Electronic Transactions Amendment Act 2010 (TAS)

Electronic Transactions Amendment Act 2010

An Act to amend the Electronic Transactions Act 2000

[Royal Assent 28 October 2010]

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

1Short titleThis Act may be cited as the Electronic Transactions Amendment Act 2010 . 2CommencementThe provisions of this Act commence on a day or days to be proclaimed. 3Principal ActIn this Act, the Electronic Transactions Act 2000 is referred to as the Principal Act. 4Section 3 amended (Interpretation) Section 3 of the Principal Act is amended as follows: (a) by inserting the following definitions before the definition of consent : addressee of an electronic communication means a person who is intended by the originator to receive the electronic communication, but does not include a person acting as an intermediary with respect to the electronic communication; automated message system means a computer program or an electronic or other automated means used to initiate an action or respond to data messages in whole or in part, without review or intervention by a natural person each time an action is initiated or a response is generated by the system; (b) by omitting the definition of place of business and substituting the following definitions: originator of an electronic communication means a person by whom, or on whose behalf, the electronic communication has been sent or generated before storage, if any, but does not include a person acting as an intermediary with respect to the electronic communication; performance of a contract includes non-performance of the contract; place of business means – (a) in relation to a person, other than an entity referred to in paragraph (b) , a place where the person maintains a non-transitory establishment to pursue an economic activity other than the temporary provision of goods or services out of a specific location; or (b) in relation to a government, an authority of a government or a non-profit body, a place where any operations or activities are carried out by that government, authority or body; (c) by omitting the definition of transaction and substituting the following definition: transaction includes – (a) any transaction in the nature of a contract, agreement or other arrangement; and (b) any statement, declaration, demand, notice or request, including an offer and the acceptance of an offer, that the parties are required to make or choose to make in connection with the formation or performance of a contract, agreement or other arrangement; and (c) any transaction of a non-commercial nature. 5Section 4A insertedAfter section 4 of the Principal Act , the following section is inserted in Part 1: 4AExemptions (1)  The regulations may provide that all or specified provisions of this Act do not apply – (a) to transactions, requirements, permissions, electronic communications or other matters specified, or of classes specified, in the regulations for the purposes of this section; or (b) in circumstances specified, or of classes specified, in the regulations for the purposes of this section. (2)  The regulations may provide that all or specified provisions of this Act do not apply to specified laws of this jurisdiction. 6Section 5 amended (Validity of electronic transactions) Section 5 of the Principal Act is amended by omitting subsections (3) and (4) . 7Section 7 amended (Signatures) Section 7 of the Principal Act is amended as follows: (a) by omitting from subsection (1)(a) "approval of" and substituting "intention in respect of"; (b) by omitting paragraph (b) from subsection (1) and substituting the following paragraph: (b) the method used was either – (i) as reliable as appropriate for the purpose for which the electronic communication was generated or communicated, in the light of all the circumstances, including any relevant agreement; or (ii) proven in fact to have fulfilled the functions described in paragraph (a) , by itself or together with further evidence; and (c) by omitting from subsection (2)(c) "approval of" and substituting "intention in respect of"; (d) by inserting the following subsection after subsection (2) : (3)  The reference in subsection (1) to a law that requires a signature includes a reference to a law that provides consequences for the absence of a signature. 8Section 10 repealed Section 10 of the Principal Act is repealed. 9Section 11 substituted Section 11 of the Principal Act is repealed and the following sections are substituted: 11Time of dispatch (1)  For the purposes of a law of this jurisdiction, unless otherwise agreed between the originator and the addressee of an electronic communication, the time of dispatch of the electronic communication is – (a) the time when the electronic communication leaves an information system under the control of the originator or of the party who sent it on behalf of the originator; or (b) if the electronic communication has not left an information system under the control of the originator or of the party who sent it on behalf of the originator, the time when the electronic communication is received by the addressee. (2)  Subsection (1) applies even though the place where the information system supporting an electronic address is located may be different from the place where the electronic communication is taken to have been dispatched under section 11B . 11ATime of receipt (1)  For the purposes of a law of this jurisdiction, unless otherwise agreed between the originator and the addressee of an electronic communication – (a) the time of receipt of the electronic communication is the time when the electronic communication becomes capable of being retrieved by the addressee at an electronic address designated by the addressee; or (b) the time of receipt of the electronic communication at another electronic address of the addressee is the time when both – (i) the electronic communication has become capable of being retrieved by the addressee at that address; and (ii) the addressee has become aware that the electronic communication has been sent to that address. (2)  For the purposes of subsection (1) , unless otherwise agreed between the originator and the addressee of the electronic communication, it is to be assumed that the electronic communication is capable of being retrieved by the addressee when it reaches the addressee’s electronic address. (3)  Subsection (1) applies even though the place where the information system supporting an electronic address is located may be different from the place where the electronic communication is taken to have been received under section 11B . 11BPlace of dispatch and place of receipt (1)  For the purposes of a law of this jurisdiction, unless otherwise agreed between the originator and the addressee of an electronic communication – (a) the electronic communication is taken to have been dispatched at the place where the originator has its place of business; and (b) the electronic communication is taken to have been received at the place where the addressee has its place of business. (2)  For the purposes of the application of subsection (1) to an electronic communication – (a) a party’s place of business is assumed to be the location indicated by that party, unless another party demonstrates that the party making the indication does not have a place of business at that location; and (b) if a party has not indicated a place of business and has only one place of business, it is to be assumed that that place is the party’s place of business; and (c) if a party has not indicated a place of business and has more than one place of business, the place of business is that which has the closest relationship to the underlying transaction, having regard to the circumstances known to or contemplated by the parties at any time before or at the conclusion of the transaction; and (d) if a party has not indicated a place of business and has more than one place of business, but paragraph (c) does not apply, it is to be assumed that the party’s principal place of business is the party’s only place of business; and (e) if a party is a natural person and does not have a place of business, it is to be assumed that the party’s place of business is the place of the party’s habitual residence. (3)  A location is not a place of business merely because it is – (a) where equipment and technology supporting an information system used by a party are located; or (b) where that information system may be accessed by other parties. (4)  The sole fact that a party makes use of a domain name or electronic mail address connected to a specific country does not create a presumption that its place of business is located in that country. 10Section 12 amended (Attribution of electronic communications) Section 12 of the Principal Act is amended by omitting subsections (3) and (4) . 11Part 2A insertedAfter section 12 of the Principal Act , the following Part is inserted: PART 2AAdditional Provisions Applying to Contracts Involving Electronic Communications 12AApplication and operation of this Part This Part applies to the use of electronic communications in connection with the formation or performance of a contract between parties where the proper law of the contract is (or would on its formation be) the law of this jurisdiction, and so applies – (a) whether some or all of the parties are located within Australia or elsewhere; and (b) whether the contract is for business purposes, for personal, family or household purposes, or for other purposes. 12BInvitation to treat regarding contracts (1)  A proposal to form a contract made through one or more electronic communications that – (a) is not addressed to one or more specific parties; and (b) is generally accessible to parties making use of information systems – is to be considered as an invitation to make offers, unless it clearly indicates the intention of the party making the proposal to be bound in case of acceptance. (2)  Subsection (1) extends to proposals that make use of interactive applications for the placement of orders through information systems. 12CUse of automated message systems for contract formation – non-intervention of natural person A contract formed by – (a) the interaction of an automated message system and a natural person; or (b) the interaction of automated message systems – is not invalid, void or unenforceable on the sole ground that no natural person reviewed or intervened in each of the individual actions carried out by the automated message systems or the resulting contract. 12DError in electronic communications regarding contracts (1)  This section applies in relation to a statement, declaration, demand, notice or request, including an offer and the acceptance of an offer, that the parties are required to make or choose to make in connection with the formation or performance of a contract. (2)  If – (a) a natural person makes an input error in an electronic communication exchanged with the automated message system of another party; and (b) the automated message system does not provide the person with an opportunity to correct the error –the person, or the party on whose behalf the person was acting, has the right to withdraw the portion of the electronic communication in which the input error was made if – (c) the person, or the party on whose behalf the person was acting, notifies the other party of the error as soon as possible after having learned of the error and indicates that he or she made an error in the electronic communication; and (d) the person, or the party on whose behalf the person was acting, has not used or received any material benefit or value from the goods or services, if any, received from the other party. (3)  The right of withdrawal of a portion of an electronic communication under this section is not of itself a right to rescind or otherwise terminate a contract. (4)  The consequences (if any) of the exercise of the right of withdrawal of a portion of an electronic communication under this section are to be determined in accordance with any applicable rule of law. 12EApplication of Act in relation to contracts (1)  Subject to subsection (2) , the provisions of sections 5 , 11 , 11A and 11B apply to – (a) a transaction constituted by or relating to a contract; or (b) an electronic communication relating to the formation or performance of a contract – in the same way as they apply to a transaction or electronic communication referred to in Part 2 , and so apply as if the words "For the purposes of a law of this jurisdiction" and "under a law of this jurisdiction" were omitted. (2)  However, this Part (including subsection (1) ) does not apply to or in relation to a contract to the extent that – (a) Part 2 would of its own force have the same effect as this Part if this Part applied; or (b) a law of another State or a Territory (that is in substantially the same terms as Part 2 ) would of its own force have the same effect as this Part if this Part applied. 12Section 13A insertedAfter section 13 of the Principal Act , the following section is inserted in Part 3: 13ATransitional provisions – Electronic Transactions Amendment Act 2010 (1)  Regulations made under this Act before the commencement of section 4A and in force immediately before that commencement continue in force as if that section had been in force when they were made. (2)  Subject to subsection (3)  – (a) section 12B extends to proposals made before the commencement date; and (b) section 12C extends to actions carried out before the commencement date; and (c) section 12D extends to statements, declarations, demands, notices or requests, including offers and the acceptance of offers, made or given before the commencement date. (3)  Subsection (2) and Part 2A do not apply in relation to contracts formed before the commencement date. (4)  In subsections (2) and (3)  – commencement date means the date of commencement of Part 2A . 13Repeal of ActThis Act is repealed on the ninetieth day from the day on which all of the provisions of this Act commence.

[Second reading presentation speech made in:

House of Assembly on 21 SEPTEMBER 2010

Legislative Council on 14 OCTOBER 2010]