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What laws apply to e-business?

There are various laws and regulations that enable and regulate e-commerce in the Australian economy. In particular, the Electronic Transactions Act 1999 and the Privacy Amendment (Private Sector) Act 2000 have a role to play in e-security and authentication, while the Cybercrime Act 2001 aims to penalise computer crime.

Electronic Transactions Act 1999

The Electronic Transactions Act 1999 (ETA) creates a 'light touch' regulatory regime that enables electronic commerce in Australia and gives businesses and individuals the option of using electronic communications when dealing with government agencies. Consequently, a transaction taking place under a law of the Commonwealth is not invalid just because it was completed electronically. Since 1 July 2001 the ETA applies to all laws of the Commonwealth unless specifically excluded by the Electronic Transactions Regulations 2000 (as amended).

The ETA is based on two principles: functional equivalence (or media neutrality) and technology neutrality. Functional equivalence means that paper documents and electronic transactions are treated equally by the law. Technology neutrality means that the law does not discriminate between different forms of technology. This is intended to allow a certain amount of fluidity in the development of e-commerce technology without placing too high a burden on the business community to comply with particular specifications.

The ETA allows businesses to fulfil, in electronic form, any of the following requirements under a law of the Commonwealth:

  • Giving information in writing;
  • Providing a signature;
  • Producing a document in material form; and
  • Recording or retaining information.

The ETA also stipulates a uniform method for attributing the time and place of dispatch and receipt of electronic communications. This can be important in many transactions. Generally, a contract is taken to have been formed at the place where acceptance of the offer to transact is received. The ETA provides that receipt of an electronic communication occurs at the place of business of the addressee or, if the addressee does not have a physical place of business, at the addressee's ordinary place of residence. The time of receipt is the time when the electronic communication enters an information system designated by the addressee. If no such system has been designated, then an electronic communication is received when it comes to the attention of the addressee.

At the time of publication, all States and Territories with the exception of Western Australia have passed Electronic Transactions Acts that complement the Commonwealth's ETA. It should be noted that not all of these Acts have come into force and that unlike the ETA, state legislation applies to purely private sector transactions. This coordinated approach goes a long way toward establishing a national uniformity of laws relevant to e-commerce transactions. This legislative framework will allow businesses to enter into binding, enforceable agreements with government departments and agencies, and with other businesses, electronically.

Privacy Amendment (Private Sector) Act 2000

In December 2000, the Privacy Amendment (Private Sector) Act was passed through Federal Parliament. This amends the Privacy Act 1988, which applied primarily to public sector agencies. As a result of the amendments, which came into force on 21 December 2001, the Privacy Act applies to the private sector as well as the public sector. The impact of this Act on e-business is discussed in the previous section, ('Why is privacy an important issue for e-security?')

The amendments do not apply to businesses with an annual turnover of $3 million or less, unless those businesses:

  • Choose to 'opt-in' voluntarily;
  • Trade in personal information;
  • Provide a health service and hold health information; or
  • Provide contractual services to the Commonwealth.

There are also exemptions for handling of personal information by the media, personnel records, and transfer of personal information between related parties.

Cybercrime Act 2001

Agreement has been reached between the Commonwealth and the States and Territories to implement in all jurisdictions new laws to address shortcomings in existing computer offences. The Cybercrime Act 2001 outlaws activities such as the unauthorised access of commercial or confidential information, spreading computer viruses and trading in technology that is designed to either hack into or damage another person's computer.

Conclusion

Numerous laws have been enacted in recent years to ensure that online transactions enjoy the same legal status as their paper counterparts, and to recognise new types of computer crime. This regulations mean you can be confident in conducting business online.

Where to go online

The Office of the Federal Privacy Commissioner
The Privacy Amendment (Private Sector Act) 2000
Information Sheets
www.privacy.gov.au

The Trade Practices Act 1974
Cybercrime Act 2001
The Australian Securities and Investments Commission
Act 1989
www.law.gov.au

The Electronic Transactions Act 1999
http://scaleplus.law.gov.au/html/comact/10/6074/pdf/162of99.pdf

Australia's Legal Framework for Electronic Commerce
http://www.ag.gov.au/agd/www/Securitylawhome.nsf/Page/38A611AD4AB77CB0CA256B9D00182477?OpenDocument  

 

  • Document ID: 19763 |
  • Last modified: 6 February 2008, 10:50am