Western Australian Bills

[Index] [Search] [Download] [Related Items] [Help]


This is a Bill, not an Act. For current law, see the Acts databases.


ELECTRONIC TRANSACTIONS BILL 2001

                        Western Australia


       Electronic Transactions Bill 2001

                           CONTENTS


       Part 1 -- Preliminary
1.     Short title                                             2
2.     Commencement                                            2
3.     Object                                                  2
4.     Status of notes                                         3
5.     Definitions                                             3
6.     Crown to be bound                                       4
       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
7.     Validity of electronic transactions                     5
       Division 2 -- Things done under laws of this
             jurisdiction
8.     Writing                                                 5
9.     Signatures                                              7
10 .   Production of document                                  7
11 .   Retention of information and documents                  9
12 .   Exemptions from this Division                          11
       Division 3 -- Other provisions relating to laws of
             this jurisdiction
13 .   Time and place of dispatch and receipt of electronic
       communications                                         12
14 .   Attribution of electronic communications               13


                                                              page i
                             38--1
Electronic Transactions Bill 2001



Contents



           Part 3 -- Miscellaneous
   15 .    Regulations              15




page ii
                           Western Australia


                     LEGISLATIVE ASSEMBLY



           Electronic Transactions Bill 2001


                               A Bill for


An Act to facilitate electronic transactions, and for other purposes.



The Parliament of Western Australia enacts as follows:




                                                                 page 1
     Electronic Transactions Bill 2001
     Part 1          Preliminary

     s. 1



                               Part 1 -- Preliminary
     1.         Short title
                This Act may be cited as the Electronic Transactions Act 2001.
     2.         Commencement
5         (1)   This Act comes into operation on a day fixed by proclamation.
          (2)   Different days may be fixed under subsection (1) for different
                provisions.
     3.         Object
                The object of this Act is to provide a regulatory framework
10              that --
                  (a) recognises the importance of the electronic
                       communication of information to the future economic
                       and social prosperity of Western Australia;
                  (b) facilitates the use of electronic communication as a way
15                     of entering into transactions;
                  (c) promotes business and community confidence in the use
                       of electronic communication as a way of entering into
                       transactions; and
                  (d) enables business and the community to use electronic
20                     communication in their dealings with government.
                Note:    These objects are achieved by providing --
                         (a)   that, subject to certain exceptions, a transaction is not
                               invalid for the purposes of a law of the State because it took
                               place by electronic communication;
25                       (b)   that things that can or have to be done under a law of the
                               State in relation to any of the following matters can generally
                               be done by electronic communication --
                               (i)     giving information in writing;
                               (ii)    providing a signature;
30                             (iii)   producing a document;
                               (iv)    recording information;
                               (v)     retaining a document;


     page 2
                                             Electronic Transactions Bill 2001
                                                   Preliminary          Part 1

                                                                                 s. 4



                  (c)   for determining the time and place of the dispatch and
                        receipt of an electronic communication for the purposes of a
                        law of the State; and
                  (d)   that the purported originator of an electronic communication
5                       is bound by it for the purposes of a law of the State only if
                        the communication was sent by the purported originator or
                        with the authority of the purported originator.

     4.   Status of notes
          Notes in this Act are provided to assist understanding and do not
10        form part of the Act.
     5.   Definitions
          In this Act --
          "consent" includes consent that can reasonably be inferred from
               the conduct of the person concerned, but does not include
15             consent given subject to conditions unless the conditions
               are complied with;
          "data" includes the whole or part of a computer program within
               the meaning of the Copyright Act 1968 of the
               Commonwealth;
20        "data storage device" means any article or material (for
               example, a disk) from which information is capable of
               being reproduced, with or without the aid of any other
               article or device;
          "electronic communication" means --
25             (a) communication of information in the form of data,
                      text or images by means of guided or unguided
                      electromagnetic energy, or both; or
               (b) communication of information in the form of sound
                      by means of guided or unguided electromagnetic
30                    energy, or both, where the sound is processed at its
                      destination by an automated voice recognition
                      system,
               and "an electronic communication" has a corresponding
               meaning;

                                                                              page 3
     Electronic Transactions Bill 2001
     Part 1          Preliminary

     s. 6



              "information" means information in the form of data, text,
                   images or sound;
              "information system" means a system for generating, sending,
                   receiving, storing or otherwise processing electronic
5                  communications;
              "information technology requirements" includes software
                   requirements;
              "law of this jurisdiction" means any law of this jurisdiction,
                  whether written or unwritten, but does not include a law of
10                the Commonwealth;
              "non-profit body" means a body that is not carried on for the
                  purposes of profit or gain to its individual members and is,
                  by the terms of the body's constitution, prohibited from
                  making any distribution, whether in money, property or
15                otherwise, to its members;
              "place of business", in relation to a government, an authority of
                  a government or a non-profit body, means a place where
                  any operations or activities are carried out by that
                  government, authority or body;
20            "this jurisdiction" means Western Australia;
              "transaction" includes any transaction in the nature of a
                  contract, agreement or other arrangement, and also includes
                  any transaction of a non-commercial nature.

     6.       Crown to be bound
25            This Act binds the Crown in right of Western Australia and, in
              so far as the legislative power of Parliament permits, the Crown
              in all its other capacities.




     page 4
                                                   Electronic Transactions Bill 2001
           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. 7


           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
5    7.         Validity of electronic transactions
          (1)   For the purposes of a law of this jurisdiction, a transaction is not
                invalid because it took place wholly or partly by electronic
                communication.
          (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
                specific, provision of this Part deals with the validity of the
                transaction.
          (3)   The regulations may provide that subsection (1) does not apply
                to a specified transaction or specified class of transactions.
15        (4)   The regulations may provide that subsection (1) does not apply
                to a specified law of this jurisdiction.

           Division 2 -- Things done under laws of this jurisdiction
     8.         Writing
          (1)   If, under a law of this jurisdiction, a person is required to give
20              information in writing, that requirement is taken to have been
                met if the person gives the information by electronic
                communication, where --
                   (a) at the time the information was given, it was reasonable
                        to expect that the information would be readily
25                      accessible then and for subsequent reference; and
                  (b) the person to whom the information is required to be
                        given consents to the information being given by
                        electronic communication.


                                                                             page 5
     Electronic Transactions Bill 2001
     Part 2          Application of legal requirements and authorisations to
                     electronic communications
     Division 2      Things done under laws of this jurisdiction
     s. 8


        (2)   If, under a law of this jurisdiction, a person is permitted to give
              information in writing, the person may give the information by
              electronic communication, where --
                 (a) at the time the information was given, it was reasonable
5                     to expect that the information would be readily
                      accessible then and for subsequent reference; and
                (b) the person to whom the information is permitted to be
                      given consents to the information being given by
                      electronic communication.
10      (3)   This section does not affect the operation of any other law of
              this jurisdiction that makes provision for or in relation to
              requiring or permitting information to be given, in accordance
              with particular information technology requirements --
                (a) on a particular kind of data storage device; or
15              (b) by a particular kind of electronic communication.
        (4)   This section applies to a requirement or permission to give
              information, whether the expression "give", "send" or "serve",
              or any other expression, is used.
        (5)   For the purposes of this section, "giving information" includes,
20            but is not limited to, the following --
                (a) making an application;
                (b) making or lodging a claim;
                (c) giving, sending or serving a notification;
               (d) lodging a return;
25              (e) making a request;
                 (f)   making a declaration;
                (g)    lodging or issuing a certificate;
                (h)    making, varying or cancelling an election;
                 (i)   lodging an objection;
30               (j)   giving a statement of reasons.
              Note:    Section 12 sets out exemptions from this section.


     page 6
                                                       Electronic Transactions Bill 2001
                 Application of legal requirements and authorisations to          Part 2
                                              electronic communications
                              Things done under laws of this jurisdiction    Division 2
                                                                                     s. 9


     9.           Signatures
           (1)    If, under a law of this jurisdiction, the signature of a person is
                  required, that requirement is taken to have been met in relation
                  to an electronic communication if --
 5                   (a) a method is used to identify the person and to indicate
                          the person's approval of the information communicated;
                    (b) having regard to all the relevant circumstances at the
                          time the method was used, the method was as reliable as
                          was appropriate for the purposes for which the
10                        information was communicated; and
                     (c) the person to whom the signature is required to be given
                          consents to that requirement being met by the use of the
                          method mentioned in paragraph (a).
           (2)    This section does not affect the operation of any other law of
15                this jurisdiction that makes provision for or in relation to
                  requiring --
                    (a) an electronic communication to contain an electronic
                           signature (however described);
                    (b) an electronic communication to contain a unique
20                         identification in an electronic form; or
                    (c) a particular method to be used in relation to an
                           electronic communication to identify the originator of
                           the communication and to indicate the originator's
                           approval of the information communicated.
25                Note:    Section 12 sets out exemptions from this section.

     10.          Production of document
           (1)    If, under a law of this jurisdiction, a person is required to
                  produce a document that is in the form of paper, an article or
                  other material, that requirement is taken to have been met if the
30                person produces, by electronic communication or otherwise, an
                  electronic form of the document, where --
                     (a) having regard to all the relevant circumstances at the
                          time the document was produced, the method of

                                                                                 page 7
     Electronic Transactions Bill 2001
     Part 2          Application of legal requirements and authorisations to
                     electronic communications
     Division 2      Things done under laws of this jurisdiction
     s. 10


                       generating the electronic form of the document provided
                       a reliable means of assuring the maintenance of the
                       integrity of the information contained in the document;
                (b)    at the time the document was produced, it was
5                      reasonable to expect that the information contained in
                       the electronic form of the document would be readily
                       accessible then and for subsequent reference; and
                (c)    the person to whom the document is required to be
                       produced consents to the production of an electronic
10                     form of the document.
        (2)   If, under a law of this jurisdiction, a person is permitted to
              produce a document that is in the form of paper, an article or
              other material, then, instead of producing the document in that
              form, the person may produce, by electronic communication or
15            otherwise, an electronic form of the document, where --
                 (a) having regard to all the relevant circumstances at the
                      time the document was produced, the method of
                      generating the electronic form of the document provided
                      a reliable means of assuring the maintenance of the
20                    integrity of the information contained in the document;
                (b) at the time the document was produced, it was
                      reasonable to expect that the information contained in
                      the electronic form of the document would be readily
                      accessible then and for subsequent reference; and
25               (c) the person to whom the document is permitted to be
                      produced consents to the production of an electronic
                      form of the document.
        (3)   For the purposes of this section, the integrity of information
              contained in a document is maintained if, and only if, the
30            information has remained complete and unaltered, apart from --
                (a) the addition of any endorsement; or
                (b) any immaterial change,
              which arises in the normal course of communication, storage or
              display.

     page 8
                                                       Electronic Transactions Bill 2001
                 Application of legal requirements and authorisations to          Part 2
                                              electronic communications
                              Things done under laws of this jurisdiction    Division 2
                                                                                    s. 11


           (4)    This section does not affect the operation of any other law of
                  this jurisdiction that makes provision for or in relation to
                  requiring or permitting electronic forms of documents to be
                  produced, in accordance with particular information technology
5                 requirements --
                    (a) on a particular kind of data storage device; or
                    (b) by a particular kind of electronic communication.
                  Note:    Section 12 sets out exemptions from this section.

     11.          Retention of information and documents
10         (1)    If, under a law of this jurisdiction, a person is required to record
                  information in writing, that requirement is taken to have been
                  met if the person records the information in electronic form,
                  where --
                     (a) at the time of the recording of the information, it was
15                        reasonable to expect that the information would be
                          readily accessible for subsequent reference; and
                    (b) if the regulations require that the information be
                          recorded on a particular kind of data storage device, that
                          requirement has been met.
20         (2)    If, under a law of this jurisdiction, a person is required to retain,
                  for a particular period, a document that is in the form of paper,
                  an article or other material, that requirement is taken to have
                  been met if the person retains the document, or causes another
                  person to retain the document, on a data storage device
25                throughout that period, where --
                     (a) having regard to all the relevant circumstances at the
                          time of recording the document on the data storage
                          device, the method of retaining the document provided a
                          reliable means of assuring the maintenance of the
30                        integrity of the information contained in the document;
                    (b) at the time of recording the document on the data
                          storage device, it was reasonable to expect that the
                          information so recorded would be readily accessible for
                          reference throughout that period; and

                                                                                 page 9
     Electronic Transactions Bill 2001
     Part 2          Application of legal requirements and authorisations to
                     electronic communications
     Division 2      Things done under laws of this jurisdiction
     s. 11


                 (c)   if the regulations require that the document be retained
                       on a particular kind of data storage device, that
                       requirement has been met throughout that period.
        (3)    For the purposes of subsection (2), the integrity of information
5              contained in a document is maintained if, and only if, the
               information has remained complete and unaltered, apart from --
                 (a) the addition of any endorsement; or
                 (b) any immaterial change,
               which arises in the normal course of communication, storage or
10             display.
        (4)    If, under a law of this jurisdiction, a person (the "first person")
               is required to retain, for a particular period, information that was
               the subject of an electronic communication, that requirement is
               taken to have been met if the first person retains the
15             information, or causes another person to retain the information,
               on a data storage device throughout that period, where --
                  (a) at the time of commencement of the retention of the
                       information, it was reasonable to expect that the
                       information would be readily accessible for reference
20                     throughout that period;
                 (b) having regard to all the relevant circumstances at the
                       time of commencement of the retention of the
                       information, the method of retaining the information
                       provided a reliable means of assuring the maintenance
25                     of the integrity of the information contained in the
                       electronic communication;
                  (c) throughout that period, the first person also retains, or
                       causes the other person to retain, on a data storage
                       device, such additional information obtained by the first
30                     person as is sufficient to enable the identification of the
                       following --
                          (i) the origin of the electronic communication;
                         (ii) the destination of the electronic communication;

     page 10
                                                       Electronic Transactions Bill 2001
                 Application of legal requirements and authorisations to          Part 2
                                              electronic communications
                              Things done under laws of this jurisdiction    Division 2
                                                                                    s. 12


                           (iii)   the time when the electronic communication was
                                   sent;
                           (iv) the time when the electronic communication was
                                   received;
5                   (d)   at the time of commencement of the retention of the
                          additional information covered by paragraph (c), it was
                          reasonable to expect that the additional information
                          would be readily accessible for reference throughout
                          that period; and
10                  (e)   if the regulations require that the information be retained
                          on a particular kind of data storage device, that
                          requirement has been met throughout that period.
           (5)    For the purposes of subsection (4), the integrity of information
                  that was the subject of an electronic communication is
15                maintained if, and only if, the information has remained
                  complete and unaltered, apart from --
                    (a) the addition of any endorsement; or
                    (b) any immaterial change,
                  which arises in the normal course of communication, storage or
20                display.
                  Note:    Section 12 sets out exemptions from this section.

     12.          Exemptions from this Division
           (1)    The regulations may provide that this Division, or a specified
                  provision of this Division, does not apply to a specified
25                requirement or specified class of requirements.
           (2)    The regulations may provide that this Division, or a specified
                  provision of this Division, does not apply to a specified
                  permission or specified class of permissions.
           (3)    The regulations may provide that this Division, or a specified
30                provision of this Division, does not apply to a specified law of
                  this jurisdiction.

                                                                                page 11
     Electronic Transactions Bill 2001
     Part 2          Application of legal requirements and authorisations to
                     electronic communications
     Division 3      Other provisions relating to laws of this jurisdiction
     s. 13


                 Division 3 -- Other provisions relating to laws of
                                this jurisdiction
     13.         Time and place of dispatch and receipt of electronic
                 communications
5          (1)   For the purposes of a law of this jurisdiction, if an electronic
                 communication enters a single information system outside the
                 control of the originator, then, unless otherwise agreed between
                 the originator and the addressee of the electronic
                 communication, the dispatch of the electronic communication
10               occurs when it enters that information system.
           (2)   For the purposes of a law of this jurisdiction, if an electronic
                 communication enters successively 2 or more information
                 systems outside the control of the originator, then, unless
                 otherwise agreed between the originator and the addressee of
15               the electronic communication, the dispatch of the electronic
                 communication occurs when it enters the first of those
                 information systems.
           (3)   For the purposes of a law of this jurisdiction, if the addressee of
                 an electronic communication has designated an information
20               system for the purpose of receiving electronic communications,
                 then, unless otherwise agreed between the originator and the
                 addressee of the electronic communication, the time of receipt
                 of the electronic communication is the time when the electronic
                 communication enters that information system.
25         (4)   For the purposes of a law of this jurisdiction, if the addressee of
                 an electronic communication has not designated an information
                 system for the purpose of receiving electronic communications,
                 then, unless otherwise agreed between the originator and the
                 addressee of the electronic communication, the time of receipt
30               of the electronic communication is the time when the receipt of
                 the electronic communication comes to the attention of the
                 addressee.



     page 12
                                                       Electronic Transactions Bill 2001
                 Application of legal requirements and authorisations to          Part 2
                                              electronic communications
                    Other provisions relating to laws of this jurisdiction   Division 3
                                                                                    s. 14


           (5)    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
5                         dispatched from the originator's place of business; and
                    (b) the electronic communication is taken to have been
                          received at the addressee's place of business.
           (6)    For the purposes of the application of subsection (5) to an
                  electronic communication --
10                  (a) if the originator or addressee has more than one place of
                          business, and one of those places has a closer
                          relationship to the underlying transaction, it is to be
                          assumed that that place of business is the originator's or
                          addressee's only place of business;
15                  (b) if the originator or addressee has more than one place of
                          business, but paragraph (a) does not apply, it is to be
                          assumed that the originator's or addressee's principal
                          place of business is the originator's or addressee's only
                          place of business; and
20                  (c) if the originator or addressee does not have a place of
                          business, it is to be assumed that the originator's or
                          addressee's place of business is the place where the
                          originator or addressee ordinarily resides.
           (7)    The regulations may provide that this section does not apply to a
25                specified electronic communication or specified class of
                  electronic communications.
           (8)    The regulations may provide that this section does not apply to a
                  specified law of this jurisdiction.

     14.          Attribution of electronic communications
30         (1)    For the purposes of a law of this jurisdiction, unless otherwise
                  agreed between the purported originator and the addressee of an
                  electronic communication, the purported originator of the

                                                                                page 13
     Electronic Transactions Bill 2001
     Part 2          Application of legal requirements and authorisations to
                     electronic communications
     Division 3      Other provisions relating to laws of this jurisdiction
     s. 14


               electronic communication is bound by that communication only
               if the communication was sent by the purported originator or
               with the authority of the purported originator.
        (2)    Subsection (1) does not affect the operation of a law of this
5              jurisdiction that makes provision for --
                 (a) conduct engaged in by a person within the scope of the
                       person's actual or apparent authority to be attributed to
                       another person; or
                 (b) a person to be bound by conduct engaged in by another
10                     person within the scope of the other person's actual or
                       apparent authority.
        (3)    The regulations may provide that this section does not apply to a
               specified electronic communication or specified class of
               electronic communications.
15      (4)    The regulations may provide that this section does not apply to a
               specified law of this jurisdiction.
        (5)    Subject to the regulations, this Act applies, with any necessary
               modifications, to conduct referred to in subsection (2).




     page 14
                                          Electronic Transactions Bill 2001
                                             Miscellaneous           Part 3

                                                                      s. 15



                      Part 3 -- Miscellaneous
    15.   Regulations
          The Governor may make regulations prescribing all matters that
          are required or permitted by this Act to be prescribed, or are
5         necessary or convenient to be prescribed for giving effect to the
          purposes of this Act.




 


[Index] [Search] [Download] [Related Items] [Help]