Legal issues - Australia Drags Its Feet On E-commerce Law

Australia is well behind the United States in developing a legal environment which will promote and facilitate electronic trading on a global scale, according to technology and communications lawyer Anne Trimmer.

Trimmer, a partner with national law firm Minter Ellison, said that there were two areas in which Australia was dragging its feet and failing to take a leadership role.

"The first involves the Electronic Transactions Act, a Commonwealth law that came into force on 15 March," Trimmer said.

"At best, that Act was a minimalist first step into the world of e-commerce. This is especially so when that law is compared with the Electronic Signatures in Global and National Commerce Act which President Clinton signed into law on 30 June," she said.

"The American legislation sets the framework for international e-commerce transactions by embracing provisions which promote the worldwide acceptance of electronic signatures," Trimmer said.

"Furthermore, the US law requires the American government to reduce or eliminate any impediments which may discourage the commercial world from using such signatures," she said.

The principles underpinning the US law to which Trimmer referred include:the removal of paper-based obstacles to electronic transactions based on the UNCITRALModel Lawthe right of parties to a transaction to determine appropriate authentication technologies and implementation models for their transactions with the assurance that the technologies and implementation models will be recognised and enforcedthe right of parties to prove in court or other proceedings that their authenticationapproaches and transactions are valid, anda non-discriminatory approach to electronic signatures and authentication methods used in other countries.

"By encompassing only the first of these four principles, the Australian Act falls well short of providing a strong basis for a fully functioning global e-commerce environment," Trimmer said.

"This means that there is now a significant gap between the Australian and American legislation in an area where it is obvious that complementary approaches are called for," she said.

Trimmer said that the other area in which Australia was falling behind was the failure by four States and both Territories to enact legislation that mirrored the Electronic Transactions Act.

"Despite any deficiencies it may have, this Act needs to be supported by corresponding legislation in each State and Territory," Trimmer said.

"To date, only New South Wales and Victoria have enacted that legislation and, until the rest follow suit, the existence of the Federal Act is limited only to dealings with Commonwealth agencies.

"These two factors combine to create a risk that we will end up being out of step with those laws which will eventually govern how e-trade is conducted internationally.

"In addition to giving the States and Territories a hurry up to get their legislation in place, the Commonwealth must consider additional action to address the outstanding areas of international e-commerce identified in the US Act so that we do not end up poles apart from the rest of the world's major trading nations. If that doesn't happen, our ability to participate in global e-trade will be severely restricted," Trimmer said.

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