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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Electronic Transactions (Miscellaneous) Amendment
Bill 2011
A BILL FOR
An Act to amend the Electronic
Transactions Act 2000.
Contents
Part 1—Preliminary
1Short title
2Commencement
3Amendment
provisions
Part 2—Amendment of Electronic
Transactions Act 2000
4Amendment of section
4—Simplified outline
5Amendment of section
5—Interpretation
6Insertion of section
6A
6AExemptions
7Amendment of
section 7—Validity of electronic transactions
8Amendment of
section 9—Signatures
9Repeal of section 12
10Substitution of section
13
13Time of
dispatch
13ATime of
receipt
13BPlace of dispatch and place of
receipt
11Amendment of section 14—Attribution of
electronic communications
12Insertion of Part 2A
Part 2A—Additional provisions applying
to contracts involving electronic communications
14AApplication and operation of
Part
14BInvitation to
treat regarding contracts
14CUse of automated message systems for contract
formation—non-intervention of natural
person
14DError in
electronic communications regarding contracts
14EApplication of Act in relation to
contracts
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Electronic Transactions (Miscellaneous)
Amendment Act 2011.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Electronic Transactions
Act 2000
4—Amendment
of section 4—Simplified outline
Section 4—after its present contents (now to be designated as
subsection (1)) insert:
(2) Part 2A contains provisions applying to contracts involving electronic
communications, including provisions (relating to the internet in particular)
for the following:
(a) an unaddressed proposal to form a contract is to be regarded as an
invitation to make offers, rather than as an offer that if accepted would result
in a contract;
(b) a contract formed automatically is not invalid, void or unenforceable
because there was no human review or intervention;
(c) a portion of an electronic communication containing an input error can
be withdrawn in certain circumstances;
(d) the application of certain provisions of Part 2 to the extent
they do not apply of their own force.
5—Amendment
of section 5—Interpretation
(1) Section 5(1)—before the definition of consent
insert:
addressee of an electronic communication means a person who
is intended by the originator to receive the electronic communication, but does
not include a person acting as an intermediary with respect to the electronic
communication;
automated message system means a computer program or an
electronic or other automated means used to initiate an action or respond to
data messages in whole or in part, without review or intervention by a natural
person each time an action is initiated or a response is generated by the
system;
(2) Section 5(1), definition of place of
business—delete the definition and substitute:
originator of an electronic communication means a person by
whom, or on whose behalf, the electronic communication has been sent or
generated before storage, if any, but does not include a person acting as an
intermediary with respect to the electronic communication;
performance of a contract includes non-performance of the
contract;
place of business means—
(a) in relation to a person, other than an entity referred to in
paragraph (b)—a place where the person maintains a non-transitory
establishment to pursue an economic activity other than the temporary provision
of goods or services out of a specific location; or
(b) in relation to a government, an authority of a government or a
non-profit body—a place where any operations or activities are carried out
by that government, authority or body;
(3) Section 5(1), definition of transaction—delete the
definition and substitute:
transaction includes—
(a) any transaction in the nature of a contract, agreement or other
arrangement; and
(b) any statement, declaration, demand, notice or request, including an
offer and the acceptance of an offer, that the parties are required to make or
choose to make in connection with the formation or performance of a contract,
agreement or other arrangement; and
(c) any transaction of a non-commercial nature.
After section 6 insert:
6A—Exemptions
(1) The regulations may provide that all or specified provisions of this
Act do not apply—
(a) to transactions, requirements, permissions, electronic communications
or other matters specified, or of classes specified, in the regulations for the
purposes of this section; or
(b) in circumstances specified, or of classes specified, in the
regulations for the purposes of this section.
(2) The regulations may provide that all or specified provisions of this
Act do not apply to specified laws of this jurisdiction.
7—Amendment
of section 7—Validity of electronic transactions
Section 7(3) and (4)—delete subsections (3) and (4)
8—Amendment
of section 9—Signatures
(1) Section 9(1)(a)—delete "approval of" and substitute:
intention in respect of
(2) Section 9(1)(b)—delete paragraph (b) and substitute:
(b) the method used was either—
(i) as reliable as appropriate for the purpose for which the electronic
communication was generated or communicated, in the light of all the
circumstances, including any relevant agreement; or
(ii) proven in fact to have fulfilled the functions described in
paragraph (a), by itself or together with further evidence; and
(3) Section 9(2)(c)—delete "approval of" and substitute:
intention in respect of
(4) Section 9—after subsection (2) insert:
(3) The reference in subsection (1) to a law that requires a signature
includes a reference to a law that provides consequences for the absence of a
signature.
Section 12—delete the section
Section 13—delete the section and substitute:
13—Time of dispatch
(1) For the purposes of
a law of this jurisdiction, unless otherwise agreed between the originator and
the addressee of an electronic communication, the time of dispatch of the
electronic communication is—
(a) the time when the electronic communication leaves an information
system under the control of the originator or of the party who sent it on behalf
of the originator; or
(b) if the electronic communication has not left an information system
under the control of the originator or of the party who sent it on behalf of the
originator—the time when the electronic communication is received by the
addressee.
Note—
Paragraph (b) would apply to a case where the parties exchange electronic
communications through the same information system.
(2)
Subsection (1)
applies even though the place where the information system supporting an
electronic address is located may be different from the place where the
electronic communication is taken to have been dispatched under
section 13B.
13A—Time of receipt
(1) For the purposes of
a law of this jurisdiction, unless otherwise agreed between the originator and
the addressee of an electronic communication—
(a) the time of receipt of the electronic communication is the time when
the electronic communication becomes capable of being retrieved by the addressee
at an electronic address designated by the addressee; or
(b) the time of receipt of the electronic communication at another
electronic address of the addressee is the time when both—
(i) the electronic communication has become capable of being retrieved by
the addressee at that address; and
(ii) the addressee has become aware that the electronic communication has
been sent to that address.
(2) For the purposes of
subsection (1),
unless otherwise agreed between the originator and the addressee of the
electronic communication, it is to be assumed that the electronic communication
is capable of being retrieved by the addressee when it reaches the addressee's
electronic address.
(3)
Subsection (1)
applies even though the place where the information system supporting an
electronic address is located may be different from the place where the
electronic communication is taken to have been received under
section 13B.
13B—Place of dispatch and place of
receipt
(1) For the purposes of
a law of this jurisdiction, unless otherwise agreed between the originator and
the addressee of an electronic communication—
(a) the electronic communication is taken to have been dispatched at the
place where the originator has its place of business; and
(b) the electronic communication is taken to have been received at the
place where the addressee has its place of business.
(2) For the purposes of the application of
subsection (1) to an
electronic communication—
(a) a party's place of business is assumed to be the location indicated by
that party, unless another party demonstrates that the party making the
indication does not have a place of business at that location; and
(b) if a party has not indicated a place of business and has only 1 place
of business, it is to be assumed that that place is the party's place of
business; and
(c) if a party has not
indicated a place of business and has more than 1 place of business, the place
of business is that which has the closest relationship to the underlying
transaction, having regard to the circumstances known to or contemplated by the
parties at any time before or at the conclusion of the transaction;
and
(d) if a party has not indicated a place of business and has more than 1
place of business, but
paragraph (c) does
not apply—it is to be assumed that the party's principal place of business
is the party's only place of business; and
(e) if a party is a natural person and does not have a place of
business—it is to be assumed that the party's place of business is the
place of the party's habitual residence.
(3) A location is not a place of business merely because that
is—
(a) where equipment and technology supporting an information system used
by a party are located; or
(b) where the information system may be accessed by other
parties.
(4) The sole fact that a party makes use of a domain name or electronic
mail address connected to a specific country does not create a presumption that
its place of business is located in that country.
11—Amendment
of section 14—Attribution of electronic
communications
Section 14(3) and (4)—delete subsections (3) and (4)
After Part 2 insert:
Part 2A—Additional provisions applying to contracts
involving electronic communications
14A—Application and operation of
Part
This Part applies to the use of electronic communications in connection
with the formation or performance of a contract between parties where the proper
law of the contract is (or would on its formation be) the law of this
jurisdiction, and so applies—
(a) whether some or all of the parties are located within Australia or
elsewhere; and
(b) whether the contract is for business purposes, for personal, family or
household purposes, or for other purposes.
14B—Invitation to treat regarding
contracts
(1) A proposal to form
a contract made through 1 or more electronic communications
that—
(a) is not addressed to 1 or more specific parties; and
(b) is generally accessible to parties making use of information
systems,
is to be considered as an invitation to make offers, unless it clearly
indicates the intention of the party making the proposal to be bound in case of
acceptance.
(2)
Subsection (1)
extends to proposals that make use of interactive applications for the placement
of orders through information systems.
14C—Use of automated message systems for contract
formation—non-intervention of natural person
A contract formed by—
(a) the interaction of an automated message system and a natural person;
or
(b) the interaction of automated message systems,
is not invalid, void or unenforceable on the sole ground that no natural
person reviewed or intervened in each of the individual actions carried out by
the automated message systems or the resulting contract.
14D—Error in electronic communications regarding
contracts
(1) This section applies in relation to a statement, declaration, demand,
notice or request, including an offer and the acceptance of an offer, that the
parties are required to make or choose to make in connection with the formation
or performance of a contract.
(2) If—
(a) a natural person makes an input error in an electronic communication
exchanged with the automated message system of another party; and
(b) the automated message system does not provide the person with an
opportunity to correct the error,
the person, or the party on whose behalf the person was acting, has the
right to withdraw the portion of the electronic communication in which the input
error was made if—
(c) the person, or the party on whose behalf the person was acting,
notifies the other party of the error as soon as possible after having learned
of the error and indicates that he or she made an error in the electronic
communication; and
(d) the person, or the party on whose behalf the person was acting, has
not used or received any material benefit or value from the goods or services,
if any, received from the other party.
(3) The right of withdrawal of a portion of an electronic communication
under this section is not of itself a right to rescind or otherwise terminate a
contract.
(4) The consequences (if any) of the exercise of the right of withdrawal
of a portion of an electronic communication under this section are to be
determined in accordance with any applicable rule of law.
Note—
In some circumstances the withdrawal of a portion of an electronic
communication may invalidate the entire communication or render it ineffective
for the purposes of contract formation (see paragraph 241 of the UNCITRAL
explanatory note for the United Nations Convention on the Use of Electronic
Communications in International Contracts).
14E—Application of Act in relation to
contracts
(1) Subject to
subsection (2), the
provisions of sections 7, 13, 13A and 13B apply to—
(a) a transaction constituted by or relating to a contract; or
(b) an electronic communication relating to the formation or performance
of a contract,
in the same way as they apply to a transaction or electronic communication
referred to in that Part, and so apply as if the words "For the purposes of a
law of this jurisdiction" and "under a law of this jurisdiction" were
omitted.
(2) However, this Part
(including
subsection (1)) does
not apply to or in relation to a contract to the extent that—
(a) Part 2 would of its own force have the same effect as this Part if
this Part applied; or
(b) a law of another State or Territory (that is in substantially the same
terms as Part 2) would of its own force have the same effect as this Part
if this Part applied.
Note—
This section applies provisions of Part 2 to contracts or proposed
contracts to the extent (if any) that those provisions do not apply merely
because they are expressed to apply in relation to "a law of this jurisdiction".
This section also disapplies the provisions of Part 2A to the extent that
Part 2 would apply of its own force. An example where Part 2 may not
apply of its own force is where a contract is being negotiated in a State or
Territory from a supplier located overseas.