The case for adoption of the UN Electronic Communications Convention

Transcription

1 2014 UNCITRAL South Asia Seminar The case for adoption of the UN Electronic Communications Convention Joy Cheng, Acting Senior Legal Officer Attorney-General s Department, Australia

2 The role of the Attorney-General s Department Click to edit Master text styles Portfolio responsibilities: law and justice, national security, emergency Second level management, arts and culture Third Manage level the electronic transactions legal framework

3 Structure of this presentation 1. Australia s legal framework for electronic transactions Click to edit Master text styles 2. Effectiveness of Australia s legal framework 3. Steps towards accession 4. Benefits from accession Second level Two phases of development of Australia s legal framework: 1. Implementation of UNCITRAL s Model Law on Electronic Commerce Third 1996level 2. Amendments anticipating accession to the UN Electronic Communications Convention

4 Australia s legal framework The Click significance to edit of UNCITRAL s Master text Model styles Law: Furthering UNCITRAL s mandate: to promote harmonisation and unification of international Second trade law, level to remove barriers to international trade Responding to a major change in means of Third communication level Providing an important tool for evaluating and modernising domestic laws

5 Australia s legal framework Click to edit Master text styles Uniform laws based on UNCITRAL s Model Law Nine Australian jurisdictions: Commonwealth, Second States and level Territories No single legal framework Third level Uniform laws in each Australian jurisdiction based on the Model Law

6 Australia s legal framework Basic Click Principles to edit Master text styles Australia s laws embody the basic principles from Second the Model level Law: 1. Functional equivalence 2. Third Technological level neutrality 3. Party autonomy

7 Australia s legal framework Key Click features to of edit Australia s Master uniform text laws styles Provide for validity of electronic transactions occurring under Australian laws Second Giving information, level signature, producing a document, recording or retaining information can be done electronically Third Apply level to dealings with Government or private dealings Consent (express or implied) required to receive Fourth information level electronically

8 Australia s legal framework Click to edit Master text styles The Commonwealth Electronic Transactions Act 1999 Accompanied by Electronic Transactions Regulations 2000 Second Applies level to all Commonwealth legislation unless there is an exemption in the Regulations Third Introduced level in a two-step implementation process

9 Australia s legal framework Click to edit Master text styles Exceptions to the Commonwealth Electronic Transactions Act Policy reasons Examples: Second documents level with a high risk of fraud e.g. visas or cheques where an agency does not have procedures to ensure information is securely transmitted Third where level important to ensure there is only one copy e.g. passport Currently reviewing exceptions

10 Effectiveness of Australia s electronic transaction laws Click Provide to a edit light-handed Master framework text styles Remove legal impediments for communication and trade Second level Provide certainty Third Do not levelresult in significant litigation Receive good feedback from stakeholders Anticipate technological advances

11 Towards accession of the UN Electronic Communications Convention The Click significance to edit of the Master Convention text styles Enables electronic communications in trade Builds on the Model Law by offering practical Second solutions level to issues arising from electronic communications in cross-border contracts Third Incorporates level the basic principles of the Model Law

12 Towards accession of the UN Electronic Communications Convention Accession Click to edit Master text styles Article 16(3) allows accession by non-signatory States Second Australia s level policy is not to be bound by a treaty until enabling laws are in place Third Attorney-General s level Department is responsible for checking enabling laws are sufficient

13 Towards accession of the UN Electronic Communications Convention Public Click consultation to edit Master text styles Public consultation paper released Second by Attorney-General s level Department in November 2008 Third level Nine submissions received, all supporting accession

14 Towards accession of the UN Electronic Communications Convention Click to edit Master text styles Implementation of treaties in Australia s federal system Enabling laws needed to be passed in each Australian jurisdiction due to Australia s Constitution Second Model provisions level approved by Australian Attorneys- General in 2010 Commonwealth leads accession, in consultation with Third States level and Territories Amendments have been enacted in all jurisdictions Fourth since level 2013

15 Towards accession of the UN Electronic Communications Convention The Electronic Transactions Amendment Act 2011 Click to edit Master text styles Did not require significant changes to existing laws Clarified traditional rules on contract formation Recognised automated message systems, clarified an invitation to treat, created rules to determine the location of the parties, amended electronic Second level signature provisions and default rules for time and place of dispatch and receipt Extended to general consumer contracts despite the exclusion in the Third Convention level Improved the general operation of the Act Fourth Applied level to both domestic and international contracts

16 Towards accession of the UN Electronic Communications Convention Parliamentary Click to Scrutiny edit Master text styles Scrutiny by Parliament must take place before binding treaty action Second Treaty must level be tabled in Parliament along with a national interest analysis Treaties are considered by the Joint Standing Third Committee level on Treaties The Committee recommended accession of the Fourth Convention level

17 Towards accession of the UN Electronic Communications Convention Next Click stepsto edit Master text styles Government is in a position to consider accession Approval by Federal Executive Council is required Second Responsible levelminister needs to consult the Minister for Foreign Affairs, the Attorney-General and other Third interested level Ministers Consideration of accession is ultimately a matter Fourth for Government level

18 The benefits from acceding to the Convention Click Modernisation to edit of Australia s Master laws text styles International harmonisation Strengthening legal certainty in international electronic Second communications level and trade Increasing confidence in participation in cross-border electronic commerce Third Improving level the efficiency of commercial activities Promoting trade, economic development and relations with other countries