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Government Online Legal Issues Conference, Telstra Theatre, Australian War Memorial, Canberra: opening address.



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August 2001

Opening Address Government Online Legal Issues Conference Telstra Theatre, Australian War Memorial, Canberra 9:10am, Friday 24 August 2001

Introduction It is a pleasure to officially open the second annual Government Online Legal Issues Conference. 1.

There is no doubt that new technologies - and the Internet in particular - are dramatically changing our lives. Our economy and our society are being shaped by e-mail, e-commerce, and e-data.

2.

The challenge we face is to use these technologies in an intelligent and innovative way. We need to make sure that emerging technologies work for us. And we need to make sure that they improve the efficiency and effectiveness of the way we do things.

3.

From the Government’s perspective it is important that we embrace new technologies to improve the way in which we deliver our services. At the same time, we need to provide a legal framework that enables electronic commerce to flourish while ensuring adequate protection for transactions.

4.

New technologies - Government leading the way User confidence has been identified as a critical factor in the uptake of electronically delivered services, especially e-commerce. As a result, privacy protection and information security can no longer be seen as a costly add-on. They must be fundamental parts of government and business activity.

5.

By adopting new technologies, the Government is taking the lead in turning new forms of service delivery into everyday forms of service delivery. 6.

By doing this we are encouraging the growth of e-commerce and the Internet. We are alleviating some of the trepidation that consumers have about the Internet and e-commerce. And we are giving the business community the impetus and the confidence to use new technologies in their dealings with the Government and with consumers.

7.

Government Online

To take this leading role it is absolutely essential that the Government is aware of the possibilities of the online environment. We must have a vision and strategies to capitalise on these possibilities.

8.

The Prime Minister outlined Government Online strategy as part of the 1997 Investing for Growth Statement. 9.

This strategy aims to create an environment where virtually all government services are available around the clock to anyone. The target we have set ourselves is to bring all appropriate Government services online by the end of the year.

10.

Currently 17 per cent of government agencies have all appropriate services online. And a recent survey by the National Office of the Information Economy has found that 93 percent of agencies will meet the target date. [1]

11.

Of course, putting services online does not mean that the Government is looking to do away with the traditional methods of service delivery. We do not intend to replace people with machines. Government customers will still be able to access and use services in a face to face way. The only difference is that the additional option of dealing with government electronically now exists.

12.

A key benefit of online services will be the access they provide to people living in rural remote and regional parts of the country. Time and distance often make it impractical to access all services on a face to face basis -online services will help bridge this isolation.

13.

Australian Law Online In my portfolio, we are making the law easier to access through our Australian Law Online initiative. This initiative consolidates government legal services and information into one convenient and easy to access website. This will improve the accessibility of the law and legal services to all Australians. And it is a practical example of the Government using the Internet to serve the community.

14.

From today, the Australian Law Online website will provide a comprehensive directory of legal information provided by all levels of government. It provides links to 750 government organisations. It also includes links to the Family Law Online website and information about the Family Law Hotline and the Regional Law Hotline, which opens for business next week.

15.

They provide information, legal materials and services that are focussed on serving the needs of the public in a clear and straightforward way. They give people in rural and remote Australia better access to government information. And they provide a single point of contact for information on legal and family law matters.

16.

But to my mind the greatest benefit will be that the equity of our justice system will be enhanced. 17. Lack of information, lack of advice and lack of direction are some of the greatest obstacles

to achieving fair and just outcomes from our legal system. 18.

Australian Law Online addresses these problems. It is a practical example of how the Internet and new technologies can improve the delivery of government services and to deliver tangible benefits for the community.

19.

I expect that Australian Law Online will receive up to 30,000 hits every month. Since their launch last June the success of the Family Law Online website and the Family Law Hotline has been heartening. The website has recorded over half a million hits and the hotline has provided over the phone information, advice and support to nearly 2000 people.

20.

Other Government agencies It has been left up to individual departments and agencies to put their services online. But common standards and requirements have been set across government. 21.

This has been done to avoid a situation where different government agencies have vastly different requirements. Our objective is to make it easier, not harder, to deal with the Government.

22.

There are clearly a number of legal implications that arise from the development of the online environment. 23. Electronic Transactions Act The Electronic Transactions Act 1999 was developed with the specific objective of facilitating electronic transactions by Government, business and the community. 24. It means that a person can now use an electronic communication to satisfy Commonwealth legal requirements when information is provided to or requested from departments and agencies. These requirements include that information be provided in writing, that information be signed, that documents be produced and that information and documents be retained, unless an exemption applies.[2]

25.

For example, Freedom of Information applications can now be lodged electronically. And procedures are being established to allow electronic payments of the FOI fee. 26. It is important to note that several laws are exempt from the Act.

These exemptions come into effect in situations where for policy reasons, technical requirements or law enforcement issues, it would not have been appropriate for electronic communications to be used.[3]

27.

For example, it is important that agencies such as the National Crime Authority have the power obtain original paper copies of written documents for investigative purposes. We cannot allow this power to be compromised by permitting the production of these documents electronically. To do so may allow vital physical evidence, such as erasures or additions to documents, to be hidden. In this situation an exemption for certain specified powers in the National Crime Authority Act 1984 was clearly appropriate.

28.

The exemptions to the Electronic Transactions Act were not made lightly. We did not want a situation to develop where exemptions would dilute the effectiveness of the online delivery of services.

29.

On balance I think we have succeeded in ensuring that the risks in moving to an electronic environment have been appropriately managed. At the same time I believe that the commitment to deliver services online has not been compromised.

30.

Electronic Transactions Act - Contract Formation From a government perspective it is important that Departments and agencies know how the use of electronic communications will impact upon their day to day business. 31.

One of the most important examples that forms a large part of the Government’s dealing with business is the use of contracts and tenders. 32. However, contracts are formed under the relevant laws of the States and Territories.

This means that the Commonwealth’s Act does not deal with the formation of contracts electronically. It is necessary to look to the laws of the States and Territories.

33.

The States and Territories have supported the Commonwealth Electronic Transactions Act by agreeing to introduce uniform national legislation that is substantially identical to the Commonwealth’s Act.[4] Seven of the eight jurisdictions have now done so.

34.

The State and Territory electronic transactions legislation makes it clear that contracts can be formed electronically. However, the State and Territory legislation does not impose any obligation on parties to accept electronic communications. This is a matter for negotiation between the parties.

35.

This means that Commonwealth Departments and agencies are not compelled to enter contracts electronically. They are in the same position as any other party to a contract. They are able to decide whether using electronic contracts is appropriate and have the power to decline to do so.

36.

Where they do decide to use electronic contracts, these should be subjected to the same kind of rigorous scrutiny as that undergone by a paper contract. However, there is a number of important issues raised by the electronic nature of the contract that will require careful consideration.

37.

It is particularly important that you know who you are dealing with and that you are sure you can attribute an electronic communication to the other contracting party. [5] Similarly, departments and agencies should be careful to ensure that an electronic

signature is sufficiently reliable for the purposes of any future action, including court action, that may be required to enforce the contract. A more technical point that may require consideration where frequent communications between the parties will occur is the rules on time and place of dispatch and receipt of electronic communications.[6]

38.

Privacy Privacy is becoming an increasingly critical issue in the online environment. The provision of services online raises privacy issues both for the public and private 39.

sectors.

Under the Privacy Act 1988, Commonwealth departments and agencies are required to meet certain standards when they deal with information they hold about an individual. These standards are known as the Information Privacy Principles.

40.

The Privacy Amendment (Private Sector) Act 2000 contains similar standards for the private sector, called the National Privacy Principles. 41. Both sets of standards regulate the way personal information is collected, stored, used and

disclosed in the on-line and off-line environment. Both allow individuals to gain access to their own personal information. And they grant individuals the ability to correct information about them if it is wrong.

42.

But the standards are not exactly the same. The public sector requirements set a higher benchmark. So agencies outsourcing to private sector organisations will need to be careful to ensure that contracted service providers comply with the Information Privacy Principles.

43.

The value of the privacy legislation is that it increases the public's confidence in transacting online. 44. Agencies are required to be open about how they handle and protect personal information.

Of particular importance is the presence of an online privacy statement that details what personal information is collected on an agency's website, and how that information will be used and disclosed.

45.

I am aware that an audit of Government websites by the Privacy Commissioner has found that 69% of agencies have a privacy statement. In other words, one in three did not. This level of compliance is disappointing. At a time that we are asking businesses to implement privacy protective standards, Government agencies must lead the way in meeting privacy standards. There can be no excuses for Government agency websites not providing the information required by the legislation. Those agencies that have been dragging the chain have been given the message in no uncertain terms they must meet their privacy commitments in full. In fact, I understand that since the audit was conducted many agencies have already taken steps to remedy the problems. The Privacy Commissioner has indicated that if the audit were undertaken today the level of compliance would be higher.

46.

The fact that some public sector agencies have been tardy in getting their websites in order does not call into question the importance of privacy legislation. Government and private sector organisations must recognise that good privacy is good business. In an environment where the public is becoming increasingly privacy savvy, both the public and private sectors should make privacy an intrinsic part of their business strategy. Those that do not, do so at their own peril.

47.

Protective Security Manual While we are working hard to ensure that Australia gets its privacy laws right, it is 48.

important to remember that this will amount to nothing if the systems within which information is stored are open to compromise.

For example, the credibility of privacy protection can be brought into question by security breaches. A public commitment to use personal information in accordance with your privacy policy is of limited use if your databases are easily accessible to hackers. This is particularly the case where information that may be targeted by hackers also contains personal information. Protection of credit card details is another obvious example of how the underlying principles of privacy and security overlap.

49.

It is essential that Government agencies remember that the appropriate protection of information is just as important in the electronic environment as it currently is when dealing with paper records.

50.

The Protective Security Manual for Australian government agencies sets minimum standards for the protection of all official resources, people and information. The guidelines provide that information contained in government systems must be handled with due care and in accordance with authorised procedures.

51.

In essence the manual aims to ensure that information is only made available to people with a legitimate need to fulfil their official duties or to meet clearly defined contractual responsibilities. Put simply, if someone does not need to know certain information in order to carry out his or her duties, regardless of their level of security clearance, or rank or position within the organisation, then they should not be given access to it.

52.

Role of the AGS The move to providing services and conducting procurement activities online, presents challenges of all kinds. It also presents a new range of legal issues and concerns that Departments and agencies will need to be aware of and deal with.

53.

Getting the right advice is exceptionally important. To a significant extent, the success and effectiveness of the Government’s online strategy depends on the existence of informed and effective legal advice that can be drawn upon to manage the transition to the online environment.

54.

For example, my Department is currently drafting guidelines on the implications of monitoring employee email and Internet usage. 55. The AGS Government Online Legal Issues Team has been assembled to deal specifically

with the legal needs of Departments and agencies in this area. 56. The team comprises lawyers with a good understanding of Commonwealth legal and

policy issues associated with the online environment. 57. The topics covered at today’s conference give you a good insight into some of the issues

that agencies are confronting in this new environment. Issues such as electronic tendering and contracting, the use of websites as a medium to deliver services and interact with suppliers, the Electronic Transactions Act, use of e-mail in agencies and the brave new world of public key technology are all important to the

58.

success of the Government Online strategy.

It is critical that these issues are dealt with properly. They will continue to be important to the future development of the information economy in Australia. It is likely that the use of Public Key Technology, for example, will become a vital tool that will assist the delivery of more government services electronically. This new and complex technology brings with it legal issues such as the appropriate allocation of liability is a matter requiring careful consideration. To provide advice on these issues, you require lawyers who have proven their expertise in these evolving areas of new technology. The AGS Online Legal Issues Team has that expertise.

59.

I am confident you will find the topics dealt with today to be of assistance to you in meeting your online objectives. And if you need further advice, the AGS has the expertise to help.

60.

Conclusion The challenge we face is to harness the power of new technologies to improve the way we serve the public. By providing appropriate services online we can make a lasting and positive impact on the lives of ordinary Australians. And we can take the lead in facilitating the electronic commerce and consumer confidence in it.

61.

The AGS is available to help you with online legal issues. And I urge you to draw upon their expertise. 62. Welcome to this conference and I am sure you will find the day’s proceeding both

interesting and informative.

 

  [1] National Office of the Information Economy, Government Online Survey, Round 3 Results, March 2001.

[2] A requirement to give information in writing (section 9); a requirement to provide a signature (section 10); a requirement to produce a document (section 11); and a requirement to record or retain information (section 12) of the Act.

[3] See Schedule 1 of the Electronic Transactions Regulations 2000. The Regulations contain 158 items identifying 101 laws of the Commonwealth which are exempted from the operation of the Act. This includes both legislation and subordinate legislation. There are approximately 1,250 Commonwealth acts on the statute books and a much greater number of regulations and other types of subordinate legislation in existence. Therefore the total number of Acts exempted are actually only a small percentage of the total number of Commonwealth laws.

 

63.

[4] New South Wales

The Electronic Transactions Bill 2000 was introduced and passed through the NSW Parliament on 14 April 2000. It received Royal Assent on 3 May 2000 and will commence by proclamation. A copy of the Bill can be obtained by following the 'NSW Legislation', 'Acts' and '2000' links from the NSW Parliamentary Counsel's Office website.

Victoria The Electronic Transactions Bill 2000 was introduced into the Victorian Parliament on 6 April 2000. The Act was given Royal Assent on 16 May 2000 and came into operation on 1 September 2000.

South Australia The Electronic Transactions Act 2000 was introduced into the South Australian Parliament in 2000 and was assented to on 7 December 2000 but is not yet in force. A copy of the Act can be located by following the ‘legislation’ link on the website of the Parliament of South Australia at www.sacentral.sa.gov.au/government/parliament_sa.

Tasmania The Electronic Transactions Bill 2000 was introduced into the Tasmanian Parliament and passed in 2000 but is not yet fully in force. A Copy of the legislation is available at http://www.thelaw.tas.gov.au/search/ 

Queensland The Electronic Transactions (Queensland) Bill 2000 was introduced into the Queensland Parliament on 9 November 2000, however it lapsed when the State election was called last year. The Electronic Transactions (Queensland) Bill 2001 was introduced into the Queensland Parliament on 3 April 2001 and was passed during the 50th session. A copy of the Legislation and the Explanatory Notes can be located by following the links to "Bills" for the 50th Parliament on the Office of the Queensland Parliamentary Counsel’s website at www.legislation.qld.gov.au.

Western Australia The Electronic Transactions Bill 2000 was introduced into the Western Australia Parliament and had its second reading in the Legislative Council on 6 September 2000. The Bill lapsed when the State election was called and has not been reintroduced. . A copy of the Bill can be located by following the link to ‘bills’ on the Parliament of Western Australia website at www.parliament.wa.gov.au/parliament/home.nsf .

Northern Territory The Electronic Transactions (Northern Territory) Bill was introduced into the Northern Territory Parliament and was read for the third time on 30 November 2000. The Act commenced on 13 June 2001. A copy of the act may be obtained from the Northern Territory Government site at http://www.nt.gov.au/lant/hansard/hansard.shtml. 

Australian Capital Territory The Electronic Transactions (Australian Capital Territory) Bill was introduced into the ACT Legislative Assembly on 18 October 2000 and was passed, without amendment, on

15 February 2001.

[5] Section 15 of the Act simply restates the common law rule that a person will only be bound by the electronic communication if in fact the electronic communication was sent by that person or with their authority. As the Act permits parties to agree to vary these rules, it may be appropriate to investigate the best options for a particular contract.

[6] As set out in Section 14 of the Act, parties are permitted to agree to different rules to meet their particular needs.

 

 

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