The Commonwealth Electronic Transactions Bill 1999: ailments and antidotes
| Autor | Leif Gamertsfelder |
| Cargo | National IT Group. Deacons Graham & James Lawyers (Australia) |
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. Progress and uniformity in this context would be dependent on State and Territory governments consistently, quickly and effectively introducing the initial legislation and any subsequent amendments to the legislation. To create this type of regulatory environment would appear to be contrary to the type of regulatory environment necessary for ecommerce to prosper. And would have implications for both the legal validity of electronic transactions and business confidence in electronic transactions.7
In turn, this will impact on what the Commonwealth terms "Australia's future prosperity in the information economy".8 The author submits, with respect, that by adopting this approach the Commonwealth is embarking on an inappropriate course of action. Such an approach stands in sharp relief to calls for universal laws and greater certainty in respect of laws relating to ecommerce. 9
To overcome this problem, the Commonwealth should consider expanding the operation of the Bill. From what follows below, it appears the Commonwealth has the constitutional power to enact electronic transaction legislation of a universal nature that will govern most if not all electronic transactions conducted in Australia.
Constitutional Issues - the antidote
In expanding the scope of the application of the Bill, the Commonwealth could rely on a number of constitutional heads of power, including ss 51(i), 51(v) and 51(xxix). The most compelling arguments in support of the Commonwealth having the power to enact legislation of universal application are based on s 51(v). This paper will now address the issues of whether the:
(1) electronic communications to which the Bill applies;10 and
(2) requirements in respect of electronic communications in the Bill;11
are within in the scope of the power conferred on the Commonwealth by
s 51(v) of the Constitution.
Electronic communications and s 51(v)
Unless the Constitution explicitly or implicitly requires otherwise, the grants of power in s 51 must not be "cut down by a narrow and technical construction, but must be given a large and liberal construction."12 O'Connor J accurately elaborated this principle in Jumbunna Coal Mine NL v Victorian Coal Miners' Association13:
"...it must always be remembered that we are interpreting a Constitution broad and general in its terms, intended to apply to the varying conditions which the development of our community must involve.
For that reason, where the question is whether the Constitution has used an expression in the wider or in the narrower sense, the Court should, in my opinion, always lean to the broader interpretation unless there is something in the context or in the rest of the Constitution to indicate that the narrower interpretation will best carry out its object and purpose."14
This approach was echoed by Windeyer J in Jones v The Commonwealth (No 2)15 when he observed that: "[o]nce it be conceded that Commonwealth power extends to ...[subject matter] within s. 51 (v.) the laws that may be made with respect to them are a matter for the Parliament."16
Section 51(v) enables the Commonwealth to make laws with respect to "[p]ostal, telegraphic, telephonic and other like services." The author suggests that this head could support the enactment of legislation in the same form as the Bill. The High Court of Australia has had the opportunity to examine the extent of this power on a number of occasions with the leading cases being R v Brislan17 and Jones v Commonwealth (No 2).18
In Brislan's case there were two lines of reasoning adopted by the five majority Justices. Four of the five Justices comprising the majority held that radio broadcasting could be regulated by Commonwealth statute because it was effected by a means (ie, radio waves) that was either a telegraphic, telephonic or like service. On the other hand, Latham CJ was of the view that radio broadcasts were a service similar to post, telegraphy or telephony services as they were all forms of communication. Latham CJ also noted that: "[i]f a new form of communication should be discovered, it too might be made the subject of legislation as a "like service".19 On either view adopted by the majority: "[t]he result is the same whether one treats the form of the communication as being within the specific part of the genus or within the genus itself."20
Brislan's case was followed in Jones v Commonwealth (No 2). In this case one question that had to be determined by the court was whether the Commonwealth had the constitutional power to make laws with respect to television broadcasts, which have nothing to do with matters otherwise within the Commonwealth constitutional power. Applying Brislan's case, the court held that...
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