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TASMANIA
__________
ELECTRONIC TRANSACTIONS AMENDMENT
BILL 2010
__________
CONTENTS
1. Short title
2. Commencement
3. Principal Act
4. Section 3 amended (Interpretation)
5. Section 4A inserted
4A. Exemptions
6. Section 5 amended (Validity of electronic transactions)
7. Section 7 amended (Signatures)
8. Section 10 repealed
9. Section 11 substituted
11. Time of dispatch
11A. Time of receipt
11B. Place of dispatch and place of receipt
10. Section 12 amended (Attribution of electronic communications)
11. Part 2A inserted
PART 2A - Additional Provisions Applying to Contracts
Involving Electronic Communications
12A. Application and operation of this Part
12B. Invitation to treat regarding contracts
12C. Use of automated message systems for contract
formation - non-intervention of natural person
12D. Error in electronic communications regarding
contracts
[Bill 29]-I
12E. Application of Act in relation to contracts
12. Section 13A inserted
13A. Transitional provisions - Electronic Transactions
Amendment Act 2010
13. Repeal of Act
2
ELECTRONIC TRANSACTIONS AMENDMENT
BILL 2010
This Public Bill originated in the House of Assembly, and, having this day passed, is
now ready for presentation to the Legislative Council for its concurrence.
P. R. ALCOCK, Clerk of the House
21 September 2010
(Brought in by the Minister for Justice, the Honourable
Larissa Tahireh Giddings)
A BILL FOR
An Act to amend the Electronic Transactions Act 2000
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
1. Short title
This Act may be cited as the Electronic
Transactions Amendment Act 2010.
2. Commencement
The provisions of this Act commence on a day
or days to be proclaimed.
[Bill 29] 3
Electronic Transactions Amendment Act 2010
Act No. of
s. 3
3. Principal Act
In this Act, the Electronic Transactions Act
2000* is referred to as the Principal Act.
4. Section 3 amended (Interpretation)
Section 3 of the Principal Act is amended as
follows:
(a) by inserting the following definitions
before the definition of "consent":
"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;
*No. 75 of 2000
4
Electronic Transactions Amendment Act 2010
Act No. of
s. 4
(b) by omitting the definition of "place of
business" and substituting the following
definitions:
"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
5
Electronic Transactions Amendment Act 2010
Act No. of
s. 4
any operations or
activities are carried out
by that government,
authority or body;
(c) by omitting the definition of
"transaction" and substituting the
following definition:
"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.
6
Electronic Transactions Amendment Act 2010
Act No. of
s. 5
5. Section 4A inserted
After section 4 of the Principal Act, the
following section is inserted in Part 1:
4A. 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.
6. Section 5 amended (Validity of electronic
transactions)
Section 5 of the Principal Act is amended by
omitting subsections (3) and (4).
7
Electronic Transactions Amendment Act 2010
Act No. of
s. 7
7. Section 7 amended (Signatures)
Section 7 of the Principal Act is amended as
follows:
(a) by omitting from subsection (1)(a)
"approval of" and substituting "intention
in respect of";
(b) by omitting paragraph (b) from
subsection (1) and substituting the
following paragraph:
(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
(c) by omitting from subsection (2)(c)
"approval of" and substituting "intention
in respect of";
8
Electronic Transactions Amendment Act 2010
Act No. of
s. 8
(d) by inserting the following subsection
after subsection (2):
(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.
8. Section 10 repealed
Section 10 of the Principal Act is repealed.
9. Section 11 substituted
Section 11 of the Principal Act is repealed and
the following sections are substituted:
11. 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
9
Electronic Transactions Amendment Act 2010
Act No. of
s. 9
(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.
(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 11B.
11A. 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 -
10
Electronic Transactions Amendment Act 2010
Act No. of
s. 9
(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 11B.
11B. 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
11
Electronic Transactions Amendment Act 2010
Act No. of
s. 9
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
one 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 one 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
12
Electronic Transactions Amendment Act 2010
Act No. of
s. 9
the conclusion of the transaction;
and
(d) if a party has not indicated a
place of business and has more
than one 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 it is -
(a) where equipment and technology
supporting an information system
used by a party are located; or
(b) where that 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.
13
Electronic Transactions Amendment Act 2010
Act No. of
s. 10
10. Section 12 amended (Attribution of electronic
communications)
Section 12 of the Principal Act is amended by
omitting subsections (3) and (4).
11. Part 2A inserted
After section 12 of the Principal Act, the
following Part is inserted:
PART 2A - ADDITIONAL PROVISIONS APPLYING
TO CONTRACTS INVOLVING ELECTRONIC
COMMUNICATIONS
12A. Application and operation of this 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.
14
Electronic Transactions Amendment Act 2010
Act No. of
s. 11
12B. Invitation to treat regarding contracts
(1) A proposal to form a contract made
through one or more electronic
communications that -
(a) is not addressed to one 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.
12C. 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 -
15
Electronic Transactions Amendment Act 2010
Act No. of
s. 11
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.
12D. 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
16
Electronic Transactions Amendment Act 2010
Act No. of
s. 11
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.
12E. Application of Act in relation to contracts
(1) Subject to subsection (2), the provisions
of sections 5, 11, 11A and 11B apply to -
17
Electronic Transactions Amendment Act 2010
Act No. of
s. 12
(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 Part 2, 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 a
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.
12. Section 13A inserted
After section 13 of the Principal Act, the
following section is inserted in Part 3:
18
Electronic Transactions Amendment Act 2010
Act No. of
s. 12
13A. Transitional provisions - Electronic
Transactions Amendment Act 2010
(1) Regulations made under this Act before
the commencement of section 4A and in
force immediately before that
commencement continue in force as if
that section had been in force when they
were made.
(2) Subject to subsection (3) -
(a) section 12B extends to proposals
made before the commencement
date; and
(b) section 12C extends to actions
carried out before the
commencement date; and
(c) section 12D extends to
statements, declarations,
demands, notices or requests,
including offers and the
acceptance of offers, made or
given before the commencement
date.
(3) Subsection (2) and Part 2A do not apply
in relation to contracts formed before the
commencement date.
(4) In subsections (2) and (3) -
"commencement date" means the
date of commencement of
Part 2A.
19
Electronic Transactions Amendment Act 2010
Act No. of
s. 13
13. Repeal of Act
This Act is repealed on the ninetieth day from
the day on which all of the provisions of this Act
commence.
20 Government Printer, Tasmania