The Commonwealth Electronic Transactions Bill 1999: ailments and antidotes

Abogados de las Nuevas Tecnologías

Resumen

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The Commonwealth recently introduced the Electronic Transactions Bill 1999.1 The Commonwealth holds the belief that it cannot introduce universal legislation, ie, legislation that applies to all electronic transactions in Australia, in the form of the Bill due to constitutional restrictions. Consequently, the Bill is designed to apply to Commonwealth laws only, but also serve as a model for the State and Territory governments to model similar laws.

The aim of this paper is to demonstrate that the application of the Bill is too narrow. By limiting the application of the well-drafted Bill, the Commonwealth is creating an environment conducive to uncertainty. This paper argues that perceived constitutional obstacles to enacting universal legislation in this field may be illusory. The author argues that the application of the Bill should be extended by ensuring that:

(1) it applies to all electronic transactions in Australia; and

(2) the definition of electronic communications is amended so that it extends to audio-visual technologies.2

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Extracto

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The Commonwealth Electronic Transactions Bill 1999: ailments and antidotes

The Ailment

Ecommerce is rapidly redefining the way in which business is conducted. Ecommerce highlights the difficulties associated with laws that do not have universal application.

The Commonwealth appears to be of the view that the Constitution does not confer on it the legislative power to make universal laws in the form set out in the Bill.3 In what appears to be a corollary of this belief, the Commonwealth has limited the application of the proposed legislation.4

The Commonwealth's preferred course appears to be the establishment of a national scheme in cooperation with the State and Territory Governments.5 The Commonwealth expects that the Bill will provide a blueprint upon which the State and Territory governments will base similar legislation.6 The author believes that this approach unnecessarily creates an environment that could harm or inhibit the development of electronic commerce. While it is clear that the State or Territory governments may challenge the introduction of comprehensive legislation, this is true of many Commonwealth enactments and does not appear to be an appropriate response to the challenges posed by electronic commerce ("ecommerce").

The Commonwealth's stated intention to involve the State and Territory governments in the introduction of electronic transaction legislation could promote both uncertainty and inefficiency. Prog...

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