a secure legal environment in which electronic commerce can flourish.
On an international level, the objective of the Model Law is to promote efficiency in international trade, or perhaps more accurately, to overcome the legal obstacles created by inadequate national legislation or existing international instruments in relation to modern communication in order to enhance international trade.[13] Confining the subject matter to a domestic level, the objectives become more concrete. Within the overall goal of facilitating electronic commerce lies a specific foundational objective: to provide equal treatment before the law to users of electronic commerce and users of paper-based commerce. This, the Commission terms, is the “functional-equivalent” approach.[14]
The Model Law does not provide a definition of electronic commerce. It would seemingly fall outside the spirit of the instrument to do so. However, the Commission came to the resolution that, “in addressing the subject matter before it, it would have in mind a broad notion of EDI,[15] covering a variety of trade-related uses of EDI that might be referred to broadly under the rubric of ‘electronic commerce’”.[16] The Guide to Enactment accompanying the Model Law makes specific reference to the scope of Model Law extending to all communication techniques, including future developments.
Article 1[17] of the Model Law specifically refers to its sphere of application, applying to “any kind of information in the form of a data message used in the context of commercial activities”. Indication is given in footnote “****” of the Model Law as to the interpretation of “commercial”, being a wide interpretation intending to cover all relationships of a commercial nature.[18] The footnotes also allow for the extension or limitation of its applicability in other ways.[19] Article 2 contains six definitions of terms used in the Model Law. The most notable being the definition of “data message”[20] which is meant to be read in conjunction with Article 1 and to encompass all types of paperless messages that are generated, stored or communicated.[21]
Aside from specific provisions, the Guide calls for the widest possible application of the Model Law along with flexibility of implementation.[22] The Commission also regards the Model Law as an “open-ended instrument” with additions or modifications envisaged,[23] along with any regulations the enacting State decides to implement.
Article 3 of the Model Law deals expressly with how the provisions are to be interpreted by courts and other authorities, in that “regard is to be had to its international origin and the need to promote uniformity in its application and the observance of good faith”.[24] Also, Article 3(2) refers to disputes being settled in “conformity with the general principles on which this Law is based”. Guidance as to the principles intended to come within the ambit of this Article is provided by virtue of the Guide. It conceives of the following non-exhaustive list:
• To facilitate electronic commerce among and within nations;
• To validate transactions entered into by means of new information technologies;
• To promote and encourage the implementation of new information technologies;
• To promote the uniformity of law;
• To support commercial practice.[25]
The important feature of this Article is that it is not just the Model Law that is to be interpreted in accordance with these principles. The Guide stipulates that the ‘expected effect’ of this article is to limit the extent to which national or local legislation[26] is interpreted solely by reference to concepts embodied in local law. This is a clear attempt by the Commission to also ensure that the Courts of enacting States, in interpreting either legislative provisions or clauses of particular contracts, pay particular attention to the international origin of the Model Law and the principles on which it is based.[27]
The umbrella of electronic commerce covers many important issues pertaining to the digital era. The Model Law, being a law to facilitate electronic commerce, necessarily deals only with those issues that represent legal obstacles to implementation.
This issue is the fundamental principle on which the Model Law is based, the functional equivalence approach.[28] Article 5 contains a general statement that embodies this principle, that information shall not be denied legal effect, validity or enforceability solely on the grounds that it is in the form of a data message.
The Model Law only recently introduced a provision to deal with this issue.[29] The term “incorporation by reference” is used to describe the situation whereby a document or message refers to provisions which are detailed elsewhere, rather than having to reproduce them in full.[30] Examples of this in an electronic context include the use of public key certificates[31] and specifically in relation to the exchange of large numbers of electronic communications whereby each message may only contain brief information, however refer to information in previous messages. This provision also allows for the linking of documents via uniform resource locaters (URLs)[32] which provide the reader with access to the linked document. Article 5 bis provides that information shall not be denied legal effect, validity or enforceability solely on the ground that it is not contained in the data message purporting to give rise to such effect. The Guide stipulates that the principle of functional equivalence applies in relation to this Article. It is not to be construed as creating a specific legal regime for incorporation by reference in an electronic environment, rather, allowing for the rules regarding incorporation by reference in a paper-based environment to be applicable in a data-based environment.
In dealing with this issue, the Commission considered some of the many functions of ‘writings’ in a paper-based environment. In drafting Article 6 of the Model Law however, the Commission focussed on the main function of the information being reproduced and read.[33] As a result, the objective criterion of a data message being “accessible so as to be useable for subsequent reference” was developed. This allows for the functional equivalence of data-based and paper-based ‘writing’. Due to the stringent requirements of some laws, the Model Law also makes provision for exceptions to be made by any enacting state.[34]
This issue, along with the requirement for an original document, was viewed by the Commission as a major obstacle to electronic commerce as early as its eighteenth session in 1985. After considering the many functions of a signature in a paper-based environment, the Commission focussed on the two main functions: to identify the author of a document and to verify the person’s approval of the contents. These two functions are embodied in Article 7 of the Model Law, which adopts the functional equivalence principle along with a flexible approach to the level of security required.[35] It is important to note that the Commission has taken a technological neutral approach to the concept of an ‘electronic signature’,[36] allowing for any advances in technology to be accommodated.
The Commission identified that there exists a wide range of circumstances where the law may require an ‘original’ document, noting that in a paper-based environment, these documents are usually required in this form to lessen the chance of them having been altered.[37] As such, the Commission deemed the functional equivalent of an ‘original’ document for the purposes of electronic commerce to be met by a data message if:
• There exists a reliable assurance as to the integrity[38] of the information from the time it was first generated in its final form; and
• If needed to be presented, the information is capable of being displayed.[39]
Another legal obstacle to electronic commerce is the requirement for the storage of certain documents or information.[40] In overcoming this hurdle, the Commission provides for functional equivalence of data message retention as long as the following requirements are met:
• The data message satisfies the functional equivalent of ‘writing’ pursuant to Article 6;[41]
• The data message, although not required to be retained unaltered, accurately reflects the message that was generated, sent or received;[42] and
• The data message retain certain transmittal information that may be necessary to identify the message.[43]
Article 9 of the Model Law overcomes the possibility of data messages being rendered inadmissible by the rules of evidence of particular jurisdictions solely on the grounds that it is a data message[44] or because of ‘originality’.[45] It also allows for data messages to be given due evidential weight, considering all relevant circumstances.[46]
Article 11 of the Model Law allows for valid contracts to be formed via data messages. Although this principle may already exist in Articles 5, 9 and 13, the Commission deemed it necessary for those jurisdictions where some uncertainty may exist.
Article 12 of the Model Law is a specific illustration of the general principle established in Article 5. It provides that expressions of will or other statements should not be denied legal effect, validity or enforceability solely on the grounds that it is in the form of a data message.
In the case where a question arises as to whether a data message was actually sent by the person indicated as being the originator of the message, Article 13 of the Model Law provides a solution. The Article establishes a presumption that deems the message to be that of the originator, that is rebutted by the Addressee’s knowledge[47] to the contrary. The functional equivalent of this situation in a paper-based environment would be an alleged forged signature of the purported originator.[48]
In addressing this issue, the Model Law does not impose or enforce the use of acknowledgment procedures, rather, it makes provisions relating to acknowledgment if the originator uses his/her discretion to require or want it. Article 14 deals with this issue by establishing receipt of the data message, however does not address the legal consequences that may flow from such an action. This, the Commission notes, is the realm of contract law and need not be covered by the Model Law.[49]
This issue was deemed necessary due to the importance of ascertaining the time and place of receipt of information in many existing rules of law. Given the nature of communication techniques at present,[50] this issue was identified by the Commission as a difficulty and in need of attention. As a result, Article 15 of the Model Law sets out the default position that is to apply in the absence of prior agreement. Dispatch occurs when a data message enters an information system outside the control of the originator.[51] Receipt will occur:
• If the addressee has designated an information system;[52]
- when the data message enters this system; or
- if the message is sent to a different system than the one specified, receipt will occur when the addressee retrieves the message.
• If the addressee has not designated an information system;
- receipt occurs when the data message enters an information system of the addressee.
The problems associated with the place of dispatch or receipt have been solved by forming a more objective criterion than the location of information systems, the place of business of the parties.[53]
Article 4 of the Model Law is a general provision allowing parties to vary by agreement any of the above provisions relating to the communication of data messages. This is recognition by the Commission of the fact that in practice, any legal difficulties arising from the use of modern communication techniques are solved via contracts.
In framing the Model Law, the Commission envisaged a number of additions relating to specific uses of electronic commerce. Part two of the Model Law was specifically left open for the possibility of attaching any necessary provisions, in the form of additional chapters.[54] At present, there exists only one chapter in Part two and it relates to the carriage of goods.[55]
The scope of actions that are encompassed by the Model Law in this context are established in Article 16. A wide scope is provided for, including a variety of documents used in the context of carriage of goods.
In the context of transport documents, the Commission found it necessary to determine functional equivalents to not only the written information concerning the actions referred to in Article 16, but also to the performance of these actions.[56] Article 17 of the Model Law provides for these requirements to be met through the use of data messages.
The provisions contained in Section C of this paper represent the identification of specific, existing legal impediments to the facilitation of electronic commerce. The Commission has provided an extensive amount of information on how these provisions are to be both interpreted, and implemented.[57]
This paper, henceforth, represents the basis for the adoption of electronic commerce on a global scale. The rules have been made and the issues identified; now they must be applied.
Australia has commissioned many reports[58]
into electronic commerce and has come to realise the benefits it affords. Since the adoption of the Model Law in 1996 and the call for its implementation, Australia has taken significant steps to cement its future in the digital age. The Australian Government has coordinated its approach through the establishment of the National Office for the Information Economy (NOIE).[59] NOIE provides support to the Ministerial Council for the Information Economy and is responsible for the development and coordination of policy responses to the information economy.[60]
It brings together the work of a number of government departments on various aspects of electronic commerce. The process of facilitation of electronic commerce in Australia began with the work of the Electronic Commerce Expert Group (ECEG),[61] established in July 1997 to examine the legal impediments to the development of electronic commerce in Australia.
The ECEG released its report to the Attorney-General on 31 March 1998.[63]
The report considered in detail the Articles of the UNCITRAL Model Law along with relevant developments in electronic commerce in a number of overseas jurisdictions.[64]
The Expert Group, as the foundation for their approach, highlighted two important principles. The first was to achieve functional equivalence,[65] in line with the approach adopted in formulating the Model Law. The second was to ensure technological neutrality,[66] in that the law should not discriminate between different forms of technology. This too was the approach of UNCITRAL when formulating the Model Law. Under the guidance of these two principles, a series of recommendations were made to remove the existing legal obstacles to electronic commerce.
Commonwealth legislation was deemed the most appropriate course of action to implement the Expert Group’s recommendations.[67] The legislation envisaged by the Expert Group was framework legislation by which all other laws in Australia will be interpreted.[68] This form of legislation was preferred over enacting uniform State and Territory legislation[69] or amending all provisions of existing Commonwealth and State legislation that are inapplicable to electronic commerce.[70] The constitutional basis for enacting such legislation was considered by the ECEG as substantial, with the Commonwealth being able to rely primarily on the posts and telegraphs power.[71]
It was further recommended that the proposed legislation encompass the following issues:
• A broad operation, applying to communications in trade and commerce, or with the Government;[72]
• A generic principled approach to electronic signatures;[73]
• Careful consideration of exceptions;[74]
• Making provision for variation by agreement;[75]
• Functional equivalence in reference to legal requirements of writing,[76] signatures,[77] and originality;[78]
• Legal requirements for record retention;[79]
• A provision relating to data messages used in contract formation;[80]and
• Provisions relating to time and place of dispatch and receipt of data messages.[81]
As illustrated above, the majority of issues covered by the Model Law have been recommended to be included in the proposed framework legislation, with almost all provisions to be based upon the corresponding Articles of the Model Law. There are however, some notable exceptions.
In relation to the admissibility and evidential weight of data messages, the Expert Group has stated that the existing uniform Commonwealth and NSW Evidence Acts satisfy the requirements of Article 9 of the Model Law and that the other States and Territories should adopt the relevant law.[82]
In relation to the issues of attribution and message integrity, the Expert Group found that an application of Article 13 of the Model Law to Australian law would be contrary to the principle of functional equivalence.[83] As such, the report recommended the issues of attribution and message integrity be left to determination by the parties.[84]
The issue of acknowledgments as espoused in Article 14 of the Model Law was considered by the Expert Group as unnecessary to facilitate the implementation of electronic commerce at this stage.[85] The specific chapter in the Model Law[86] relating to carriage of goods was also considered unnecessary to implement in light of recent changes to the Carriage of Goods by Sea Act and the adoption of the Sea Carriage Documents Act.[87]
This report is a very comprehensive and structured examination of the issues that are pertinent to electronic commerce in Australia. It analyses the issues presented by the Model Law in depth and recommends an appropriate course of action for Australia.
The National Office for the Information Economy produced two reports in 1998 in building a strategic plan for Australia in the information economy.
In June 1998, the Ministerial Council for the Information Economy (the ‘Ministerial Council’) produced a progress report[88] on the Australian Government’s approach toward building a framework of law and regulation for the information economy. In relation to electronic commerce, the report acknowledged the need for an approach consistent with that of Australia’s major trading partners in order to avoid creating new trade barriers. The Ministerial Council noted that only minor changes are necessary to facilitate electronic commerce, broadly favouring market based solutions, industry self regulation and most importantly, consistency with agreed international positions.[89]
In July 1998, the Ministerial Council produced a second report on the information economy.[90]
This represented a preliminary statement of the Government’s policy approach in the field. The report identified national approaches to strategic issues consistent with those evolving in international fora as one of the Government’s guiding principles for Australia in the information economy.[91] The report also identifies one of its strategic priorities as the formation of a legal and regulatory framework.[92]
The Government’s strategic plan for the information economy was released in its final form in January 1999.[93]
The report basically reaffirmed the Government’s commitment to ensuring Australia maximises its opportunities in the information age. Developing a legal and regulatory framework to facilitate electronic commerce was again identified as a priority for action,[94] maintaining its previous position. Further note was made of consultation between the States and Territories[95] acknowledging the undesirable position of a patchwork of regulation.
A significant part of the Government’s strategic framework for the information economy is the proposed national uniform legislative scheme to facilitate the removal of legal obstacles to electronic commerce. The scheme will see the introduction of legislation into all States and Territories,[96] with all legislation to be based upon the first component of the scheme, the Commonwealth’s Electronic Transactions Bill 1999.
This Bill is the product of recommendations made by the ECEG in their report to the Attorney General. As such, the Bill should represent the comprehensive framework legislation called for by the Expert Group. It is intended that the Bill operate as an interpretation style law, creating a light handed regulatory regime.[98]
The Bill centres around two fundamental principles: functional equivalence and technology neutrality.[99] It is pleasing to see that Australia has used these principles as the basis for their legislation for they are the precise motifs underpinning the Model Law. Clause 8 of the Bill contains a general rule relating to functional equivalence, however the principles shine through in almost all clauses, the only qualification being when communicating with a Commonwealth entity.[100]
In terms of scope, the Bill will seemingly have a wide operation, applying to all forms of data[101] messages. However, an enormous limiting factor upon the operation of the Bill is clause 5(2). This clause states that the Bill will only apply to those laws specified in the regulations prior to 1 July 2001. The reason given for this is to allow Commonwealth Departments and agencies to put the necessary systems into place and to allow the States and Territories to enact their components of the scheme.[102] This time period seems very excessive and can only impact adversely on Australian businesses.[103]
The provisions of the Bill adhere closely to the recommendations of the Expert Group, using the articles of the Model Law, where appropriate, as a foundation. The Bill addresses the following issues in relation to electronic communication:
• Legal recognition of electronic communications;[104]
• Requirements under laws of the Commonwealth for writing,[105] signatures,[106] production of documents,[107] record retention;[108]
• Provision for exemptions[109] and variation by agreement;[110]
• Provisions relating to time and place of dispatch and receipt of electronic communications;[111]
• Provision for attribution of electronic communications;[112]
• Power to make Regulations.[113]
In general terms, it is important to note that both the Model Law and hence this Bill have introduced a new range of phrases or legal ‘tests’ that will need to be interpreted by Courts around the globe. Non-prescriptive and technically neutral terms are necessary in such a fast moving industry, however the down side to this is a considerable lack of certainty in application. Terms like “reliable”, “accessible” and “useable” will require judicial interpretation and it seems, a good deal of market intervention to define what they mean. Whilst this global uncertainty is inevitable with such an approach, it is important to identify that these problems will arise.
There is one specific clause in the Bill that may produce an undesirable effect and needs attention from the government. In relation to the time of receipt[114] of an electronic communication, users who opt to use e-mail communication will be deemed to have received a data message once it has reached their Internet Service Provider (ISP). On the other hand, users who do not specifically designate an e-mail address to receive messages, but are sent messages anyway, are deemed to have received them when the “communication comes to the attention of the recipient”. This is a far less stringent test and should perhaps be used as the default position. However, an example of a possible undesirable application of this clause is as follows:
Say, for instance, a person opts to receive communications from Centrelink[115] via e-mail. He/she would have to specify their e-mail address and hence would have “designated an information system” pursuant to cl.14(3).[116] Having done this, a message sent to this person from Centrelink will be deemed to have been received when it “enters that information system”. Now technically, this will occur when the message arrives at the address and is stored on the hard drive of the ISP not when the person connects to the ISP to check their messages. The possible time difference here would have an indefinite range, however would often amount to a matter of days. Now considering the fact that a high percentage of Centrelink communications are time-sensitive,[117] this may result in the cessation of the person’s benefit.
The question that arises then is, does this clause represent the law in Australia at present, hence merely conforming to the principle of functional equivalence? The ECEG considered this issue however came to the conclusion that it is “unclear from the cases whether a data message will be considered to be received when the message is available for the recipient to read it”.[118] Now this may be an oversight by the legislature, or perhaps they have taken it upon themselves to decide this issue; in either case, this clause may produce some very unsatisfactory results and requires immediate attention.
The ECEG specifically warned against the approach of enacting uniform State and Territory legislation due to the very real possibility of ending up with a patchwork of regulation, along with the amount of time it would take to enact legislation in nine jurisdictions.[119] The Commonwealth, it seems, has abandoned this recommendation of the Expert Group and one of the above possibilities will become a reality if the Bill is enacted. The operation of the Bill has been limited to specific Commonwealth laws for a period in excess of two years to allow for the implementation of this approach. These factors may significantly disadvantage Australia in global markets, especially if there is a further degree of uncertainty in the uniformity of Australia’s laws.
A more specific criticism of the Bill is that it does not represent the product of excellent drafting. The Bill contains many long, complex clauses that do not seem to be necessary. The expression is far from clear and severely lacking brevity. A prime example of this is the division between requirements and permissions that is maintained throughout the Bill. It is a credit that these categories have been specifically included in the Bill,[120] yet this does not call for the almost identical reproduction of convoluted clauses solely to express the difference.
The State of Victoria realised the need for legislation to facilitate electronic commerce and in the absence of suitable Commonwealth legislation in the area,[122] took significant steps to ensure the citizens of its State would not be deprived. The Electronic Business Framework Group (EBFG) was formed in May 1997 to recommend whether Victoria should enact legislation, along with the form it should take.[123]
After extensive work by the EBFG in this area, a recommendation was made to introduce minimalist framework legislation to facilitate electronic commerce. In July 1998, a discussion paper[124] was released for comment on the proposed Bill that outlined the Government’s intentions and in December 1998, Electronic Commerce Framework Bill was introduced into Victorian parliament.
This Bill preceded the Commonwealth Electronic Transactions Bill and hence the future of this Bill is unknown. Along with Victoria’s allusion to “vacating the field” should Commonwealth legislation be enacted, the explanatory paper to the Electronic Transactions Bill 1999 makes specific reference to the State and Territory legislation mirroring the national approach. Hence, whether Victoria will proceed with this Bill as it stands is not known at this stage. That aside, this Bill provides a convenient comparison for the Commonwealth Bill as it too has been based on the UNCITRAL Model Law.
The Bill[125] is not as extensive as its Commonwealth counterpart in that it only deals with the issues of legal requirements for writing, signatures and delivery. The relevant aspects of each of the provisions in the Bill are considered below:
Writing: Clause 6 of the Bill permits writing in electronic form as long as that form permits “retention of the writing for subsequent reference”. Whilst no indication is given in the discussion paper as to the reason for different wording to that of the Model Law, this formulation adopts a consistent approach in identifying the notion of the information being able to be reproduced and read.
Signatures: An “electronic signature” is defined in the Bill to be the result of a process applied to an electronic document which both authenticates the document and acknowledges that the document is being signed. This formulation encompasses the two focal points of the determination in the Model Law, that of identifying the author and indicating his/her approval of the contents. The element of reliability that is present within the Model Law and the Electronic Transactions Bill however is not contained in this formulation. The question of what would constitute a reliable standard of authentication was identified in the discussion paper[126]as a problem, the solution of which the Victorian Government believes lies in the utilisation of industry codes of practice.
Delivery: Clause 7 of the Bill dealing with the delivery of documents includes aspects of ‘giving information’ as espoused in cl.9(4) of the Electronic Transactions Bill and the attribution of communications as espoused in cl.15 of the Electronic Transactions Bill.[127]
Variation by agreement: This Bill addresses each of the above issues by way of default rules. As such, the stated rules only apply in the absence of prior agreement between the parties.
Exclusions: Specific exclusion of certain laws is provided for in Clause 8 of the Bill along with the general Regulation making power under clause 10.
A significant comparison[128] to be made between the two Australian Bills is the drafting. The Victorian Bill is expressed in a clear, concise manner. It includes the distinction between requirements and permissions within each clause without a loss of precision. There is no ambiguity and the intent of the legislature is unequivocal. The Commonwealth Government should have paid more attention to the wording of this Bill and imported some of the language into the Electronic Transactions Bill 1999.
It is obvious that the Government of Australia views the facilitation of electronic commerce as an important step in securing a leading position within global markets. Their approach to electronic commerce has been thoughtful and comprehensive and has resulted in two proposed pieces of legislation aimed at implementing the Model Law.
The question that remains to be answered is whether Australia has conformed to Article 3 of the Model Law and promoted uniformity in its application.
In order to create a truly global marketplace for individuals as well as corporations, confidence in the system of laws that govern it is a necessity. If there is no confidence in the system, the market will not achieve its full potential. The main contributor to the confidence in any system of rules is consistency. For if there is a consistent application of the rules of a particular system, a degree of confidence will inherently be instilled in the system.
The Commission has identified the issue of uniformity as of major importance to the success of electronic commerce. It is one of the primary reasons for the development of the Model Law.
Article 3 of the Model Law cements the approach of the Commission. It states:
• In the interpretation of this Law, regard is to be had to its international origin and to the need to promote uniformity in its application and the observance of good faith; furthermore,
• Questions concerning matters governed by this Law which are not expressly settled in it are to be settled in conformity with the general principles on which this Law is based.[129]
Australia has consistently maintained in-principle support for the recognition of the necessity of a uniform approach to electronic commerce. This recognition began with the report of the ECEG and was followed up by further reports of the NOIE.
The ECEG Report was the product of a comprehensive examination of the issues affecting the facilitation of electronic commerce in Australia. The Model Law provided the foundation for this discussion, hence the specific provisions and the principles on which it was based were thoroughly considered. In accordance with these principles, one of the specific recommendations of the ECEG identified the importance of adhering to the principles of the Model Law to ensure an internationally coordinated approach.[130] Consideration was also given to the issue of uniformity on a national level, with the recommendation of enacting comprehensive Commonwealth legislation in order to avoid the possibility of a patchwork of regulation within Australia.
Each of the three reports produced by the NOIE highlighted the need for consistency with agreed international positions in relation to e-commerce in order to avoid creating new trade barriers. In fact, it was affirmed as one of the guiding principles in Australia’s approach. Australia’s strategic plan for the information economy, released in January of this year, also highlighted the need for internal consistency; that is, to ensure that the different jurisdictions within the country conform to an agreed position.
In furtherance of their support for a uniform approach to electronic commerce, Australia has entered into various forms of agreements with other countries. These agreements are indicative of Australia’s committed approach to promote the furtherance of global electronic commerce.
In late 1998, Australia and the United States entered into a bilateral agreement on electronic commerce.[131]
The agreement confirmed a coordinated approach to key areas of electronic commerce between the two countries. This includes the close cooperation in international arenas to promote global e-commerce and facilitating a transparent and consistent legal framework.[132]
On 22 February 1999, Australia signed a MoU on Information Technology with the Singapore Government.[133]
The terms of this agreement include the cooperation between Australia and Singapore on electronic commerce issues to:
• Accelerate the development of e-commerce in both countries;
• Contribute to the development of minimalist regulatory frameworks;[134]and
• Establish a coherent model for the collection of e-commerce statistics.
In a media release in June 1998, Senator Richard Alston[135] indicated that Australia and Malaysia would consult and cooperate on a range of electronic commerce issues.[136]
Whilst not in the form of a written agreement, the two countries have given their verbal approval for cooperation.
Australia has currently produced two pieces of proposed legislation to facilitate electronic commerce. Having examined the provisions of the Model Law[137] and these two Bills,[138] some comments will be made about whether Australia has in fact followed through with its commitment to ensure uniformity.
On a general level, this Bill conforms to all the principles underpinning the Model Law. It is a light-handed, minimalist framework centred on achieving functional equivalence between paper-based and data-based transactions. The Bill is technologically neutral and contains provisions on almost all of the issues covered by the Model Law.[139]
More specifically, the wording of the Bill adopts either the exact wording of the Model Law[140] or a very close equivalent.[141] Hence, this Bill represents the product of very close adherence to the Model Law.
On a general level, this Bill also conforms to the principles of the Model Law. It is a minimalist piece of framework legislation that is technologically neutral and strives for functional equivalence between paper-based and data-based transactions.
On a more specific level however, this Bill may produce some inconsistencies. When considering the issue of ‘writing’, electronic form of writing is permitted where the electronic form is such that permits “retention of the writing for subsequent reference”.[143] This is compared to the phrase in the Model Law[144] and in the Electronic Transactions Bill[145] of the message being “accessible so as to be useable for subsequent reference”. Whilst it may be argued that “retention” and “accessible so as to be useable” have the same meaning, the usage of a different test would, in the least, create a degree of uncertainty. In relation to signatures, the formulation in this Bill does not include the notion of the method being as ‘reliable as was appropriate” for the purpose for which the message was being communicated that exists in the relevant sections of the Model Law[146] and the Electronic Transactions Bill.[147] Whilst the ‘reliability’ element may be deemed to be an implicit requirement of the Victorian formulation, this also creates a degree of uncertainty.
The ECEG and the NOIE specifically highlighted the need for an internally uniform approach to electronic commerce. The ECEG proposed the enactment of uniform Commonwealth laws in this regard and whilst the constitutional power to do this was somewhat uncertain, the Expert Group thought it possible. The Government of Australia has not adopted this position however,[148] deciding on uniform State and Territory legislation that is based on the Commonwealth Bill. To avoid the possibility of internal inconsistency, the Government has obtained the support of the States and Territories[149] to ensure a consistent approach is achieved.
However, the two Bills in Australia at present contain minor inconsistencies. In principle, the Bills adopt the same approach, but some specific provisions in the Victorian Bill contain slightly different legal tests than those used in the Commonwealth Bill. Regard must be had however, to the fact that the Victorian Bill preceded the Commonwealth Bill and hence may very well be amended to fall in line with the Commonwealth. Yet it must also be remembered that seven more jurisdictions in Australia remain to enact similar laws. The opportunities for an inconsistent Australian approach are great.
Having considered the approach of only one country, the difficulties in achieving uniformity are beginning to emerge. To attain a truly uniform approach on an international level, not only must the principles of the Model Law be adhered to, but the phraseology of the Commission should be adopted as much as possible. Minor changes to the legal tests contained within certain sections of the Model Law can only lead to uncertainty.
That aside, only a certain degree of uniformity can be expected. Each country contains its own laws and the implementation of the Model Law is to suit the needs of each particular country. As a result, global functional equivalence may be attained, yet there may well exist quite a few differences in specific provisions.
The Model Law on Electronic Commerce represents the culmination of ten years of work on the topic by the Commission. It is an innovative and insightful instrument. It serves as a platform on which the future of electronic commerce is to be built. Its guiding principles provide a stable foundation for this platform and will hopefully ensure that it will stand the test of time.
It is important to realise however, that the Model Law will only be as good as its daughter instruments; that is, it will only be as good as the national/state legislation that is based on it. The real challenge behind electronic commerce is beginning to unfold – implementing the Model Law.
Having detailed the Australian attempt at implementation, what can be said of their efforts? Firstly, Australia should be commended for the active role it has taken in the international arena on this topic. The various international agreements that Australia has entered into are indicative of its awareness of the need for uniformity of application and its desire to achieve consistency.
Secondly, it should also be commended for it extensive interest in, and analysis of, this field. The ECEG Report represents Australia’s commitment to facilitating electronic commerce. It was a very comprehensive examination of the issues that are pertinent to electronic commerce in Australia and illustrated a detailed understanding of the issues raised by the Model Law. The Australian Government has also commissioned other reports into the many facets of electronic commerce, an approach that will only but benefit it and the international community.
Thirdly, in relation to the proposed pieces of legislation, the commendation is almost as high. The Commonwealth and Victorian Bills have both adhered quite closely to the principles on which the Model Law is based. The Bills do however, highlight some problems that will occur when legislation is adopted around the globe. Minor differences in phraseology may lead to a degree of uncertainty in application. Also, these differences may render the case law of other jurisdictions virtually useless.
A global approach to electronic commerce is highly desirable and also very achievable if the other countries of the world illustrate the same understanding and enthusiasm as Australia.
[1] A common example is the purchase of anything (ie. books, T-shirts, computer products) over the Internet.
[2] Any references in this paper to ‘the Commission’ are references to the United Nations Commission on International Trade Law.
[3] Any references in this paper to the ‘Model Law’ are references to the UNCITRAL Model Law on Electronic Commerce.
[4] Such as the requirement in certain laws for a document to be signed, or to be in writing.
[5] The Model Law is contained in Annexure A.
[6] At its seventeenth session, the Commission considered a report of the Secretary General entitled “Legal aspects of automated data processing”. At its eighteenth session, the Commission considered a report by the Secretariat entitled “Legal value of computer records”. See Guide to Enactment of the UNCITRAL Model Law on Electronic Commerce (1996) (the ‘Guide’). Paras. 125,126. Available at http://www.uncitral.org/en-index.htm (Last accessed 26 June 1999).
[7] Para.127 of the Guide.
[8] This was, in part, due to a suggestion by the Norwegian Committee on Trade Procedures (NORPRO) that one reason for the lack of progress was due to inadequate procedures on how to implement the Recommendation. See para. 128 of the Guide.
[9] At the Commission’s twenty-fifth session.
[10] The Working Group on Electronic Data Interchange (formerly the Working Group on International Payments, now the Working Group on Electronic Commerce) was given this responsibility. See para. 137 of the Guide.
[11] See para. 3 of the Guide.
[12] This approach was considered undesirable due to the uncertainty of the validity and application of such provisions. Having such provisions with no basis upon which to apply them assisted in highlighting the need for the Model Law.
[13] See paras. 4-5 of the Guide.
[14] See paras. 6,15-18 of the Guide.
[15] Electronic Data Interchange. It is a standard used to transmit systematically structured electronic data (eg. Orders, invoices, bills. etc.) between computers.
[16] See para. 7 of the Guide.
[17] Any reference to an ‘Article’ in this paper is a reference to an Article of the Model Law on Electronic Commerce.
[18] The Guide indicates that footnote **** may be particularly useful for enacting States which do not have a discrete body of commercial law as the guidelines are modelled on the footnote to Article 1 of the UNCITRAL Model Law on International Commercial Arbitration. Consistency is the basis for this approach. See para. 25 of the Guide.
[19] For example: footnote * provides an example whereby enacting States may wish to limit the applicability to international cases (although it cautions against this approach); footnote *** provides alternative wording for enacting States wishing to extend the applicability beyond the commercial realm.
[20] Article 2(a).
[21] See paras. 24, 30-32 of the Guide.
[22] The Model Law can be implemented in whole, in part, or in separate pieces of legislation. See paras. 8-10, 29, 143.
[23] An addition has already been made, inserting Article 5 bis. in June 1998.
[24] Article 3(1).
[25] See para. 43 of the Guide.
[26] That is, legislation that is based upon or has incorporated the provisions of the Model Law.
[27] See paras. 41-42 of the Guide.
[28] As outlined above in Section B.
[29] Article 5 bis. was adopted by the Commission at its thirty-first session, in June 1998.
[30] See para. 46-1 of the Guide.
[31] These are an essential part of a form of cryptography used to identify the sender of a message and/or validate the contents of a message. In practice, a Certification Authority that issues such certificates is likely to require the inclusion of certain contractual terms that limit its liability. See para. 46-3 of the Guide.
[32] They are a standard used to specify the location of an object that forms part of the World Wide Web on the Internet.
[33] As such, the Commission noted that this Article does not establish a requirement that data messages are to satisfy all the functions of a ‘writing’. See paras. 47-52 of the Guide.
[34] Article 6(3). The Guide specifically warns against blanket exceptions though (paras. 51-52).
[35] Article 7(1)(b) requires the ‘signature’ to be “as reliable as was appropriate for the purpose for which the data message was generated or communicated, in light of all the circumstances”.
[36] Article 7 refers to a signature as a ‘method’ used to identify the author and indicate his/her approval of the contents of the message. It does not specify any technical requirements for the ‘method’.
[37] See paras. 62-63 of the Guide.
[38] The integrity of a data message will not have been compromised as long as the contents of the data remain complete and unaltered, excepting necessary additions such as endorsements, certifications, notarisations etc. Examples of a necessary addition would be the data that is automatically added to the start and finish of a data message in order to send it, or an electronic signature that is added to the message in order to authenticate it. See para.67 of the Guide.
[39] These requirements are embodied in Article 8 of the Model Law.
[40] For example, record keeping for accounting or tax purposes.
[41] Article 10(1)(a) of the Model Law.
[42] Article 10(1)(b) of the Model Law.
[43] Article 10(1)(c) of the Model Law. The Commission identifies the possibility that this will impose a higher standard for retention than most national laws regarding paper-based transactions, however includes the qualification that only some important transmittal information need be retained with other information exempted (as long as the integrity of the message is not compromised). See paras. 72-75 of the Guide.
[44] Article 9(1)(a).
[45] This provision is in relation to the case where the data message “is the best evidence that the person adducing it could reasonably be expected to obtain”. See Article 9(1)(b).
[46] Article 9(2).
[47] This knowledge requirement includes actual knowledge or the case where the Addressee ought to have known.
[48] See paras. 83-92 of the Guide.
[49] See paras. 93-99 of the Guide.
[50] As in electronic communication, the location of information systems is often subject to change or not known.
[51] Or of the person who sent the message on behalf of the originator. Article 15(1).
[52] For the purpose of receiving data messages.
[53] Hence, unless otherwise agreed, messages will be deemed to have been dispatched at the place of business of the originator and received at the place of business of the addressee.
[54] See paras. 108-109 of the Guide.
[55] The carriage of goods was viewed by the Commission as the primary context in which electronic communications would most likely be used at present and hence in which a legal framework was necessary.
[56] That is, where the performance of the actions involved the use of paper documents. For instance, in the endorsement and transfer of a bill of lading. See paras. 113-121 of the Guide.
[57] By way of the Guide.
[58] See for instance: the report of the Information Industries Taskforce, “The Global Information Economy: The Way Ahead”; and two reports prepared by the Department of Foreign Affairs and Trade, “Driving Forces on the New Silk Road” and “Creating a Clearway on the New Silk Road”, available at http://www.dfat.gov.au/nsr/ (Last accessed 26 June 1999).
[59] NOIE is responsible to the Minister for Communications, the Information Economy and the Arts.
[60] It is also responsible to represent Australia in relevant international fora on electronic commerce issues. See generally, the report by the Ministerial Council for the Information Economy. “Building the Information Economy”. June 1998, available at http://www.noie.gov.au (Last accessed 26 June 1999).
[61] The ECEG was appointed by the Attorney-General.
[62] Any references in this Section to the ‘Report’ are references to the ECEG Report.
[63] “Electronic Commerce: Building the Legal Framework”. Report of the ECEG to the Attorney-General. March 1998. Available at http://www.law.gov.au/aghome/advisory/eceg/Welcome.html (Last accessed 26 June 1999).
[64] These included the draft Uniform Electronic Transactions Act (the ‘Uniform Act’) being prepared by the US National Conference of Commissioners on Uniform State Laws; the draft Illinois Electronic Commerce Security Act; the draft Massachusetts Electronic Records and Signatures Act; along with other initiatives in Denmark, Italy and Singapore. See paras. 2.0.7 - 2.0.12.
[65] This was also embodied in Recommendation 5 of the Report.
[66] This was also embodied in Recommendation 4 of the Report.
[67] Recommendation 1. The other options considered were the encouragement of the use of contracts to resolve the issues, or to let the courts apply existing laws to the new technologies. See paras. 4.2.1 - 4.2.7 of the Report.
[68] Recommendation 3.
[69] The main reasons for recommending against this approach were the time frame necessary to enact State and Territory legislation, the possibility of a patchwork of regulation and hence the possibility of a regime that is not uniform. See paras. 4.4.6 – 4.4.11 of the Report.
[70] This approach was not preferred due to the extensive amount of work involved.
[71] Section 51(v) of the Constitution. Many other powers of the Commonwealth under the Constitution were viewed as relevant including ss 51(xiii) banking; 51(xiv) insurance; 51(xvii) bankruptcy and insolvency; 51(xx) corporations; 51(xxix) external affairs; 51(xxxix) incidentals; 92 interstate trade; and 122 territories power. See paras. 4.4.12 – 4.4.13 of the Report.
[72] Recommendation 4.
[73] Recommendation 2. As embodied in Article 7 of the Model Law. The Report recommends a non-prescriptive approach in dealing with the issue of electronic signatures as references to specific types of signatures or technologies, epitomised by the Utah Digital Signature Act, were viewed as undesirable and contrary to the principle of technology neutrality.
[74] Recommendation 4. The Report called for further consideration in this area, however, specific exceptions were deemed to be more desirable than a general exception. The inclusion of exceptions in Regulations was considered, however viewed cautiously due to its possible inappropriate nature.
[75] Ibid. The report highlights the distinction in the Model Law between the mandatory rules (Articles 5-10 of the Model Law) and the default rules that operate in the absence of agreement (Articles 11-15). The report highlights the importance of maintaining this distinction and favours the balance struck by the Model Law.
[76] Recommendation 6. The report recommends the adoption of the test used in Article 6 of the Model Law, for information to be “accessible so as to be useable for subsequent reference”.
[77] Recommendation 7. Id. No16.
[78] Recommendation 8. The report highlights the concept of information integrity as central to the requirement(s) for original documents in existing law and views Article 8 of the Model Law as an appropriate basis upon which functional equivalence can be determined.
[79] Recommendation 10. The report highlights the need for a provision relating to electronic records fulfilling record retention requirements of existing laws. In this vein, Article 10 of the Model Law was viewed as an appropriate model for such a provision.
[80] It was envisaged the general statement of principle in Article 11 of the Model Law should be used as a basis for this provision. Recommendation 11.
[81] Recommendation 14. Section 402 of the draft Uniform Act was preferred over Article 15 of the Model Law when dealing with time of receipt. The formulation of at first instance, the recipient’s ability to retrieve the information and, as a secondary position, on the information coming to the attention of the recipient, was viewed as a simpler position. Elsewhere, Article 15 of the Model Law was viewed as an appropriate basis. See paras. 4.5.84 – 4.5.90 of the Report.
[82] Recommendation 9. The Report noted that Tasmania, Victoria and Western Australia are considering adopting the uniform evidence laws.
[83] For example: paragraph 2(b) would expand existing agency laws, leaving originators of data messages in a worse position than originators of paper-based messages; and paragraph 5 would place addressees of electronically signed data messages in a better position than addressees of manually signed paper-based messages in relation to attribution of message integrity.
[84] Recommendation 12. The recommendation also provided for enactment of default provisions stating that in absence of any agreement, the attribution of a data message to be that of the originator will only occur if in fact the data message was sent by that person (or with their authority). The onus resting upon the addressee. Also, see note 28 below.
[85] Recommendation 13. The Expert Group are of the opinion that Articles 13 and 14 of the Model Law are not consistent with the Model Law’s approach of facilitating electronic commerce. The report notes that these Articles do not remove any existing legislative barriers and as such, are not necessary at this early stage.
[86] Part Two. Chapter I.
[87] Recommendation 15.
[88] Id. No4.
[89] Ibid.
[90] Ministerial Council for the Information Economy. “Towards an Australian Strategy for the Information Economy”. July 1998. Available at http://www.noie.gov.au (Last accessed 26 June 1999).
[91] Ibid.
[92] This is, however, number eight in a list of ten priorities.
[93] “A Strategic Framework for the Information Economy – Identifying priorities for action”. December 1998. Available at http://www.noie.gov.au (Last accessed 26 June 1999).
[94] Now rated as priority number five.
[95] Through the Standing Committee of Attorneys-General (SCAG).
[96] This scheme represents an approach not favoured by the ECEG. This issue is discussed further in Part IV.
[97] This Bill is contained in Annexure B.
[98] Explanatory Paper, Draft Electronic Transactions Bill 1999.
Available at
http://www.law.gov.au/publications/ecommerce/Welcome.html (Last accessed 26 June 1999).
[99] These terms have been described above in Part II and are used in the same context here.
[100] Under cl. 9 and 11, a Commonwealth entity may require particular software requirements to be met.
[101] “Data” is defined to include the definition of computer program within the meaning of the Copyright Act 1968. This encompasses a very wide class of messages.
[102] Id. No 41.
[103] This issue is discussed further below.
[104] Clause 8 of the Bill is a default provision expressing the fundamental principle of functional equivalence. It has been modelled on Article 5 of the Model Law, providing that a transaction cannot be rendered invalid merely because it took place by one or more electronic communications.
[105] Clause 9 of the Bill allows for an electronic communication to satisfy a legal requirement or permission for information to be in writing. This clause adopts the same test used in Article 6 of the Model Law, the information being “accessible so as to be useable for subsequent reference”.
[106] Clause 10 of the Bill which deals with electronic signatures imports almost the exact wording of Article 7 of the Model Law. The same, non-prescriptive, technologically neutral approach has been adopted, allowing for any advances in the area.
[107] Clause 11 of the Bill deals with circumstances where existing law requires the production of documents. It provides that an electronic form of a document is sufficient as long as the electronic document satisfies the “readily accessible…” requirement for ‘writing’ (under clause 9) and there is a reliable assurance as to the integrity of the information (similar to Article 8 of the Model Law). It is based on Article 8 of the Model Law that focuses on the requirement for an original document or for the production of an original document. This concept of an ‘original’ document was not seen as appropriate in the Commonwealth context however (See Explanatory Memorandum).
[108] Clause 12 of the Bill makes provision for the electronic recording of information, documents and communications. The specifics are similar in content to Article 10 of the Model Law needing the satisfaction of the “readily accessible” requirement of writing (clause 9); a reliable assurance as to the integrity of the information (clause 11) and the retention of certain transmittal information.
[109] Clause 13 of the Bill allows for certain requirements, permissions, laws of the commonwealth or rules of Court to be exempted from the application of clauses 9-12. This is supplemented by the general power to make exemptions in the Regulations (see note 56).
[110] The Bill allows for parties to a transaction to agree to a variation of the default provisions relating to time and place of dispatch and receipt of communications (clause 14; see note 54) and the default provisions relating to the attribution of communications (clause 15; see note 55). There is not however, a general provision dealing with variation by agreement.
[111] Clause 14 of the Bill provides a number of default rules that apply in the absence of prior agreement between the parties. They are framed on the provisions contained in Article 15 of the Model Law.
[112] Clause 15 of the Bill operates to bind the purported sender of an electronic communication to that communication if in fact it was sent by that person or with their authority. This is also a default position that only operates in absence of prior agreement.
[113] The Regulations will be used to prescribe specific transactions or laws that will not be subject to the Act, along with any other necessary matters. See cl.16.
[114] See cl.14(3)-(4).
[115] This is the Federal Government service provider. A main function is the provision of social security entitlements.
[116] There is no question of whether an e-mail address comes within the definition of an ‘information system’.
[117] In that a response is required within a specified time period.
[118] Id. No. 26. Para. 2.15.15
[119] The Commonwealth and all States and Territories.
[120] The Model Law only deals with requirements.
[121] This is contained in Annexure C (except for Part 3 on Computer Crimes).
[122] The Victorian Government has alluded to “vacating the field” should suitable Commonwealth legislation be enacted.
[123] See the Discussion Paper, “Promoting Electronic Business: Electronic Commerce Framework Bill”, July 1998. Available at http://www.mmv.vic.gov.au (Last accessed 26 June 1999).
[124] ibid.
[125] Leaving aside Part 3 on Computer Crimes.
[126] Id. No 67.
[127] The issue of delivery of documents, although similar to where a law requires production of a document, was not considered by the Model Law.
[128] Apart from the differences in content.
[129] As outlined in chapter II of this paper, one of the general principles upon which the Model Law is based is to promote the uniformity of law.
[130] Recommendation 16.
[131] “Australia-United States Joint Statement on E-Commerce”. Available at http://www.noie.gov.au (Last accessed 26 June 1999).
[132] ibid.
[133] Memorandum of Understanding between the Government of Australia and the Government of Singapore on Cooperation in Information and Communications Technology. 1998.
Available at
http://www.dfat.gov.au/ma/infotech/aus_sing_it_mou.html
(Last accessed 26 June 1999).
[134] In order to build confidence in electronic commerce and provide certainty.
[135] Minister for Communications, the Information Economy and the Arts.
[136] “Australia-Malaysia cooperation in E-Commerce”. Media Release. 9 June 1998.
Available at http://www.dca.gov.au/graphics_welcome (Last accessed 26 June 1999).
[137] Part II.
[138] Part III.
[139] The issues that have not been covered were either not necessary in Australia or were recommended to not be included by the ECEG.
[140] In relation to the legal tests contained within the provisions. See, for instance, clause 10 of the Bill dealing with electronic signatures. (cf. Article 7 of the Model Law).
[141] See, for instance, clause 9 of the Bill that deals with writing (cf. Article 6 of the Model Law); or clause 12 dealing with record retention (cf. Article 10 of the Model Law).
[142] It is important to note that this Bill may be changed or discarded due to it preceding the Commonwealth Bill, hence any comments made are in relation to its present form.
[143] Clause 6.
[144] Article 6.
[145] Clause 9.
[146] Article 7(1)(b).
[147] Clause 10(b).
[148] The Government is obviously of the opinion that they do not have the Constitutional power to enact comprehensive national legislation in this area.
[149] Through the Standing Committee of Attorneys-General (SCAG).
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