Senator STOTT DESPOJA (1:46 PM) —On behalf of the Democrats, I rise to speak briefly on the Electronic Transactions Bill 1999 . Firstly, let me state that the Democrats, like the opposition, will be supporting the legislation. Like the opposition, we have expressed a number of concerns about the legislation. Some of those are laid out in the second reading amendment standing in my name, which I will move shortly.

Broadly, there are two main areas of concern. The first of these relates to the comprehensiveness of the scheme created under this legislation. The primary purpose of the bill is to make a series of changes to evidence law to ensure the legitimacy of electronic transactions. The bill also provides a fairly broad right for Australian citizens to use electronic transactions in their dealings with the Commonwealth government. While we quite strongly support the legislation, the Democrats are concerned that these changes alone are not enough.

Electronic transactions will not be adopted until a range of other concerns are addressed by this government. These concerns relate to privacy for personal information, communications, transactions, authentication and security more generally. We believe these issues have been swept under the carpet by both the Attorney-General and the Minister for Communications, Information Technology and the Arts. We believe the behaviour surrounding the Walsh report and its withdrawal from circulation will continue to embarrass our Attorney-General until there is wider public debate and action on ensuring that we have communications privacy. There are approaches that could be adopted to freeing up the availability and use of encryption that deserve further consideration. I have put those on record in this place on other occasions. I note that we are due to discuss amending legislation regarding ASIO fairly shortly. I will be addressing some of those issues under that legislation as well.

I am also concerned that the continuing lack of an effective regime for protection of personal information held by the private sector is a major impediment to the adoption of electronic commerce in Australia. We are still awaiting the release of the government's private sector privacy proposals, which seem to be taking rather a long time to reach some kind of legislative form. At the same time, I would like to thank the Attorney-General and his office for the comprehensive consultation process in which the government has been engaged.

The Australian Democrats are also concerned that the list of exceptions to the new electronic transactions rights is not broadened. While we can support the exception of certain documents for forensic purposes, we do not want to see this grow beyond these document authenticity concerns. In particular, we do not want to see expansions due to the unwillingness or inability of government to provide the necessary electronic transactions framework. There is also a need to ensure that electronic transactions are made available in an equitable way. By this, I mean that we need to provide resources to both government and citizens to encourage and enable the use of electronic transactions.

The other broad area of concern for the Australian Democrats relates to the need for national and international uniformity. A number of academics and commentators have drawn attention to the limited jurisdictional reach of this legislation. The previous speaker has certainly referred to that. Despite the need to ensure that electronic transactions are subject to a uniform legal framework nationally, if not internationally, the government intends only to cover transactions with the Commonwealth or under laws of the Commonwealth.

The government has opted for a uniform national scheme instead of a single piece of legislation as was recommended by the Electronic Commerce Expert Group. This is despite the apparent availability of constitutional powers allowing a national framework using trade, telecommunications and corporations powers. The government approach was adopted after advice from the Solicitor-General indicated that a single national piece of legislation would infringe a range of constitutional provisions. This argument is based on the problem created by Commonwealth laws which would prescribe evidence interpretation provisions in other jurisdictions.

While we accept the constitutional limitations on the establishment of a national scheme based on Commonwealth legislation, we are also painfully aware of the jurisdictional problems created by electronic transactions. The government intends to rely on the implementation of a nationally uniform scheme through the enactment by the states of uniform legislation using the Commonwealth model. The Attorney-General's office has indicated that there is already agreement from the standing committee of Attorneys-General to adopt the Commonwealth model nationally. It is unfortunate that this has not been formalised or made more public. That is perhaps the key concern that we have outlined in the Democrats' second reading amendment: for Australian states and territories to immediately enact complementary legislation to create a uniform national framework for electronic transactions.

The Australian Democrats call on governments of Australian states and territories to immediately enact this legislation. The importance of that cannot be overemphasised. We look forward to a genuine commitment from this government to the scheme outlined in the legislation and hope that it can be implemented in a comprehensive, fair and equitable way.

I understand that Senator Patterson will provide answers to some of the queries that have been raised in the second reading debate speeches. To facilitate debate, I move:

At the end of the motion, add: "but the Senate:

(a) calls on the government to:

(i) implement a comprehensive, effective and rights based privacy framework covering the private sector; and

(ii) continue to address encryption policy in Australia, including safeguarding the right of citizens to engage in secure and private communications and transactions; and

(iii) assist in the creation of a national authentication framework, to reduce the likelihood of authentication becoming a speculative commercial activity; and

(b) calls on the governments of the Australian States and Territories to immediately enact complementary legislation to create a uniform national framework for electronic transactions; and

(c) recognises the need for a small range of transactions to be excepted from the framework for document forensics purposes while reaffirming the comprehensive nature of this legislation at the Commonwealth level; and

(d) recognises the important work done by the Electronic Commerce Expert Group".