New South Wales Bills New South Wales Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
Electronic Transactions Amendment
Bill 2010
No , 2010
A Bill for
An Act to amend the Electronic Transactions Act 2000 and related legislation to
make further provision in respect of electronic transactions.
Clause 1 Electronic Transactions Amendment Bill 2010
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Electronic Transactions Amendment Act 2010. 3
2 Commencement 4
This Act commences on a day or days to be appointed by proclamation. 5
Page 2
Electronic Transactions Amendment Bill 2010
Amendment of Electronic Transactions Act 2000 No 8 Schedule 1
Schedule 1 Amendment of Electronic Transactions 1
Act 2000 No 8 2
[1] Section 4 Simplified outline 3
Insert at the end of section 4: 4
(2) This Act also contains provisions applying to contracts involving 5
electronic communications, including provisions (relating to the 6
internet in particular) for the following: 7
(a) an unaddressed proposal to form a contract is to be 8
regarded as an invitation to make offers, rather than as an 9
offer that if accepted would result in a contract, 10
(b) a contract formed automatically is not invalid, void or 11
unenforceable because there was no human review or 12
intervention, 13
(c) a portion of an electronic communication containing an 14
input error can be withdrawn in certain circumstances, 15
(d) the application of certain provisions of Part 2 to the extent 16
they do not apply of their own force. 17
[2] Section 5 Interpretation 18
Insert in alphabetical order in section 5 (1): 19
addressee of an electronic communication means a person who is 20
intended by the originator to receive the electronic 21
communication, but does not include a person acting as an 22
intermediary with respect to the electronic communication. 23
automated message system means a computer program or an 24
electronic or other automated means used to initiate an action or 25
respond to data messages in whole or in part, without review or 26
intervention by a natural person each time an action is initiated or 27
a response is generated by the system. 28
originator of an electronic communication means a person by 29
whom, or on whose behalf, the electronic communication has 30
been sent or generated before storage, if any, but does not include 31
a person acting as an intermediary with respect to the electronic 32
communication. 33
performance of a contract includes non-performance of the 34
contract. 35
Page 3
Electronic Transactions Amendment Bill 2010
Schedule 1 Amendment of Electronic Transactions Act 2000 No 8
[3] Section 5 (1) 1
Omit the definitions of place of business and transaction. 2
Insert instead in alphabetical order: 3
place of business means: 4
(a) in relation to a person, other than an entity referred to in 5
paragraph (b)--a place where the person maintains a 6
non-transitory establishment to pursue an economic 7
activity other than the temporary provision of goods or 8
services out of a specific location, or 9
(b) in relation to a government, an authority of a government 10
or a non-profit body--a place where any operations or 11
activities are carried out by that government, authority or 12
body. 13
transaction includes: 14
(a) any transaction in the nature of a contract, agreement or 15
other arrangement, and 16
(b) any statement, declaration, demand, notice or request, 17
including an offer and the acceptance of an offer, that the 18
parties are required to make or choose to make in 19
connection with the formation or performance of a 20
contract, agreement or other arrangement, and 21
(c) any transaction of a non-commercial nature. 22
[4] Section 6A 23
Insert after section 6: 24
6A Exemptions 25
(1) The regulations may provide that all or specified provisions of 26
this Act do not apply: 27
(a) to transactions, requirements, permissions, electronic 28
communications or other matters specified, or of classes 29
specified, in the regulations for the purposes of this 30
section, or 31
(b) in circumstances specified, or of classes specified, in the 32
regulations for the purposes of this section. 33
(2) The regulations may provide that all or specified provisions of 34
this Act do not apply to specified laws of this jurisdiction. 35
[5] Section 7 Validity of electronic transactions 36
Omit section 7 (3) and (4). 37
Page 4
Electronic Transactions Amendment Bill 2010
Amendment of Electronic Transactions Act 2000 No 8 Schedule 1
[6] Section 8 Writing 1
Omit the note at the end of the section. 2
[7] Section 9 Signatures 3
Omit "approval of" from section 9 (1) (a). 4
Insert instead "intention in respect of". 5
[8] Section 9 (1) (b) 6
Omit the paragraph. Insert instead: 7
(b) the method used was either: 8
(i) as reliable as appropriate for the purpose for which 9
the electronic communication was generated or 10
communicated, in the light of all the circumstances, 11
including any relevant agreement, or 12
(ii) proven in fact to have fulfilled the functions 13
described in paragraph (a), by itself or together with 14
further evidence, and 15
[9] Section 9 (2) (c) 16
Omit "approval of". Insert instead "intention in respect of". 17
[10] Section 9 (3) 18
Insert after section 9 (2): 19
(3) The reference in subsection (1) to a law that requires a signature 20
includes a reference to a law that provides consequences for the 21
absence of a signature. 22
[11] Section 9, note 23
Omit the note at the end of the section. 24
[12] Section 10 Production of document 25
Omit the note at the end of the section. 26
[13] Section 11 Retention of information and documents 27
Omit the note at the end of the section. 28
[14] Section 12 Exemptions from this Division 29
Omit the section. 30
Page 5
Electronic Transactions Amendment Bill 2010
Schedule 1 Amendment of Electronic Transactions Act 2000 No 8
[15] Sections 1313B 1
Omit section 13. Insert instead: 2
13 Time of dispatch 3
(1) For the purposes of a law of this jurisdiction, unless otherwise 4
agreed between the originator and the addressee of an electronic 5
communication, the time of dispatch of the electronic 6
communication is: 7
(a) the time when the electronic communication leaves an 8
information system under the control of the originator or of 9
the party who sent it on behalf of the originator, or 10
(b) if the electronic communication has not left an information 11
system under the control of the originator or of the party 12
who sent it on behalf of the originator--the time when the 13
electronic communication is received by the addressee. 14
Note. Paragraph (b) would apply to a case where the parties exchange 15
electronic communications through the same information system. 16
(2) Subsection (1) applies even though the place where the 17
information system supporting an electronic address is located 18
may be different from the place where the electronic 19
communication is taken to have been dispatched under 20
section 13B. 21
13A Time of receipt 22
(1) For the purposes of a law of this jurisdiction, unless otherwise 23
agreed between the originator and the addressee of an electronic 24
communication: 25
(a) the time of receipt of the electronic communication is the 26
time when the electronic communication becomes capable 27
of being retrieved by the addressee at an electronic address 28
designated by the addressee, or 29
(b) the time of receipt of the electronic communication at 30
another electronic address of the addressee is the time 31
when both: 32
(i) the electronic communication has become capable 33
of being retrieved by the addressee at that address, 34
and 35
(ii) the addressee has become aware that the electronic 36
communication has been sent to that address. 37
(2) For the purposes of subsection (1), unless otherwise agreed 38
between the originator and the addressee of the electronic 39
communication, it is to be assumed that the electronic 40
Page 6
Electronic Transactions Amendment Bill 2010
Amendment of Electronic Transactions Act 2000 No 8 Schedule 1
communication is capable of being retrieved by the addressee 1
when it reaches the addressee's electronic address. 2
(3) Subsection (1) applies even though the place where the 3
information system supporting an electronic address is located 4
may be different from the place where the electronic 5
communication is taken to have been received under section 13B. 6
13B Place of dispatch and place of receipt 7
(1) For the purposes of a law of this jurisdiction, unless otherwise 8
agreed between the originator and the addressee of an electronic 9
communication: 10
(a) the electronic communication is taken to have been 11
dispatched at the place where the originator has its place of 12
business, and 13
(b) the electronic communication is taken to have been 14
received at the place where the addressee has its place of 15
business. 16
(2) For the purposes of the application of subsection (1) to an 17
electronic communication: 18
(a) a party's place of business is assumed to be the location 19
indicated by that party, unless another party demonstrates 20
that the party making the indication does not have a place 21
of business at that location, and 22
(b) if a party has not indicated a place of business and has only 23
one place of business, it is to be assumed that that place is 24
the party's place of business, and 25
(c) if a party has not indicated a place of business and has 26
more than one place of business, the place of business is 27
that which has the closest relationship to the underlying 28
transaction, having regard to the circumstances known to 29
or contemplated by the parties at any time before or at the 30
conclusion of the transaction, and 31
(d) if a party has not indicated a place of business and has 32
more than one place of business, but paragraph (c) does not 33
apply--it is to be assumed that the party's principal place 34
of business is the party's only place of business, and 35
(e) if a party is a natural person and does not have a place of 36
business--it is to be assumed that the party's place of 37
business is the place of the party's habitual residence. 38
Page 7
Electronic Transactions Amendment Bill 2010
Schedule 1 Amendment of Electronic Transactions Act 2000 No 8
(3) A location is not a place of business merely because that is: 1
(a) where equipment and technology supporting an 2
information system used by a party are located, or 3
(b) where the information system may be accessed by other 4
parties. 5
(4) The sole fact that a party makes use of a domain name or 6
electronic mail address connected to a specific country does not 7
create a presumption that its place of business is located in that 8
country. 9
[16] Section 14 Attribution of electronic communications 10
Omit section 14 (3) and (4). 11
[17] Part 2A 12
Transfer Part 2A to the end of Part 3 and rename it as Schedule 1 with the 13
heading "Courts--electronic case management systems". Renumber 14
sections 14A14R as consecutive clauses starting from clause 1, amend any 15
cross-references in the Schedule accordingly and amend any references to 16
"Part", "section" or "subsection" in that Schedule consequentially. 17
[18] Part 2A 18
Insert after Part 2: 19
Part 2A Additional provisions applying to 20
contracts involving electronic 21
communications 22
14A Application and operation of this Part 23
This Part applies to the use of electronic communications in 24
connection with the formation or performance of a contract 25
between parties where the proper law of the contract is (or would 26
on its formation be) the law of this jurisdiction, and so applies: 27
(a) whether some or all of the parties are located within 28
Australia or elsewhere, and 29
(b) whether the contract is for business purposes, for personal, 30
family or household purposes, or for other purposes. 31
14B Invitation to treat regarding contracts 32
(1) A proposal to form a contract made through one or more 33
electronic communications that: 34
(a) is not addressed to one or more specific parties, and 35
Page 8
Electronic Transactions Amendment Bill 2010
Amendment of Electronic Transactions Act 2000 No 8 Schedule 1
(b) is generally accessible to parties making use of 1
information systems, 2
is to be considered as an invitation to make offers, unless it 3
clearly indicates the intention of the party making the proposal to 4
be bound in case of acceptance. 5
(2) Subsection (1) extends to proposals that make use of interactive 6
applications for the placement of orders through information 7
systems. 8
14C Use of automated message systems for contract formation-- 9
non-intervention of natural person 10
A contract formed by: 11
(a) the interaction of an automated message system and a 12
natural person, or 13
(b) the interaction of automated message systems, 14
is not invalid, void or unenforceable on the sole ground that no 15
natural person reviewed or intervened in each of the individual 16
actions carried out by the automated message systems or the 17
resulting contract. 18
14D Error in electronic communications regarding contracts 19
(1) This section applies in relation to a statement, declaration, 20
demand, notice or request, including an offer and the acceptance 21
of an offer, that the parties are required to make or choose to 22
make in connection with the formation or performance of a 23
contract. 24
(2) If: 25
(a) a natural person makes an input error in an electronic 26
communication exchanged with the automated message 27
system of another party, and 28
(b) the automated message system does not provide the person 29
with an opportunity to correct the error, 30
the person, or the party on whose behalf the person was acting, 31
has the right to withdraw the portion of the electronic 32
communication in which the input error was made if: 33
(c) the person, or the party on whose behalf the person was 34
acting, notifies the other party of the error as soon as 35
possible after having learned of the error and indicates that 36
he or she made an error in the electronic communication, 37
and 38
Page 9
Electronic Transactions Amendment Bill 2010
Schedule 1 Amendment of Electronic Transactions Act 2000 No 8
(d) the person, or the party on whose behalf the person was 1
acting, has not used or received any material benefit or 2
value from the goods or services, if any, received from the 3
other party. 4
(3) The right of withdrawal of a portion of an electronic 5
communication under this section is not of itself a right to rescind 6
or otherwise terminate a contract. 7
(4) The consequences (if any) of the exercise of the right of 8
withdrawal of a portion of an electronic communication under 9
this section are to be determined in accordance with any 10
applicable rule of law. 11
Note. In some circumstances the withdrawal of a portion of an electronic 12
communication may invalidate the entire communication or render it 13
ineffective for the purposes of contract formation (see paragraph 241 of 14
the UNCITRAL explanatory note for the United Nations Convention on 15
the Use of Electronic Communications in International Contracts). 16
14E Application of Act in relation to contracts 17
(1) Subject to subsection (2), the provisions of sections 7 and 18
1313B apply to: 19
(a) a transaction constituted by or relating to a contract, or 20
(b) an electronic communication relating to the formation or 21
performance of a contract, 22
in the same way as they apply to a transaction or electronic 23
communication referred to in those sections, and so apply as if 24
the words "For the purposes of a law of this jurisdiction" were 25
omitted. 26
(2) However, this Part (including subsection (1)) does not apply to or 27
in relation to a contract to the extent that: 28
(a) Part 2 would of its own force have the same effect as this 29
Part if this Part applied, or 30
(b) a law of another State or Territory (that is in substantially 31
the same terms as Part 2) would of its own force have the 32
same effect as this Part if this Part applied. 33
Note. This section applies provisions of Part 2 to contracts or proposed 34
contracts to the extent (if any) that those provisions do not apply merely 35
because they are expressed to apply in relation to a law of this 36
jurisdiction. This section also disapplies the provisions of Part 2A to the 37
extent that Part 2 would apply of its own force. An example where Part 2 38
may not apply of its own force is where a contract is being negotiated in 39
a State or Territory from a supplier located overseas. 40
Page 10
Electronic Transactions Amendment Bill 2010
Amendment of Electronic Transactions Act 2000 No 8 Schedule 1
[19] Section 16 1
Insert after section 15: 2
16 Transitional provisions--Electronic Transactions Amendment Act 3
2010 4
(1) Regulations made under this Act before the commencement of 5
section 6A and in force immediately before that commencement 6
have effect as if that section had been in force when they were 7
made. 8
(2) Subject to subsection (3): 9
(a) section 14B extends to proposals made before the 10
commencement date, and 11
(b) section 14C extends to actions carried out before the 12
commencement date, and 13
(c) section 14D extends to statements, declarations, demands, 14
notices or requests, including offers and the acceptance of 15
offers, made or given before the commencement date. 16
(3) Subsection (2) and Part 2A do not apply in relation to contracts 17
formed before the commencement date. 18
(4) In subsections (2) and (3), commencement date means the date 19
of commencement of Part 2A, as inserted by the Electronic 20
Transactions Amendment Act 2010. 21
Page 11
Electronic Transactions Amendment Bill 2010
Schedule 2 Consequential amendments to other legislation
Schedule 2 Consequential amendments to other 1
legislation 2
2.1 Electronic Transactions Regulation 2007 3
Clause 8 Definition of "court" for purposes of Schedule 1 to the Act 4
Omit "Part 2A of" wherever occurring in clause 8 (1) and (2). 5
Insert instead "Schedule 1 to". 6
2.2 Electronic Transactions (ECM Courts) Order 2005 7
[1] Clause 3 Definitions 8
Omit "section 14B of" wherever occurring in clause 3 (1). 9
Insert instead "clause 2 of Schedule 1 to". 10
[2] Clauses 46 11
Omit "section 14C of" wherever occurring. 12
Insert instead "clause 3 of Schedule 1 to". 13
Page 12
[Index] [Search] [Download] [Related Items] [Help]