A united front

By Andrew McRobert

There are important implications for document managers in WA's new electronic transaction laws. By Andrew McRobert.

On 2 May 2003, Western Australia became the final Australian State to enact legislation to give electronic transactions the same legal status as those recorded on paper.The Electronic Transactions Act 1999 ("ETA"), which has applied to most laws of the Commonwealth since 1 July 2001, was the Federal Government's response to the uncertainty surrounding the validity of electronic communications, transactions and documents.

The ETA provides that for the purposes of a "law of the Commonwealth", a transaction is not invalid because it took place wholly or partly by means of one or more electronic communications. The legislation provides specific rules in relation to requirements for writing, production and retention of documents, signatures as well as the time and place of dispatch and receipt of electronic communications.

However, as the ETA only applied to Commonwealth laws, each Australian State and Territory needed to address the same issues in relation to their own legislation. As a national approach to this issue is crucial to the success of electronic commerce in Australia, the Federal Government worked in close cooperation with State and Territory Governments to develop the uniform Electronic Transactions Bill 2000. The uniform Bill was closely modelled on the ETA and mirrors the substantive provisions of that Act.

Implications for document management

With the coming into effect of the Electronic Transactions Act 2003 (WA) ("WA Act") on 2 May 2003, State-based legislation to complement the ETA has now been enacted in each Australian State and Territory. As is the case with the ETA and the other State Acts, the WA Act enables contractual dealings, such as offers, acceptances and invitations to be conducted electronically.

The WA Act also allows people to use an electronic signature to satisfy any legal requirement to provide a signature, provided that the following conditions are met:

A method is used to identify the person and to indicate the person's approval of the information communicated

Having regard to all the relevant circumstances at the time the method was used, the method was as reliable as was appropriate for the purposes for which the information was communicated

The person to whom the signature is required to be given consents to that requirement being met by the use of the electronic signature.

The WA Act also has significant implications for those with document management responsibilities. For example, if a State law requires a person to retain a document that requirement is met if the person records the information in electronic form, where:

Having regard to all the relevant circumstances at the time of recording the document on the data storage device, the method of retaining the document provided a reliable means of assuring the maintenance of the integrity of the information contained in the document;

At the time of recording, it was reasonable to expect that the information would be readily accessible for reference throughout that period; and

If the regulations require that the document be retained on a particular kind of "data storage device", that requirement has been met throughout the period.

In addition, if an electronic communication must be retained, you must retain, in electronic form, additional information regarding:

The origin of the electronic communication the destination of the electronic communication

The time when the electronic communication was sent

Tthe time when the electronic communication was received.

The integrity of information the subject of an electronic communication is maintained if, and only if, the information has remained complete and unaltered apart from the addition of any endorsement or any immaterial change that arises in the normal course of communication, storage or display.

With the introduction of the Electronic Transactions Act 2003 (WA), we now have uniform coverage for electronic communications, transactions and records throughout Australia.

Andrew McRobert is a lawyer at Deacons, Perth.