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What lawyers need to know - the Electronic Transactions Act

What lawyers need to know - the Electronic Transactions Act. Colin Minihan Principal Legal Officer Information and Security Law Division Attorney-General’s Dept. Presentation outline. the Electronic Transactions Act issues raised by the Act State and Territory developments

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What lawyers need to know - the Electronic Transactions Act

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  1. What lawyers need to know - the Electronic Transactions Act Colin Minihan Principal Legal Officer Information and SecurityLaw Division Attorney-General’s Dept

  2. Presentation outline • the Electronic Transactions Act • issues raised by the Act • State and Territory developments • international legal developments

  3. Electronic Transactions Act • background • based on international template • expert and public consultation • uniform national legislation agreed • effect - you can do business online with legal certainty

  4. ET Act - principles • media neutrality • treats paper and electronic communications equally • technology neutrality • doesn’t discriminate between different forms of technology

  5. ET Act - basic rule • a transaction will not be invalid merely because it took place by means of an electronic communication • transaction must satisfy any other existing legal requirements

  6. ET Act - core provisions • electronic communications can satisfy existing legal requirements for: • writing • signature • production of documents • retention of information

  7. ET Act - common elements • ‘readily accessible so as to be useable for subsequent reference’ • consent required • Commonwealth Govt must accept communications • Commonwealth entities’ powers • operation of other laws preserved

  8. ET Act - exemptions • from 1 July 2001 has applied to all Commonwealth laws subject to any exemptions • Electronic Transactions Regulations list exemptions • 101 laws (Acts and regulations) exempted

  9. Issues raised by the Act • electronic communication • law of the Commonwealth • IT requirements • contracting

  10. E-Security and the Act • doesn’t deal with security of communications directly • should be considered in practical implementation of systems • electronic signatures

  11. State and Territory Developments • enacted by NSW, Victoria, Northern Territory, Tasmania, South Australia, the ACT and Queensland • commenced in Vic. on 1 Sept 2000 and ACT on 1 July 2001 • lapsed in WA due to elections

  12. International Legal Developments • EC Directives • electronic signatures • electronic commerce • US, Canadian Uniform Laws • many others enacting laws • eg Singapore, Hong Kong, Korea, India, New Zealand

  13. International Legal Developments (2) • UNCITRAL Model Law on Electronic Signatures • Hague Convention - jurisdiction • OECD working group - ADR • Cybercrime convention

  14. Electronic Signatures • ET Act section 10 • can satisfy legal requirement for a signature by using any technique that: • identifies a person • indicates their approval • is appropriate in circumstances

  15. Electronic Signatures (2) • PKI systems/digital signatures • Government’s ‘Gatekeeper’ • Certification Forum of Australia • other technologies eg ‘PenOp’ (signature dynamics) • NEAC

  16. Further information • Attorney-General’s Department e-commerce homepage: http://law.gov.au/ecommerce

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