Act No. 162 of 1999 as amended

This compilation was prepared on 15 July 2005 incorporating amendments up to Act No. 100 of 2005

The text of any of those amendments not in force on that date is appended in the Notes section

The operation of amendments that have been incorporated may be affected by application provisions that are set out in the Notes section

Prepared by the Office of Legislative Drafting and Publishing, Attorney-General’s Department, Canberra

Part 1-Introduction

1 Short title

This Act may be cited as the Electronic Transactions Act 1999.

2 Commencement

(1) Subject to subsection (2), this Act commences on a day to be fixed by Proclamation.

(2) If this Act does not commence under subsection (1) within the period of 6 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.

3 Object

The object of this Act is to provide a regulatory framework that:

(a) recognises the importance of the information economy to the future economic and social prosperity of Australia; and

(b) facilitates the use of electronic transactions; and

(c) promotes business and community confidence in the use of electronic transactions; and

(d) enables business and the community to use electronic communications in their dealings with government.

4 Simplified outline

The following is a simplified outline of this Act:

• For the purposes of a law of the Commonwealth, a transaction is not invalid because it took place by means of one or more electronic communications.
• The following requirements imposed under a law of the Commonwealth can be met in electronic form:

(a) a requirement to give information in writing;

(b) a requirement to provide a signature;

(c) a requirement to produce a document;

(d) a requirement to record information;

(e) a requirement to retain a document.

• For the purposes of a law of the Commonwealth, provision is made for determining the time and place of the dispatch and receipt of an electronic communication.
• The purported originator of an electronic communication is bound by it for the purposes of a law of the Commonwealth only if the communication was sent by the purported originator or with the authority of the purported originator.

5 Definitions

(1) In this Act, unless the contrary intention appears:

Commonwealth entity means:

(a) a Minister; or

(b) an officer or employee of the Commonwealth; or

(c) a person who holds or performs the duties of an office under a law of the Commonwealth; or

(d) an authority of the Commonwealth; or

(e) an employee of an authority of the Commonwealth.

consent includes consent that can reasonably be inferred from the conduct of the person concerned.

data includes the whole or part of a computer program within the meaning of the Copyright Act 1968.

data storage device means any article or material (for example, a disk) from which information is capable of being reproduced, with or without the aid of any other article or device.

electronic communication means:

(a) a communication of information in the form of data, text or images by means of guided and/or unguided electromagnetic energy; or

(b) a communication of information in the form of speech by means of guided and/or unguided electromagnetic energy, where the speech is processed at its destination by an automated voice recognition system.

information means information in the form of data, text, images or speech.

information system means a system for generating, sending, receiving, storing or otherwise processing electronic communications.

information technology requirements includes software requirements.

non-profit body means a body that is not carried on for the purposes of profit or gain to its individual members and is, by the terms of the body’s constitution, prohibited from making any distribution, whether in money, property or otherwise, to its members.
place of business, in relation to a government, an authority of a government or a non-profit body, means a place where any operations or activities are carried out by that government, authority or body.

transaction includes a transaction of a non-commercial nature.

Before 1 July 2001, in this Act (other than this section):

law of the Commonwealth means a law of the Commonwealth specified in the regulations.

6 Crown to be bound

This Act binds the Crown in all its capacities.

7 External Territories

This Act extends to all the external Territories.

Section 8

Part 2-Application of legal requirements to electronic communications

Division 1-General rule about validity of transactions for the purposes of laws of the Commonwealth

8 Validity of electronic transactions

(1) 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.

(2) The general rule in subsection (1) does not apply in relation to the validity of a transaction to the extent to which another, more specific provision of this Part deals with the validity of the transaction.

Exemptions

(3) The regulations may provide that subsection (1) does not apply to a specified transaction.

(4) The regulations may provide that subsection (1) does not apply to a specified law of the Commonwealth.

Section 9

Division 2-Requirements under laws of the Commonwealth

9 Writing

Requirement to give information in writing

(1) If, under a law of the Commonwealth, a person is required to give information in writing, that requirement is taken to have been met if the person gives the information by means of an electronic communication, where:

(a) in all cases-at the time the information was given, it was reasonable to expect that the information would be readily accessible so as to be useable for subsequent reference; and

(b) if the information is required to be given to a Commonwealth entity, or to a person acting on behalf of a Commonwealth entity, and the entity requires that the information be given, in accordance with particular information technology requirements, by means of a particular kind of electronic communication-the entity’s requirement has been met; and

(c) if the information is required to be given to a Commonwealth entity, or to a person acting on behalf of a Commonwealth entity, and the entity requires that particular action be taken by way of verifying the receipt of the information-the entity’s requirement has been met; and

(d) if the information is required to be given to a person who is neither a Commonwealth entity nor a person acting on behalf of a Commonwealth entity-the person to whom the information is required to be given consents to the information being given by way of electronic communication.

Permission to give information in writing

(2) If, under a law of the Commonwealth, a person is permitted to give information in writing, the person may give the information by means of an electronic communication, where:

(a) in all cases-at the time the information was given, it was reasonable to expect that the information would be readily accessible so as to be useable for subsequent reference; and

(b) if the information is permitted to be given to a Commonwealth entity, or to a person acting on behalf of a Commonwealth entity, and the entity requires that the information be given, in accordance with particular information technology requirements, by means of a particular kind of electronic communication-the entity’s requirement has been met; and

(c) if the information is permitted to be given to a Commonwealth entity, or to a person acting on behalf of a Commonwealth entity, and the entity requires that particular action be taken by way of verifying the receipt of the information-the entity’s requirement has been met; and

(d) if the information is permitted to be given to a person who is neither a Commonwealth entity nor a person acting on behalf of a Commonwealth entity-the person to whom the information is permitted to be given consents to the information being given by way of electronic communication.

Certain other laws not affected

(3) This section does not affect the operation of any other law of the Commonwealth that makes provision for or in relation to requiring or permitting information to be given, in accordance with particular information technology requirements:

(a) on a particular kind of data storage device; or

(b) by means of a particular kind of electronic communication.

Giving information

(4) This section applies to a requirement or permission to give information, whether the expression give, send or serve, or any other expression, is used.

(5) For the purposes of this section, giving information includes, but is not limited to, the following:

(a) making an application;

(b) making or lodging a claim;

(c) giving, sending or serving a notification;

(d) lodging a return;

(e) making a request;

(f) making a declaration;

(g) lodging or issuing a certificate;

(h) making, varying or cancelling an election;

(i) lodging an objection;

(j) giving a statement of reasons.

Note: Section 13 sets out exemptions from this section.

10 Signature

Requirement for signature

(1) If, under a law of the Commonwealth, the signature of a person is required, that requirement is taken to have been met in relation to an electronic communication if:

(a) in all cases-a method is used to identify the person and to indicate the person’s approval of the information communicated; and

(b) in all cases-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; and

(c) if the signature is required to be given to a Commonwealth entity, or to a person acting on behalf of a Commonwealth entity, and the entity requires that the method used as mentioned in paragraph (a) be in accordance with particular information technology requirements-the entity’s requirement has been met; and

(d) if the signature is required to be given to a person who is neither a Commonwealth entity nor a person acting on behalf of a Commonwealth entity-the person to whom the signature is required to be given consents to that requirement being met by way of the use of the method mentioned in paragraph (a).

(2) This section does not affect the operation of any other law of the Commonwealth that makes provision for or in relation to requiring:

(a) an electronic communication to contain an electronic signature (however described); or

(b) an electronic communication to contain a unique identification in an electronic form; or

(c) a particular method to be used in relation to an electronic communication to identify the originator of the communication and to indicate the originator’s approval of the information communicated.

Note: Section 13 sets out exemptions from this section.

11 Production of document

Requirement to produce a document

(1) If, under a law of the Commonwealth, a person is required to produce a document that is in the form of paper, an article or other material, that requirement is taken to have been met if the person produces, by means of an electronic communication, an electronic form of the document, where:

(a) in all cases-having regard to all the relevant circumstances at the time of the communication, the method of generating the electronic form of the document provided a reliable means of assuring the maintenance of the integrity of the information contained in the document; and

(b) in all cases-at the time the communication was sent, it was reasonable to expect that the information contained in the electronic form of the document would be readily accessible so as to be useable for subsequent reference; and

(c) if the document is required to be produced to a Commonwealth entity, or to a person acting on behalf of a Commonwealth entity, and the entity requires that an electronic form of the document be produced, in accordance with particular information technology requirements, by means of a particular kind of electronic communication-the entity’s requirement has been met; and

(d) if the document is required to be produced to a Commonwealth entity, or to a person acting on behalf of a Commonwealth entity, and the entity requires that particular action be taken by way of verifying the receipt of the document-the entity’s requirement has been met; and

(e) if the document is required to be produced to a person who is neither a Commonwealth entity nor a person acting on behalf of a Commonwealth entity-the person to whom the document is required to be produced consents to the production, by means of an electronic communication, of an electronic form of the document.

Permission to produce a document

(2) If, under a law of the Commonwealth, a person is permitted to produce a document that is in the form of paper, an article or other material, then, instead of producing the document in that form, the person may produce, by means of an electronic communication, an electronic form of the document, where:

(a) in all cases-having regard to all the relevant circumstances at the time of the communication, the method of generating the electronic form of the document provided a reliable means of assuring the maintenance of the integrity of the information contained in the document; and

(b) in all cases-at the time the communication was sent, it was reasonable to expect that the information contained in the electronic form of the document would be readily accessible so as to be usable for subsequent reference; and

(c) if the document is permitted to be produced to a Commonwealth entity, or to a person acting on behalf of a Commonwealth entity, and the entity requires that an electronic form of the document be produced, in accordance with particular information technology requirements, by means of a particular kind of electronic communication-the entity’s requirement has been met; and

(d) if the document is permitted to be produced to a Commonwealth entity, or to a person acting on behalf of a Commonwealth entity, and the entity requires that particular action be taken by way of verifying the receipt of the document-the entity’s requirement has been met; and

(e) if the document is permitted to be produced to a person who is neither a Commonwealth entity nor a person acting on behalf of a Commonwealth entity-the person to whom the document is permitted to be produced consents to the production, by means of an electronic communication, of an electronic form of the document.

�

An Act to make provision to protect the privacy of individuals, and for related purposes

WHEREAS Australia is a party to the International Covenant on Civil and Political Rights, the English text of which is set out in Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986:

AND WHEREAS, by that Covenant, Australia has undertaken to adopt such legislative measures as may be necessary to give effect to the right of persons not to be subjected to arbitrary or unlawful interference with their privacy, family, home or correspondence:

AND WHEREAS Australia is a member of the Organisation for Economic Co-operation and Development:

AND WHEREAS the Council of that Organisation has recommended that member countries take into account in their domestic legislation the principles concerning the protection of privacy and individual liberties set forth in Guidelines annexed to the recommendation:

AND WHEREAS Australia has informed that Organisation that it will participate in the recommendation concerning those Guidelines:

BE IT THEREFORE ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows:

Part I-Preliminary

1 Short title

This Act may be cited as the Privacy Act 1988.

2 Commencement

This Act commences on a day to be fixed by Proclamation.

3 Saving of certain State and Territory laws

It is the intention of the Parliament that this Act is not to affect the operation of a law of a State or of a Territory that makes provision with respect to the collection, holding, use, correction, disclosure or transfer of personal information (including such a law relating to credit reporting or the use of information held in connection with credit reporting) and is capable of operating concurrently with this Act.

Note: Such a law can have effect for the purposes of the provisions of the National Privacy Principles that regulate the handling of personal information by organisations by reference to the effect of other laws.

3A Application of the Criminal Code

Chapter 2 of the Criminal Code (except Part 2.5) applies to all offences against this Act.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

4 Act to bind the Crown

(1)  This Act binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory, of the Northern Territory and of Norfolk Island.

(2)  Nothing in this Act renders the Crown in right of the Commonwealth, of a State, of the Australian Capital Territory, of the Northern Territory or of Norfolk Island liable to be prosecuted for an offence.

(3)  Nothing in this Act shall be taken to have the effect of making the Crown in right of a State, of the Australian Capital Territory, of the Northern Territory or of Norfolk Island an agency for the purposes of this Act.

5 Interpretation of Information Privacy Principles

For the purposes of the interpretation of the Information Privacy Principles, each Information Privacy Principle shall be treated as if it were a section of this Act.

5A Extension to external Territories

This Act extends to all external Territories.

5B Extra-territorial operation of Act

Application to overseas acts and practices of organisations

(1) This Act (except Divisions 4 and 5 of Part III and Part IIIA) and approved privacy codes extend to an act done, or practice engaged in, outside Australia and the external Territories by an organization if:

(a) subject to subsection (1A), the act or practice relates to personal information about an Australian citizen or a person whose continued presence in Australia is not subject to a limitation as to time imposed by law; and

(b) the requirements of subsection (2) or (3) are met.

Note: The act or practice overseas will not breach a National Privacy Principle or approved privacy code or be an interference with the privacy of an individual if the act or practice is required by an applicable foreign law. See sections 6A, 6B and 13A.

(1A) Paragraph (1)(a) does not apply in relation to National Privacy Principle.

Note: Because of subsection (1A), the extra-territorial application of National Privacy Principle 9 is not limited by the citizenship etc. requirement of paragraph (1)(a).

Organisational link with Australia

(2) The organisation must be:

(a) an Australian citizen; or

(b) a person whose continued presence in Australia is not subject to a limitation as to time imposed by law; or

(c) a partnership formed in Australia or an external Territory; or

(d) a trust created in Australia or an external Territory; or

(e) a body corporate incorporated in Australia or an external Territory; or

(f) an unincorporated association that has its central management and control in Australia or an external Territory.

Other link with Australia

(3) All of the following conditions must be met:

(a) the organisation is not described in subsection (2);

(b) the organisation carries on business in Australia or an external Territory;

(c) the personal information was collected or held by the organisation in Australia or an external Territory, either before or at the time of the act or practice.

(4) Part V of this Act has extra-territorial operation so far as that Part relates to complaints and investigation concerning acts and practices to which this Act extends because of subsection (1).

Note: This lets the Commissioner take action overseas to investigate complaints and lets the ancillary provisions of Part V operate in that context.

Part II-Interpretation

6 Interpretation

(1)  In this Act, unless the contrary intention appears:

ACC means the Australian Crime Commission.

ACT enactment has the same meaning as enactment has in the Australian Capital Territory (Self-Government) Act 1988.

agency means:

(a) a Minister; or

(b) a Department; or

(c) a body (whether incorporated or not), or a tribunal, established or appointed for a public purpose by or under a Commonwealth enactment, not being:

(i) an incorporated company, society or association; or

(ii) an organisation within the meaning of the Conciliation and Arbitration Act 1904 or a branch of such an organisation; or

(d) a body established or appointed by the Governor-General, or by a Minister, otherwise than by or under a Commonwealth enactment; or

(e) a person holding or performing the duties of an office established by or under, or an appointment made under, a Commonwealth enactment, other than a person who, by virtue of holding that office, is the Secretary of a Department; or

(f) a person holding or performing the duties of an appointment, being an appointment made by the Governor-General, or by a Minister, otherwise than under a Commonwealth enactment; or

(g) a federal court; or

(h) the Australian Federal Police; or

(i) an eligible case manager; or

(j) the nominated AGHS company; or

(k) an eligible hearing service provider.

annual turnover of a business has the meaning given by section 6DA.

approved privacy code means:

(a) a privacy code approved by the Commissioner under section 18BB; or

(b) a privacy code approved by the Commissioner under section 18BB with variations approved by the Commissioner under section 18BD.

bank means:

(a) the Reserve Bank of Australia; or

(b) a body corporate that is an ADI (authorised deposit-taking institution) for the purposes of the Banking Act 1959; or

(c) a person who carries on State banking within the meaning of paragraph 51(xiii) of the Constitution.

Board of the ACC means the Board of the Australian Crime Commission established under section 7B of the Australian Crime Commission Act 2002.

breach an approved privacy code has the meaning given by section 6B.

breach an Information Privacy Principle has a meaning affected by subsection 6(2).

breach a National Privacy Principle has the meaning given by section 6A.

class member, in relation to a representative complaint, means any of the persons on whose behalf the complaint was lodged, but does not include a person who has withdrawn under section 38B.

code complaint means a complaint about an act or practice that, if established, would be an interference with the privacy of the complainant because it breached an approved privacy code.

Code of Conduct means the Code of Conduct issued under section 18A.

commercial credit means a loan sought or obtained by a person, other than a loan of a kind referred to in the definition of credit in this subsection.

Commissioner means the Privacy Commissioner.

Commissioner of Police means the Commissioner of Police appointed under the Australian Federal Police Act 1979.

Commonwealth contract means a contract, to which the Commonwealth or an agency is or was a party, under which services are to be, or were to be, provided to an agency.

Note: See also subsection (9) about provision of services to an agency.<–>

Act No. 110 of 2000 as amended

This compilation was prepared on 2 August 2002

[This Act was amended by Act No. 63 of 2002]

Amendments from Act No. 63 of 2002

[Schedule 2 (item 4) amended Item 41 of Schedule 1;

Schedule 2 (item 5) amended Item 224 of Schedule 1;

Schedule 2 (items 4 and 5) commenced on 4 March 2001]

Prepared by the Office of Legislative Drafting,

Attorney-General’s Department, Canberra

Schedule 1-Amendment of the Copyright Act 1968

Schedule 2-Transitional provisions 94

An Act to amend the Copyright Act 1968, and for related purposes

[Assented to 4 September 2000]

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Copyright Amendment (DigitalAgenda) Act 2000.

2 Commencement

(1)  Subject to subsection (2), this Act commences on a day to be fixed by Proclamation.

(2)  If this Act does not commence under subsection (1) within the period of 6 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.

3 Object of the Act

The object of this Act is to amend the Copyright Act 1968 so as to:

(a)  ensure the efficient operation of relevant industries in the online environment by:

(i)  promoting the creation of copyright material and the exploitation of new online technologies by allowing financial rewards for creators and investors; and

(ii) providing a practical enforcement regime for copyright owners; and

(iii) promoting access to copyright material online; and

(b)  promote certainty for communication and information technology industries that are investing in and providingonline access to copyright material; and

(c)  provide reasonable access and certainty for end users of copyright material online; and

(d)  ensure that cultural and educational institutions can access, and promote access to, copyright material in the online environment on reasonable terms, including having regard to the benefits of public access to the material and the provision of adequate remuneration to creators and investors; and

(e)  Ensure that the relevant global technical standards which form the basis of new communication and information technologies, such as the Internet, are not  jeopardized.

4 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1-Amendment of the Copyright Act 1968

1 Subsection 10(1) (definition of broadcast)

Repeal the definition, substitute:
Broadcast means a communication to the public delivered by a broadcasting service within the meaning of the Broadcasting Services Act 1992.

Note: A broadcasting service does not include the following:

(a)  a service (including a teletext service) that provides only data or only text (with or without associated images); or

(b)  a service that makes programs available on demand on a point-to-point basis, including a dial-up service.

2 Subsection 10(1)

Insert:
carriage service provider has the same meaning as in the Telecommunications Act 1997.

3 Subsection 10(1)

Insert:
carrier has the same meaning as in the Telecommunications Act 1997.

4 Subsection 10(1)

Insert:
circumvention device means a device (including a computer program) having only a limited commercially significant purpose or use, or no such purpose or use, other than the circumvention, or facilitating the circumvention, of an effective technological protection measure.

5 Subsection 10(1)

Insert:
circumvention service means a service, the performance of which has only a limited commercially significant purpose, or no such purpose or use, other than the circumvention, or facilitating the circumvention, of an effective technological protection measure.

6 Subsection 10(1)

Insert:
communicate means make available online or electronically transmit (whether over a path, or a combination of paths, provided by a material substance or otherwise) a work or other subject-matter.

7 Subsection 10(1) (definition of computer program)

Repeal the definition, substitute:
computer program means a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.

9 Subsection 10(1)

Insert:
electronic rights management information means:

(a)  information attached to, or embodied in, a copy of a work or other subject-matter that:

(i) identifies the work or subject-matter, and its author or copyright owner; or

(ii) identifies or indicates some or all of the terms and conditions on which the work or subject-matter may be used, or indicates that the use of the work or subject-matter is subject to terms or conditions; or

(b)  any numbers or codes that represent such information in electronic form.

10 Subsection 10(1) (paragraph (e) of the definition of infringing copy)

Omit “reproduction”, substitute “facsimile copy”.

12 Subsection 10(1) (paragraph (a) of the definition of literary work)

Omit “(whether or not in a visible form)”.

13 Subsection 10(1) (definition of manuscript)

Repeal the definition, substitute:
manuscript, in relation to a literary, dramatic or musical work, means the document embodying the work as initially prepared by the author, whether the document is in hardcopy form, electronic form or any other form.

14 Subsection 10(1)

Insert:
reception equipment means equipment whose operation, either alone or together with other equipment, enables people to hear or see a work or other subject-matter that is communicated.

15 Subsection 10(1)

Insert:
retransmission, in relation to a broadcast, means a retransmission of the broadcast, where:

(a) the content of the broadcast is unaltered (even if the technique used to achieve retransmission is different to the technique used to achieve the original transmission); and

(b) either:
(i) in any case-the retransmission is simultaneous with the original transmission; or
(ii) if the retransmission is in an area that has, wholly or partly, different local  time to the area of the original transmission-the retransmission is delayed until no later than the equivalent local time.

1. Short title

This Act may be cited as the Electronic Transactions Act 2003 .

2. Commencement

(1) This Act comes into operation on a day fixed by proclamation.

(2) Different days may be fixed under subsection (1) for different provisions.

3. Object

The object of this Act is to provide a regulatory framework that —

(a) recognises the importance of the electronic communication of information to the future economic and social prosperity of Western Australia;

(b) facilitates the use of electronic communication as a way of entering into transactions;

(c) promotes business and community confidence in the use of electronic communication as a way of entering into transactions; and

(d) enables business and the community to use electronic communication in their dealings with government.

Note: These objects are achieved by providing —

(a) that, subject to certain exceptions, a transaction is not invalid for the purposes of a law of the State because it took place by electronic communication;

(b) that things that can or have to be done under a law of the State in relation to any of the following matters can generally be done by electronic communication —

(i) giving information in writing;

(ii) providing a signature;

(iii) producing a document;

(iv) recording information;

(v) retaining a document;

(c) for determining the time and place of the dispatch and receipt of an electronic communication for the purposes of a law of the State; and

(d) that the purported originator of an electronic communication is bound by it for the purposes of a law of the State only if the communication was sent by the purported originator or with the authority of the purported originator.

4. Status of notes

Notes in this Act are provided to assist understanding and do not form part of the Act.

5. Definitions

In this Act —

“consent” includes consent that can reasonably be inferred from the conduct of the person concerned, but does not include consent given subject to conditions unless the conditions are complied with;

“data” includes the whole or part of a computer program within the meaning of the Copyright Act 1968 of the Commonwealth;

“data storage device” means any article or material (for example, a disk) from which information is capable of being reproduced, with or without the aid of any other article or device;

“electronic communication” means —

(a) communication of information in the form of data, text or images by means of guided or unguided electromagnetic energy, or both;

or

(b) communication of information in the form of sound by means of guided or unguided electromagnetic energy, or both, where the sound is processed at its destination by an automated voice recognition system,

and “an electronic communication” has a corresponding meaning;

“information” means information in the form of data, text, images or sound;

“information system” means a system for generating, sending, receiving, storing or otherwise processing electronic communications;

“information technology requirements” includes software requirements;

“law of this jurisdiction” means any law of this jurisdiction, whether written or unwritten, but does not include a law of the Commonwealth;

“non-profit body” means a body that is not carried on for the purposes of profit or gain to its individual members and is, by the terms of the body’s constitution, prohibited from making any distribution, whether in money, property or otherwise, to its members;

“place of business” , in relation to a government, an authority of a government or a non-profit body, means a place where any operations or activities are carried out by that government, authority or body;

“this jurisdiction” means Western Australia;

“transaction” includes any transaction in the nature of a contract, agreement or other arrangement, and also includes any transaction of a non-commercial nature.

6. Crown to be bound

This Act binds the Crown in right of Western Australia and, in so far as the legislative power of Parliament permits, the Crown in all its other capacities.

Part 2 — Application of legal requirements and authorisations to electronic communications

Division 1 — General rule about validity of transactions for the purposes of laws of this jurisdiction

7. Validity of electronic transactions

(1) For the purposes of a law of this jurisdiction, a transaction is not invalid because it took place wholly or partly by electronic communication.

(2) The general rule in subsection (1) does not apply in relation to the validity of a transaction to the extent to which another, more specific, provision of this Part deals with the validity of the transaction.

(3) The regulations may provide that subsection (1) does not apply to a specified transaction or specified class of transactions.

(4) The regulations may provide that subsection (1) does not apply to a specified law of this jurisdiction.

Division 2 — Things done under laws of this jurisdiction

8. Writing

(1) If, under a law of this jurisdiction, a person is required to give information in writing, that requirement is taken to have been met if the person gives the information by electronic communication, where —

(a) at the time the information was given, it was reasonable to expect that the information would be readily accessible then and for subsequent reference; and

(b) the person to whom the information is required to be given consents to the information being given by electronic communication.

(2) If, under a law of this jurisdiction, a person is permitted to give information in writing, the person may give the information by electronic communication, where —

(a) at the time the information was given, it was reasonable to expect that the information would be readily accessible then and for subsequent reference; and

(b) the person to whom the information is permitted to be given consents to the information being given by electronic communication.

(3) This section does not affect the operation of any other law of this jurisdiction that makes provision for or in relation to requiring or permitting information to be given, in accordance with particular information technology requirements —

(a) on a particular kind of data storage device; or

(b) by a particular kind of electronic communication.

(4) This section applies to a requirement or permission to give information, whether the expression “give”, “send” or “serve”, or any other expression, is used.

(5) For the purposes of this section, “giving information” includes, but is not limited to, the following —

(a) making an application;
(b) making or lodging a claim;
(c) giving, sending or serving a notification;
(d) lodging a return;
(e) making a request;
(f) making a declaration;
(g) lodging or issuing a certificate;
(h) making, varying or cancelling an election;
(i) lodging an objection;
(j) giving a statement of reasons.

Note: Section 12 sets out exemptions from this section.

9. Signatures

(1) If, under a law of this jurisdiction, the signature of a person is required, that requirement is taken to have been met in relation to an electronic communication if —

(a) a method is used to identify the person and to indicate the person’s approval of the information communicated;

(b) 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; and

(c) the person to whom the signature is required to be given consents to that requirement being met by the use of the method mentioned in paragraph (a).

(2) This section does not affect the operation of any other law of this jurisdiction that makes provision for or in relation to requiring —

(a) an electronic communication to contain an electronic signature (however described);

(b) an electronic communication to contain a unique identification in an electronic form; or

(c) a particular method to be used in relation to an electronic communication to identify the originator of the communication and to indicate the originator’s approval of the information communicated.

Note: Section 12 sets out exemptions from this section.

10. Production of document

(1) If, under a law of this jurisdiction, a person is required to produce a document that is in the form of paper, an article or other material, that requirement is taken to have been met if the person produces, by electronic communication or otherwise, an electronic form of the document, where —

(a) having regard to all the relevant circumstances at the time the document was produced, the method of generating the electronic form of the document provided a reliable means of assuring the maintenance of the integrity of the information contained in the document;

(b) at the time the document was produced, it was reasonable to expect that the information contained in the electronic form of the document would be readily accessible then and for subsequent reference; and

(c) the person to whom the document is required to be produced consents to the production of an electronic form of the document.

(2) If, under a law of this jurisdiction, a person is permitted to produce a document that is in the form of paper, an article or other material, then, instead of producing the document in that form, the person may produce, by electronic communication or otherwise, an electronic form of the document, where —

(a) having regard to all the relevant circumstances at the time the document was produced, the method of generating the electronic form of the document provided a reliable means of assuring the maintenance of the integrity of the information contained in the document;

(b) at the time the document was produced, it was reasonable to expect that the information contained in the electronic form of the document would be readily accessible then and for subsequent reference; and

(c) the person to whom the document is permitted to be produced consents to the production of an electronic form of the document.

(3) For the purposes of this section, the integrity of information contained in a document is maintained  if, and only if, the information has remained complete and unaltered, apart from —

(a) the addition of any endorsement; or

(b) any immaterial change,

which arises in the normal course of communication, storage or display.

(4) This section does not affect the operation of any other law of this jurisdiction that makes provision for or in relation to requiring or permitting electronic forms of documents to be produced, in accordance with particular information technology requirements —

(a) on a particular kind of data storage device; or

(b) by a particular kind of electronic communication.

11. Retention of information and documents

(1) If, under a law of this jurisdiction, a person is required to record information in writing, that requirement is taken to have been met if the person records the information in electronic form, where —

(a) at the time of the recording of the information, it was reasonable to expect that the information would be readily accessible for subsequent reference; and

(b) if the regulations require that the information be recorded on a particular kind of data storage device, that requirement has been met.

(2) If, under a law of this jurisdiction, a person is required to retain, for a particular period, a document that is in the form of paper, an article or other material, that requirement is taken to have been met if the person retains the document, or causes another person to retain the document, on a data storage device throughout that period, where —

(a) 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;

(b) at the time of recording the document on the data storage device, it was reasonable to expect that the information so recorded would be readily accessible for reference throughout that period; and

(c) if the regulations require that the document be retained on a particular kind of data storage device, that requirement has been met throughout that period.

(3) For the purposes of subsection (2), the integrity of information contained in a document is maintained if, and only if, the information has remained complete and unaltered, apart from —

(a) the addition of any endorsement; or

(b) any immaterial change,

which arises in the normal course of communication, storage or display.

(4) If, under a law of this jurisdiction, a person (the “first person” ) is required to retain, for a particular period, information that was the subject of an electronic communication, that requirement is taken to have been met if the first person retains the information, or causes another person to retain the information, on a data storage device throughout that period, where —

(a) at the time of commencement of the retention of the information, it was reasonable to expect that the information would be readily accessible for reference throughout that period;

(b) having regard to all the relevant circumstances at the time of commencement of the retention of the information, the method of retaining the information provided a reliable means of assuring the maintenance of the integrity of the information contained in the electronic communication;

(c) throughout that period, the first person also retains, or causes the other person to retain, on a data storage device, such additional information obtained by the first person as is sufficient to enable the identification of the following —

(i) the origin of the electronic communication;
(ii) the destination of the electronic communication;
(iii) the time when the electronic communication was sent;
(iv) the time when the electronic communication was received;

(d) at the time of commencement of the retention of the additional information covered by paragraph (c), it was reasonable to expect that the additional information would be readily accessible for reference throughout that period; and

(e) if the regulations require that the information be retained on a particular kind of data storage device, that requirement has been met throughout that period.

(5) For the purposes of subsection (4), the integrity of information that was the subject of an electronic communication is maintained if, and only if, the information has remained complete and unaltered, apart from —

(a) the addition of any endorsement; or

(b) any immaterial change,

which arises in the normal course of communication, storage or display.

12. Exemptions from this Division

(1) The regulations may provide that this Division, or a specified provision of this Division, does not apply to a specified requirement or specified class of requirements.

(2) The regulations may provide that this Division, or a specified provision of this Division, does not apply to a specified permission or specified class of permissions.

(3) The regulations may provide that this Division, or a specified provision of this Division, does not apply to a specified law of this jurisdiction.

Division 3 — Other provisions relating to laws of this jurisdiction

13. Time and place of dispatch and receipt of electronic communications

(1) For the purposes of a law of this jurisdiction, if an electronic communication enters a single information system outside the control of the originator, then, unless otherwise agreed between the originator and the addressee of the electronic communication, the dispatch of the electronic communication occurs when it enters that information system.

(2) For the purposes of a law of this jurisdiction, if an electronic communication enters successively 2 or more information systems outside the control of the originator, then, unless otherwise agreed between the originator and the addressee of the electronic communication, the dispatch of the electronic communication occurs when it enters the first of those information systems.

(3) For the purposes of a law of this jurisdiction, if the addressee of an electronic communication has designated an information system for the purpose of receiving electronic communications, then, unless otherwise agreed between the originator and the addressee of the electronic communication, the time of receipt of the electronic communication is the time when the electronic communication enters that information system.

(4) For the purposes of a law of this jurisdiction, if the addressee of an electronic communication has not designated an information system for the purpose of receiving electronic communications, then, unless otherwise agreed between the originator and the addressee of the electronic communication, the time of receipt of the electronic communication is the time when the receipt of the electronic communication comes to the attention of the addressee.

(5) For the purposes of a law of this jurisdiction, unless otherwise agreed between the originator and the addressee of an electronic communication —

(a) the electronic communication is taken to have been dispatched from the originator’s place of business; and

(b) the electronic communication is taken to have been received at the addressee’s place of business.

(6) For the purposes of the application of subsection (5) to an electronic communication —

(a) if the originator or addressee has more than one place of business, and one of those places has a closer relationship to the underlying transaction, it is to be assumed that that place of business is the originator’s or addressee’s only place of business;

(b) if the originator or addressee has more than one place of business, but paragraph (a) does not apply, it is to be assumed that the originator’s or addressee’s principal place of business is the originator’s or addressee’s only place of business; and

(c) if the originator or addressee does not have a place of business, it is to be assumed that the originator’s or addressee’s place of business is the place where the originator or addressee ordinarily resides.

(7) The regulations may provide that this section does not apply to a specified electronic communication or specified class of electronic communications.

(8) The regulations may provide that this section does not apply to a specified law of this jurisdiction.

14. Attribution of electronic communications

(1) For the purposes of a law of this jurisdiction, unless otherwise agreed between the purported originator and the addressee of an electronic communication, the purported originator of the electronic communication is bound by that communication only if the communication was sent by the purported originator or with the authority of the purported originator.

(2) Subsection (1) does not affect the operation of a law of this jurisdiction that makes provision for —

(a) conduct engaged in by a person within the scope of the person’s actual or apparent authority to be attributed to another person; or
(b) a person to be bound by conduct engaged in by another person within the scope of the other person’s actual or apparent authority.

(3) The regulations may provide that this section does not apply to a specified electronic communication or specified class of electronic communications.

(4) The regulations may provide that this section does not apply to a specified law of this jurisdiction.

(5) Subject to the regulations, this Act applies, with any necessary modifications, to conduct referred to in subsection (2).

15. Regulations

The Governor may make regulations prescribing all matters that are required or permitted by this Act to be prescribed, or are necessary or convenient to be prescribed for giving effect to the purposes of this Act.

Australia Spam Act 2003

Act No. 129 of 2003 as amended

This compilation was prepared on 1 July 2005
taking into account amendments up to Act No. 45 of 2005

The text of any of those amendments not in force
on that date is appended in the Notes section

The operation of amendments that have been incorporated may be
affected by application provisions that are set out in the Notes section

Prepared by the Office of Legislative Drafting and Publishing,
Attorney-General’s Department, Canberra

An Act about spam, and for related purposesPart 1-Introduction

1 Short title

This Act may be cited as the Spam Act 2003.

2 Commencement

(1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

(2)  Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.

3 Simplified outline

The following is a simplified outline of this Act:

• This Act sets up a scheme for regulating commercial e?mail and other types of commercial electronic messages.
• Unsolicited commercial electronic messages must not be sent.
• Commercial electronic messages must include information about the individual or organisation who authorised the sending of the message.
• Commercial electronic messages must contain a functional unsubscribe facility.
• Address?harvesting software must not be supplied, acquired or used.
• An electronic address list produced using address?harvesting software must not be supplied, acquired or used.
• The main remedies for breaches of this Act are civil penalties and injunctions.

Note: The Telecommunications Act 1997 contains additional provisions about commercial electronic messages. Those provisions include Part 6 (industry codes and standards), Part 26 (investigations), Part 27 (information?gathering powers) and Part 28 (enforcement).

4 Definitions

In this Act, unless the contrary intention appears:

account includes:

(a)  a free account; and

(b)  a pre?paid account; and

(c)  anything that may reasonably be regarded as the equivalent of an account.

ACMA means the Australian Communications and Media Authority.

acquire, when used in relation to goods or services, has the same meaning as in the Trade Practices Act 1974.

address?harvesting software means software that is specifically designed or marketed for use for:

(a)  searching the Internet for electronic addresses; and

(b)  collecting, compiling, capturing or otherwise harvesting those electronic addresses.

agency includes:

(a)  an armed force; and

(b)  a police force.

Australia, when used in a geographical sense, includes the external Territories.

Australian link has the meaning given by section 7.

authorise, when used in relation to the sending of an electronic message, has a meaning affected by section 8.

business includes a venture or concern in trade or commerce, whether or not conducted on a regular, repetitive or continuous basis.

carriage service has the same meaning as in the Telecommunications Act 1997.

civil penalty provision means any of the following provisions:

(a)  subsections 16(1), (6) and (9);

(b)  subsections 17(1) and (5);

(c)  subsections 18(1) and (6);

(d)  subsections 20(1) and (5);

(e)  subsections 21(1) and (3);

(f)  subsections 22(1) and (3);

(g)  a provision of the regulations that is declared to be a civil penalty provision in accordance with paragraph 45(2)(c).

commercial electronic message has the meaning given by section 6.

consent, when used in relation to the sending of an electronic message, has the meaning given by Schedule 2.

data processing device has the same meaning as in the Telecommunications Act 1997.

dealing with, when used in relation to a commercial electronic message, includes:

(a)  accessing the message; and

(b)  responding to the message; and

(c)  filtering the message.

designated commercial electronic message has the meaning given by Schedule 1.

director includes a member of the governing body of an organisation.

educational institution includes:

(a)  a pre?school; and

(b)  a school; and

(c)  a college; and

(d)  a university.

electronic message has the meaning given by section 5.

employee includes an individual who is in the service of an armed force, a police force or a religious organisation.

evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.

Federal Court means the Federal Court of Australia.

goods has the same meaning as in the Trade Practices Act 1974.

government body means:

(a)  a department of the Commonwealth, a State or a Territory; or

(b)  an agency, authority or instrumentality of the Commonwealth, a State or a Territory; or

(c)  a department of the government of a foreign country; or

(d)  an agency, authority or instrumentality of the government of a foreign country; or

(e)  a department of the government of a part of a foreign country; or

(f)  an agency, authority or instrumentality of the government of a part of a foreign country.

harvested?address list means:

(a)  a list of electronic addresses; or

(b)  a collection of electronic addresses; or

(c)  a compilation of electronic addresses;

where the production of the list, collection or compilation is, to any extent, directly or indirectly attributable to the use of address?harvesting software.

international convention means:

(a)  a convention to which Australia is a party; or

(b)  an agreement between Australia and a foreign country.

Internet carriage service means a listed carriage service that enables end?users to access the Internet.

investment means any mode of application of money or other property for the purpose of gaining a return (whether by way of income, capital gain or any other form of return).

listed carriage service has the same meaning as in the Telecommunications Act 1997.

logo includes a trade mark.

message means information:

(a)  whether in the form of text; or

(b)  whether in the form of data; or

(c)  whether in the form of speech, music or other sounds; or

(d)  whether in the form of visual images (animated or otherwise); or

(e)  whether in any other form; or

(f)  whether in any combination of forms.

mistake means reasonable mistake of fact.

organisation includes:

(a)  a body corporate; and

(b)  a partnership; and

(c)  a government body; and

(d)  a court or tribunal; and

(e)  an unincorporated body or association.

Express references in this Act to organisations do not imply that references in this Act to persons do not include bodies politic or corporate.

Note:   Paragraph 22(1)(a) of the Acts Interpretation Act 1901 provides that person includes a body politic or corporate as well as an individual.

penalty unit has the meaning given by section 4AA of the Crimes Act 1914.

person includes a partnership.

publish includes:

(a)  publish on the Internet; and

(b)  publish to the public or a section of the public.

registered political party means a political party, or a branch or division of a political party, that is registered under:

(a)  the Commonwealth Electoral Act 1918; or

(b)  a law of a State or Territory that deals with electoral matters.

relevant electronic account?holder, in relation to the sending of an electronic message to an electronic address, means:

(a)  if the electronic address is an e?mail address-the individual or organisation who is responsible for the relevant e?mail account; or

(b)  if the message is sent to an electronic address in connection with an instant messaging service-the individual or organisation who is responsible for the relevant instant messaging account; or

(c)  if the electronic address is a telephone number-the individual or organisation who is responsible for the relevant telephone account; or

(d)  in any other case-the individual or organisation who is responsible for the relevant account.

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