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What lawyers need What lawyers need to know - the to know - the Electronic Electronic Transactions ActTransactions Act

Colin MinihanColin MinihanPrincipal Legal OfficerPrincipal Legal Officer

Information and SecurityInformation and SecurityLaw DivisionLaw Division

Attorney-General’s DeptAttorney-General’s Dept

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Presentation outlinePresentation outline

the Electronic the Electronic Transactions ActTransactions Act

issues raised by the Actissues raised by the Act State and Territory State and Territory

developmentsdevelopments international legal international legal

developmentsdevelopments

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Electronic Electronic Transactions Act Transactions Act

backgroundbackground– based on international based on international

templatetemplate– expert and public expert and public

consultationconsultation uniform national legislation uniform national legislation

agreedagreed effect - you can do business effect - you can do business

online with legal certaintyonline with legal certainty

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ET Act - principlesET Act - principles

media neutralitymedia neutrality– treats paper and treats paper and

electronic communications electronic communications equallyequally

technology neutralitytechnology neutrality– doesn’t discriminate doesn’t discriminate

between different forms of between different forms of technologytechnology

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ET Act - basic ruleET Act - basic rule

a transaction will not be a transaction will not be invalid merely because it invalid merely because it took place by means of an took place by means of an electronic communicationelectronic communication– transaction must satisfy transaction must satisfy

any other existing legal any other existing legal requirementsrequirements

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ET Act - core ET Act - core provisionsprovisions

electronic electronic communications can communications can satisfy existing legal satisfy existing legal requirements for:requirements for:– writingwriting– signaturesignature– production of documentsproduction of documents– retention of informationretention of information

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ET Act - common ET Act - common elementselements

‘‘readily accessible so as to readily accessible so as to be useable for subsequent be useable for subsequent reference’reference’

consent requiredconsent required– Commonwealth Govt Commonwealth Govt mustmust

accept communicationsaccept communications– Commonwealth entities’ Commonwealth entities’

powerspowers operation of other laws operation of other laws

preservedpreserved

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ET Act - exemptionsET Act - exemptions

from 1 July 2001 has from 1 July 2001 has applied to all applied to all Commonwealth laws Commonwealth laws subject to any exemptionssubject to any exemptions

Electronic Transactions Electronic Transactions Regulations list Regulations list exemptionsexemptions– 101 laws (Acts and 101 laws (Acts and

regulations) exempted regulations) exempted

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Issues raised by the Issues raised by the ActAct

electronic communicationelectronic communication law of the Commonwealthlaw of the Commonwealth IT requirementsIT requirements contractingcontracting

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E-Security and the E-Security and the ActAct

doesn’t deal with security doesn’t deal with security of communications of communications directlydirectly

should be considered in should be considered in practical implementation practical implementation of systemsof systems– electronic signatureselectronic signatures

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State and Territory State and Territory DevelopmentsDevelopments

enacted by NSW, Victoria, enacted by NSW, Victoria, Northern Territory, Northern Territory, Tasmania, South Australia, Tasmania, South Australia, the ACT and Queenslandthe ACT and Queensland

commenced in Vic. on 1 commenced in Vic. on 1 Sept 2000 and ACT on 1 Sept 2000 and ACT on 1 July 2001July 2001

lapsed in WA due to lapsed in WA due to electionselections

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International Legal International Legal DevelopmentsDevelopments

EC DirectivesEC Directives– electronic signatureselectronic signatures– electronic commerceelectronic commerce

US, Canadian Uniform US, Canadian Uniform LawsLaws

many others enacting lawsmany others enacting laws– eg Singapore, Hong Kong, eg Singapore, Hong Kong,

Korea, India, New ZealandKorea, India, New Zealand

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International Legal International Legal Developments (2)Developments (2)

UNCITRAL Model Law on UNCITRAL Model Law on Electronic SignaturesElectronic Signatures

Hague Convention - Hague Convention - jurisdictionjurisdiction

OECD working group - OECD working group - ADRADR

Cybercrime conventionCybercrime convention

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Electronic SignaturesElectronic Signatures

ET Act section 10ET Act section 10 can satisfy legal can satisfy legal

requirement for a requirement for a signature by using any signature by using any technique that:technique that:– identifies a personidentifies a person– indicates their approvalindicates their approval– is appropriate in is appropriate in

circumstancescircumstances

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Electronic Signatures Electronic Signatures (2)(2)

PKI systems/digital PKI systems/digital signaturessignatures– Government’s ‘Gatekeeper’Government’s ‘Gatekeeper’– Certification Forum of Certification Forum of

AustraliaAustralia other technologies eg other technologies eg

‘PenOp’ (signature ‘PenOp’ (signature dynamics)dynamics)

NEAC NEAC

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Further informationFurther information

Attorney-General’s Attorney-General’s DepartmentDepartment e-commerce homepage: e-commerce homepage: http://law.gov.au/ecommehttp://law.gov.au/ecommercerce