Page 1351 - Week 04 - Tuesday, 27 March 2012
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implement the model bill. This legislation has been passed in all states and territories, except the ACT and Queensland.
The bill does not significantly change the law of electronic transactions in the territory, but it does clarify the law to address the rapid growth and development in electronic communications. The bill preserves the freedom of contracting parties to determine the form and performance of a contract between them. The bill implements internationally recognised standards in relation to transactions conducted electronically. While the UN convention is concerned only with international business contracts, the model bill also applies to domestic business contracts and contracts concluded for personal, family or household purposes.
Through updating the traditional rules of contract formation, the bill will reduce any uncertainty around the formation and performance of contracts by electronic means. In particular, the bill amends the Electronic Transactions Act to set out the circumstances in which an electronic signature will be taken to have been authenticated. If a person’s signature is required in relation to a contract or a law of the territory, an electronic signature can be used as long as a reliable method is used to identify the signatory and to show the signatory’s intention in relation to the information communicated. Under the new law, an electronic signature will not necessarily imply that the signatory approves of the entire content of an electronic communication if their actual intention indicates otherwise. This update to the law will increase certainty for business and will prevent a party to a transaction repudiating its signature in bad faith.
The invitation to treat is a longstanding principle of contractual law, and this bill clarifies the rules of an invitation to treat in an electronic environment. The amendments in the bill will allow parties who use electronic communications to advertise their goods and services to the world at large, to be confident that their actions will not constitute a binding offer of a contract. The amendments provide that an electronic proposal to form a contract, generally accessible to users and not specifically addressed to a party, is taken to be an invitation to make offers, and not an offer itself, unless the proposal clearly indicates the intention of the party to be bound.
The bill also contains amendments to provide that the time of dispatch of an electronic communication is the time when it leaves an information system under the control of the originator. This amendment reflects the developments in electronic communications since the act was first legislated.
Madam Assistant Speaker, technology allows businesses to conduct electronic transactions in a variety of ways and places. A business based in Canberra may make use of equipment based outside the territory to host its website and email servers. A business may use a domain name which has been registered in another country. In accordance with internationally recognised practices, the bill specifies that the location of parties in an electronic environment is determined by their place of business, not the mere physical location or access point of their supporting information systems.
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