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Tuesday, 10 May 2011
Page: 2062

Senator BRANDIS (QueenslandDeputy Leader of the Opposition in the Senate) (13:56): The Electronic Transactions Amendment Bill 2011 updates the Electronic Transactions Act 1999 to align the legislation with the relevant UN convention of 2005. The 1999 act imple­mented the UN Commission on International Trade Law, UNCITRAL, model law on electronic commerce of 1996. The intention of the model law is to provide a more secure environment for electronic commerce to remove legal obstacles to its acceptance. The principal effect of the act is to provide that transactions will not be invalid merely because they have been completed elect­ronically. Giving information in writing, providing a handwritten signature, producing a document in material form and recording or retaining information may all be done electronically.

The 2005 convention seeks to build on the model law in the light of the practical experiences of the past 15 years and in particular with respect to issues relating to the formation and performance of contracts between parties in different countries. However, it makes no substantive change to the law of contract.

Exemptions to this regime include negotiable instruments and documents of title where there is a risk of unauthorised duplication. Complex transactions, a defined term, will remain subject to their own regulatory and contractual rules. Regulations will provide that documents such as passports and statutory declarations should be in paper based form only.

This bill was drafted by the Australasian Parliamentary Counsel's Committee and was approved by the Standing Committee of Attorneys-General in May 2010. The parliaments of New South Wales and Tasmania have already passed the amendments, with the remainder of the states and territories expected to do so by the middle of the year.

The bill applies the changes proposed by the convention in respect of international contracts. It provides default rules for determining the time of dispatch and receipt of electronic communications for the pur­poses of formation and performance of a contract. It also clarifies the traditional contractual rules on formation in the context of electronic commerce to recognise auto­mated message systems. It clarifies rules about invitations to treat and determining the location of the parties and updates the electronic signature provisions. The con­vention rules exclude personal, domestic or household contracts from its regime. However, the bill does not make any such exclusion. The reason for this is that the act does not override the consumer protection provisions of the Competition and Consumer Act, formerly the Trade Practices Act. The public consultation process called for submissions on this issue but received none. This is not surprising, because the bill makes no substantive changes to contractual rules or remedies.

It should be noted that nothing in the convention or the bill affects the principle that contracting parties should be free to agree on matters effecting the formation and performance of a contract between them. People contracting in different countries may agree on the law that is to apply to their dealings. The convention rules only apply when the relevant law validly chosen by the parties or otherwise deemed to apply is that of a contracting state.

The coalition supports the bill. I commend it to the Senate.

Question agreed to.

Bill read a second time.