EXPLANATORY STATEMENT
Select Legislative Instrument 2007 No. 111
Electronic Transactions Act 1999
Electronic Transactions Amendment Regulations 2007 (No. 1)
Section 16 of the Electronic Transactions Act 1999 (the ET Act) provides that the Governor-General may make regulations prescribing matters required or permitted by that Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to that Act.
The ET Act provides a regulatory framework to facilitate the use of electronic transactions by enabling requirements under Commonwealth law to be met in an electronic form. Section 13, subsection 14(7) and subsection 15(4) of the ET Act provide that regulations may provide exemptions from the operation of the ET Act.
Previously, under item 25 of the table in Schedule 1 to the Electronic Transactions Regulations 2000 (the Principal Regulations), Part XV of the Electoral Act was exempted from subsection 8(1), Division 2 of Part 2 and sections 14 and 15 of the ET Act. This meant that a person could not meet the requirements in Part XV of the Commonwealth Electoral Act 1918 (Electoral Act), such as meeting a requirement to provide a signature, in an electronic form.
The purpose of the Regulations is to remove the exemption from the operation of the ET Act in the Principal Regulations that applied to sections 184 and 184A in Part XV of the Electoral Act. The removal of the exemption means that a person may now submit an application for a postal vote, or an application to register as a general postal voter, by faxing or by scanning and emailing the application form to the Australian Electoral Commission (AEC).
The amendments follow recommendations made by the Joint Standing Committee on Electoral Matters (JSCEM) in its Report of the Inquiry into the Conduct of the 2004 Federal Election and Matters Related Thereto. Recommendation 9 relevantly reads:
The Committee recommends that the Electronic Transaction Regulations 2000 be amended to permit electors to submit an application for a postal vote or an application to become a general postal voter, by scanning and e-mailing the appropriate form to the AEC.
Recommendation 11 relevantly reads:
The Committee recommends that the AEC amend the General Postal Voter application form to indicate that the completed form can be returned to the AEC by fax.
In its Response to the Committee’s Report, the Government supported-in-principle Recommendation 9 and supported Recommendation 11.
The Regulations give effect to the Government’s Response to these two recommendations by the JSCEM. As it is intended that a person would only be able to fax or scan and email their completed application forms to the AEC, only sections 184 and 184A would be subject to the operation of the ET Act. The remaining sections of Part XV of the Electoral Act continue to be exempt from the ET Act.
The ET Act does not specify any conditions that need to be satisfied before the power to make the proposed Regulations may be exercised.
The Regulations commence on the day after they are registered.
Consultation in relation to the amendments occurred during the Inquiry conducted by the JSCEM, which held 11 public hearings and received over 200 written submissions.
Authority: Section 16 of
the Electronic Transactions Act 1999
Overview
The Electronic Transactions Amendment Regulations 2007 (No. 1) were introduced to modify the existing Electronic Transactions Regulations 2000, thereby updating the regulatory framework established by the Electronic Transactions Act 1999. This legislative instrument was enacted to address the need for modernising the process by which certain electoral applications can be submitted, in line with the increasing use of electronic communication methods. The Regulations were made under the authority of section 16 of the Electronic Transactions Act 1999, which empowers the Governor-General to make regulations necessary for the implementation of the Act. The policy objective of these amendments was to facilitate greater convenience and efficiency in the electoral process by allowing electors to submit applications for postal votes and general postal voter registrations electronically, thus aligning with recommendations made by the Joint Standing Committee on Electoral Matters. This change aimed to streamline the electoral process while ensuring that electronic submissions are treated with the same legal validity as paper-based submissions.
Scope and Application
The Electronic Transactions Amendment Regulations 2007 (No. 1) amend the Electronic Transactions Regulations 2000 to remove the exemption that prevented certain electoral processes from being completed electronically, thereby allowing the use of electronic transactions for specific activities under the Electoral Act 1918. This amendment applies to individuals who wish to submit an application for a postal vote or an application to register as a general postal voter electronically by faxing or emailing their completed application forms to the Australian Electoral Commission (AEC). These Regulations are applicable to all individuals and entities within the Commonwealth of Australia that wish to take advantage of this electronic submission method for specified sections of the Electoral Act, namely sections 184 and 184A of Part XV. The remaining sections of Part XV of the Electoral Act continue to be exempt from the operation of the Electronic Transactions Act 1999. The Regulations were made under the authority provided by section 16 of the Electronic Transactions Act 1999, which allows for the making of regulations to prescribe matters necessary for the Act's implementation. The changes commenced on the day after the Regulations were registered, and consultation on the amendments was undertaken during the Inquiry into the Conduct of the 2004 Federal Election and Matters Related Thereto conducted by the Joint Standing Committee on Electoral Matters.
Key Provisions
The main operative sections of these Regulations relate to the amendments to the Electronic Transactions Regulations 2000, specifically concerning the removal of exemptions for certain sections of the Electoral Act (section 1). These amendments allow for the electronic submission of applications for postal votes and general postal voter registrations (section 2). The changes aim to facilitate the use of electronic transactions by enabling electors to submit their applications via fax or by scanning and emailing their forms to the Australian Electoral Commission (section 2). The Regulations remove the existing exemption that prevented the application of the Electronic Transactions Act 1999 (ET Act) to sections 184 and 184A of the Electoral Act, thus permitting electronic submissions for postal vote applications and general postal voter registrations (section 3).
These Regulations impose specific obligations on parties involved in the electoral process, particularly on the Australian Electoral Commission (AEC). The AEC is required to accept applications for postal votes and general postal voter registrations submitted electronically via fax or scanned and emailed forms (section 2). This obligation aligns with the recommendations of the Joint Standing Committee on Electoral Matters (JSCEM) and the government's response to these recommendations. The AEC must ensure that the necessary systems and processes are in place to receive and process these electronic submissions effectively and securely (section 2).
The Regulations do not explicitly outline specific offences, penalties, or consequences for breach. However, any failure by the AEC to accept valid electronic submissions as permitted by these Regulations could potentially lead to legal challenges or administrative penalties. The ET Act itself provides a framework for the validity and enforceability of electronic transactions, ensuring that any submitted forms meet the legal requirements for signatures and other necessary elements (section 184 and 184A of the Electoral Act). The absence of explicit penalties in these Regulations suggests that compliance with the ET Act's provisions for electronic transactions will be the primary focus for ensuring adherence to the law.