On the House: Transaction equality

The Government's new Electronic Transactions Bill is meant to make all communications equal under the lawUnless the Federal Government's timetable goes drastically wrong, some time soon its revised Electronic Transactions Bill should come into law.

Designed to provide the Howard Government's much-vaunted light handed regulatory framework -- the one it says will promote the growth of electronic commerce and give certainty to electronic businesses -- the Bill has provided a blueprint for a national uniform legislative scheme for electronic commerce in Australia.

The Commonwealth released its Draft legislation for public comment at the end of January and at the time of writing was revising the draft following a process of public consultation.

Basically the draft aims to give legal effect to any communication made via electronic means, therefore putting electronic commerce and paper based commerce on the same legal footing and ensuring no discrimination between different forms of technology. It is largely based on the Model Law on Electronic Commerce prepared by the United Nations Commission on International Trade Law (UNCITRAL).

Subject to certain minimum requirements, it will allow electronic communications to satisfy legal requirements for writing, signature, production of documents and retention of information and documents.

Whether you agree with those who have criticised the Bill as inadequate for the needs of e-commerce or not, IT professionals must be aware of the fact that the Bill has legal ramifications for e-commerce transactions. Those likely to be affected have a responsibility to make themselves fully acquainted with those ramifications as soon as the Bill has passed.

Once passed the Bill should ensure that for the purposes of a Commonwealth law, a transaction is not invalid merely because it took place by means of one or more electronic communications. This extends to providing a signature, giving information in writing, producing a document, recording information and retaining a document by electronic means.

The Bill intends to give equal treatment to both paper-based and electronic transactions, and aims to be technology neutral. And it provides rules to deal with time and place of dispatch and receipt of electronic communications and authentication of electronic communications.

If passed, the implementation of the Bill will be a two-step process -- prior to 1 July 2001 the Bill will apply to only those Commonwealth laws to be specified in the Regulations. After that date the Bill will apply to all Commonwealth laws, unless specifically excluded.

Many lawyers agree the Bill is consistent with the government's policy of being "light-handed" and shouldn't interfere with commercial and contractual relationships between people. But they also warn the Bill could see online actions carrying legal ramifications.

In particular, the act of an electronic signature will, for the first time, become a legally significant act.

Like any change, the Electronic Transactions Bill offers business some tremendous opportunities for cost savings and provides more confidence to those venturing into e-commerce's muddy waters for the first time, but it could also introduce new business risks. IT professionals need to be aware of both.

Sue Bushell is a Canberra-basedpolitical correspondent

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