Year 2000 Information Disclosure Act 1999 (TAS)

Year 2000 Information Disclosure Act 1999

An Act to encourage the voluntary disclosure and exchange of information about year 2000 computer problems and remediation efforts and for other purposes

[Royal Assent 26 April 1999]

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:

PART 1Preliminary1Short titleThis Act may be cited as the Year 2000 Information Disclosure Act 1999 . 2Commencement (1)  This Act commences on a day to be proclaimed. (2)  A proclamation under subsection (1) may, if the proclamation so provides, have retrospective effect from the day on which the Commonwealth Act commenced. 3Interpretation (1)  In this Act, unless the contrary intention appears – Commonwealth Act means the Year 2000 Information Disclosure Act 1999 of the Commonwealth; corresponding law means a law of the Commonwealth, another State or a Territory that corresponds to this Act; original Year 2000 disclosure statement has the meaning given by section 6 ; republished Year 2000 disclosure statement has the meaning given by section 7 ; Year 2000 disclosure statement has the meaning given by section 5 . (2)  Words and expressions used in the Commonwealth Act and in this Act have the same respective meanings in this Act as they have in the Commonwealth Act except to the extent that the context or subject matter otherwise indicates or requires. 4Crown to be boundThis Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities. PART 2Year 2000 disclosure statements5Year 2000 disclosure statementsFor the purposes of this Act, a Year 2000 disclosure statement is – (a) an original Year 2000 disclosure statement (see section 6 ); or (b) a republished Year 2000 disclosure statement (see section 7 ). 6Original Year 2000 disclosure statements (1) For the purposes of this Act, an original Year 2000 disclosure statement is a statement that – (a) relates solely to any or all of the following: (i) Year 2000 processing; (ii) the detection of problems relating to Year 2000 processing; (iii) the prevention of problems relating to Year 2000 processing; (iv) the remediation of problems relating to Year 2000 processing; (v) the consequences or implications, for the supply of goods or services, of problems relating to Year 2000 processing; (vi) contingency planning, risk management, remediation efforts or other arrangements for dealing with consequences or implications referred to in subparagraph (v) ; (vii) the consequences or implications, for the activities or capabilities of a person, of problems relating to Year 2000 processing; (viii) contingency planning, risk management, remediation efforts or other arrangements for dealing with consequences or implications referred to in subparagraph (vii) ; and (b) includes words to the effect that the statement is a Year 2000 disclosure statement for the purposes of this Act or a corresponding law; and (c) includes words to the effect that a person may be protected by this Act or a corresponding law from liability for the statement in certain circumstances; and (d) is made after the commencement of this section and before 1 July 2001; and (e) identifies the person who authorised the statement; and (f) satisfies one of the following conditions: (i) the statement is made in writing; (ii) the statement is made in a data storage device and is capable of being reproduced in writing from that device (with or without the aid of any other article or device); (iii) the statement is made by way of an electronic communication of writing. (2)  The subparagraphs of subsection (1)(a) do not limit each other. (3)  A statement is taken to comply with subsection (1)(b) and (c) if the statement includes the following words:

This statement is a Year 2000 disclosure statement for the purposes of the Year 2000 Information Disclosure Act 1999 . A person may be protected by that Act from liability for this statement in certain circumstances.

7Republished Year 2000 disclosure statementsFor the purposes of this Act, a republished Year 2000 disclosure statement is a statement that – (a) consists of the republication, retransmission, reproduction, recital or reading aloud of the whole of an original Year 2000 disclosure statement; and (b) is made after the commencement of this section and before 1 July 2001; and (c) is made – (i) orally; or (ii) in writing; or (iii) in a data storage device; or (iv) by way of an electronic communication of writing; or (v) by way of an electronic communication of speech. PART 3Protection from civil liability8Protection from civil actions (1) No civil action lies against a person for or in relation to any matter or thing arising out of, or incidental to, the making of a Year 2000 disclosure statement. (2) A Year 2000 disclosure statement is not admissible as evidence against a person in a civil action to which the person is a party. 9Exceptions (1)  The rules in section 8 do not apply to a person (the "first person") if – (a) the Year 2000 disclosure statement is false or misleading in a material particular and the first person – (i) knew that the statement was false or misleading in a material particular; or (ii) was reckless as to whether the statement was false or misleading in a material particular; or (b) all of the following conditions are satisfied: (i) the Year 2000 disclosure statement was made to another person (otherwise than in the other person’s capacity as a member of the public or of a section of the public) in connection with the formation of a contract; (ii) the other person, or a representative of the other person, is a party to the civil action; (iii) the civil action relates to the contract. (2)  The rules in section 8 do not apply to a Year 2000 disclosure statement if – (a) the Year 2000 disclosure statement was made in fulfilment of an obligation imposed under a contract; or (b) the Year 2000 disclosure statement was made in fulfilment of an obligation imposed under a law of the Commonwealth, a State or a Territory. (3)  The rules in section 8 do not apply to a civil action if – (a) all of the following conditions are satisfied: (i) the Year 2000 disclosure statement was made for the sole or dominant purpose of inducing persons to acquire goods or services identified in the statement; (ii) any of those persons acquired the goods or services as a consumer; (iii) the consumer concerned, or a representative of the consumer concerned, is a party to the civil action; (iv) the civil action relates to the goods or services acquired by the consumer; or (b) all of the following conditions are satisfied: (i) the Year 2000 disclosure statement was made for the sole or dominant purpose of inducing a particular consumer to acquire goods or services identified in the statement; (ii) the consumer acquired the goods or services; (iii) the consumer, or a representative of the consumer, is a party to the civil action; (iv) the civil action relates to the goods or services acquired by the consumer. (4)  The rules in section 8 do not apply to a civil action to the extent to which – (a) the civil action consists of proceedings for a restraining injunction or for declaratory relief; or (b) the civil action consists of proceedings instituted by a person or body under a law of the Commonwealth, a State or a Territory – (i) in the performance of a regulatory or enforcement function conferred on the person or body by such a law; or (ii) in the exercise of a regulatory or enforcement power conferred on the person or body by such a law; or (c) the civil action is an action for infringement of copyright, a trade mark, a design or a patent. (5)  The paragraphs of subsections (1) , (2) , (3) and (4) do not limit each other. (6) Section 4B of the Trade Practices Act 1974 of the Commonwealth applies for the purposes of subsection (3)(a) and (b) of this section in a corresponding way to the way in which it applies for the purposes of the Trade Practices Act 1974 of the Commonwealth. (7)  For the purposes of subsection (6) , it is to be assumed that a reference in section 4B of the Trade Practices Act 1974 of the Commonwealth to services does not include a reference to financial services (within the meaning of that Act). (8) Section 12BC of the Australian Securities and Investments Commission Act 1989 of the Commonwealth applies for the purposes of subsection (3)(a) and (b) of this section in a corresponding way to the way in which it applies for the purposes of Division 2 of Part 2 of that Act. 10False or misleading statement exception – explanatory statement to be given (1)  If a civil action is instituted against a person (the "first person") by another person (the "second person"), the first person is not entitled to plead or otherwise rely on the rule in section 8(1) unless – (a) the first person gives the second person a statement (the "explanatory statement") to the effect that the first person believes that the exception set out in section 9(1)(a) is not applicable; and (b) the explanatory statement sets out the grounds for that belief; and (c) the explanatory statement satisfies one of the following conditions: (i) the explanatory statement is made in writing; (ii) the explanatory statement is made in a data storage device and is capable of being reproduced in writing from that device (with or without the aid of any other article or device); (iii) the explanatory statement is made by way of an electronic communication of writing. (2)  If the first person gives the second person an explanatory statement as mentioned in subsection (1) , the explanatory statement is not admissible in any civil action except for the purposes of determining whether subsection (1) has been complied with. (3)  The second person may waive compliance with subsection (1) . 11False or misleading statement exception – imputed knowledge (1)  If, in any proceedings arising out of section 9(1)(a) , it is necessary to establish – (a) whether a corporation knew that a Year 2000 disclosure statement was false or misleading in a material particular; or (b) whether a corporation was reckless as to whether a Year 2000 disclosure statement was false or misleading in a material particular –it is sufficient to show that – (c) a director, employee or agent of the corporation engaged in conduct in relation to the Year 2000 disclosure statement; and (d) the director, employee or agent was, in engaging in that conduct, acting within the scope of his or her actual or apparent authority; and (e) the director, employee or agent – (i) knew that the Year 2000 disclosure statement was false or misleading in a material particular; or (ii) was reckless as to whether the Year 2000 disclosure statement was false or misleading in a material particular – as the case may be. (2)  If, in any proceedings arising out of section 9(1)(a) , it is necessary to establish – (a) whether a person other than a corporation knew that a Year 2000 disclosure statement was false or misleading in a material particular; or (b) whether a person other than a corporation was reckless as to whether a Year 2000 disclosure statement was false or misleading in a material particular –it is sufficient to show that – (c) an employee or agent of the person engaged in conduct in relation to the Year 2000 disclosure statement; and (d) the employee or agent was, in engaging in that conduct, acting within the scope of his or her actual or apparent authority; and (e) the employee or agent – (i) knew that the Year 2000 disclosure statement was false or misleading in a material particular; or (ii) was reckless as to whether the Year 2000 disclosure statement was false or misleading in a material particular – as the case may be. (3)  A reference in this section to a director includes a reference to a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth, a State or a Territory. PART 4Presumption against amendment of contracts12Presumption against amendment of contracts (1) The making of a Year 2000 disclosure statement is taken not to amend, alter or vary a contract unless – (a) both – (i) the parties to the contract have expressly agreed to the amendment, alteration or variation; and (ii) that agreement satisfies one of the conditions set out in subsection (2) ; or (b) the contract expressly provides for the amendment, alteration or variation by way of the making of a Year 2000 disclosure statement. (2)  The conditions referred to in subsection (1)(a)(ii) are as follows: (a) the agreement is made in writing; (b) the agreement is embodied in a data storage device and is capable of being reproduced in writing from that device (with or without the aid of any other article or device); (c) the agreement is made by way of one or more electronic communications of writing. PART 5Exemption from section 45 of the Competition Code13Exemption from section 45 of the Competition Code (1)  Section 45 of the Competition Code of Tasmania does not apply to or in relation to – (a) a contract or arrangement made – (i) after the commencement of this section; and (ii) before 1 July 2001; or (b) an understanding arrived at – (i) after the commencement of this section; and (ii) before 1 July 2001 – to the extent to which the contract, arrangement or understanding provides for the disclosure or exchange of information or both the disclosure and exchange of information, by any or all of the parties to the contract, arrangement or understanding, for the sole purpose of facilitating any or all of the following: (c) the detection of problems relating to Year 2000 processing; (d) the prevention of problems relating to Year 2000 processing; (e) the remediation of problems relating to Year 2000 processing; (f) awareness of the consequences or implications, for the supply of goods or services, of problems relating to Year 2000 processing; (g) contingency planning, risk management, remediation efforts or other arrangements for dealing with consequences or implications referred to in paragraph (f) ; (h) awareness of the consequences or implications, for the activities or capabilities of a person, of problems relating to Year 2000 processing; (i) contingency planning, risk management, remediation efforts or other arrangements for dealing with consequences or implications referred to in paragraph (h) . (2)  Section 45 of the Competition Code of Tasmania does not apply to or in relation to – (a) a contract or arrangement proposed to be made – (i) after the commencement of this section; and (ii) before 1 July 2001; or (b) an understanding proposed to be arrived at – (i) after the commencement of this section; and (ii) before 1 July 2001 – to the extent to which the proposed contract, arrangement or understanding would provide for the disclosure or exchange of information or both the disclosure and exchange of information, by any or all of the parties to the proposed contract, arrangement or understanding, for the sole purpose of facilitating any or all of the following: (c) the detection of problems relating to Year 2000 processing; (d) the prevention of problems relating to Year 2000 processing; (e) the remediation of problems relating to Year 2000 processing; (f) awareness of the consequences or implications, for the supply of goods or services, of problems relating to Year 2000 processing; (g) contingency planning, risk management, remediation efforts or other arrangements for dealing with consequences or implications referred to in paragraph (f) ; (h) awareness of the consequences or implications, for the activities or capabilities of a person, of problems relating to Year 2000 processing; (i) contingency planning, risk management, remediation efforts or other arrangements for dealing with consequences or implications referred to in paragraph (h) . PART 6Miscellaneous14RegulationsThe Governor may make regulations for the purposes of this Act. 15Administration of ActUntil provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990  – (a) the administration of this Act is assigned to the Premier; and (b) the department responsible to the Premier in relation to the administration of this Act is the Department of Premier and Cabinet.

[Second reading presentation speech made in:

House of Assembly on 23 MARCH 1999

Legislative Council on 30 MARCH 1999]