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• Electronic Commerce

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• Electronic Transactions Act

• Electronic Transaction Bill
• Discussion Paper 2000
• ETA 2002: Plain Language
• Discussion Paper 2003
• Draft Regulations 2003

• General Policy Statement
• Part by Part Analysis
  • Part 1: Preliminary
  • Part 2: Improving Certainty In Relation to Electronic Information and Electronic Communications
  • Part 3: Application of Legal Requirements to Electronic Transactions

General Policy Statement

The objective of the Bill is to facilitate the use of electronic technology and to contribute to the Government's goal of growing an inclusive innovative economy for the benefit of all New Zealanders. It is intended to -

• Reduce compliance and transaction costs for business and the general public:
• Remove legislative impediments to dealing with government electronically:
• Promote consistency between New Zealand law and that of our major trading partners, particularly Australia:
• Promote the development of electronic commerce.

The Bill achieves this by -

• Reducing uncertainty regarding the legal effect of electronic information, and the time and place of dispatch and receipt of electronic communications:
• Allowing certain paper-based legal requirements, such as a requirement for writing, a signature, or the retention of documents, to be met by using electronic technology that is functionally equivalent to those paper-based legal requirements.

Where an enactment already permits the use of electronic technology, the Bill does not override any specific requirements with respect to that technology. In addition, the Bill excludes a number of enactments from its scope where it is considered that the use of electronic technology is inappropriate.

The Bill is facilitative only. No one is required to use electronic technology by virtue of this Bill.

The Bill is based on work carried out by the Law Commission and closely follows both the Model Law on Electronic Commerce prepared by the United Nations Commission on International Trade Law (UNCITRAL) in 1996 and the Australian Electronic Transactions Act 1999 (Cth).

Part by Part Analysis

The Bill (except the empowering provisions for making regulations) comes into force on a date to be appointed by the Governor-General by Order in Council. The empowering provisions for making regulations come into force on the day after the date on which the Bill receives the Royal assent. This will enable regulations that specify additional requirements, if any, to be made before the Bill comes into force.

Part 1: Preliminary

Part 1deals with the following matters:

• The purpose of the Bill:
• Overview of provisions:
• Interpretation:
• The Act binding the Crown.

The purpose of the Bill is to facilitate the use of electronic technology. This is achieved in 2 ways -

• Firstly, the Bill reduces uncertainty regarding the legal effect of electronic information, and the time and place of dispatch and receipt of electronic communications (seePart 2):
• Secondly, the Bill allows certain paper-based legal requirements, such as a requirement for writing, a signature, or the retention of documents, to be met by using functionally equivalent electronic technology (seePart 3).

The definition of electronic in clause5 is broad and includes technologies that are not strictly electronic.

The Bill technology neutral as it does not specify or favour particular technologies and applies equally to existing and new technologies.

Clause 6 provides that the UNCITRAL Model Law and any UNCITRAL document relating to the Model Law may be referred to in interpreting the Bill.

Part 2: Improving Certainty In Relation to Electronic Information and Electronic Communications

Part 2 reduces uncertainty regarding the legal effect of electronic information, and the time and place of dispatch and receipt of electronic communications.

Clause 8 confirms that information is not legally ineffective simply because it is -

• In electronic form or communicated by electronic means:
• Incorporated by reference in an electronic communication.

For example, clause 8 confirms that it is possible to enter into a contract using electronic communications if all other requirements for an enforceable contract are met.

Clauses 9, 10, 11, 12 and 13 set out default rules regarding the time and place of dispatch and receipt of electronic communications. The rules -

• Can be overridden by agreement between the parties to an electronic communication:
• Do not apply to the extent that an enactment provides its own rules.

Part 3: Application of Legal Requirements to Electronic Transactions

Part 3allows certain legal requirements to be met, subject to conditions specified in Subpart 2, by using functionally equivalent electronic technology.

The legal requirements are as follows:

• That information be in writing:
• That information be recorded in writing:
• That information be given in writing:
• That information be signed:
• That a signature or seal be witnessed:
• That information (whether in paper or electronic form) be retained.
• That information (whether in paper or electronic form) be provided or produced to a person:
• That a person be required to provided access to information (whether or electronic form):
• That a document be compared with an original.

The Bill specifies the conditions that must be met to achieve functional equivalence. For example, an electronic communication is functionally equivalent to writing only if it is accessible so as to be usable for subsequent reference.

The consent of certain persons must be given as a condition for meeting some legal requirements by using electronic technology.

Clause 14 provides that Part 3 is overarching legislation that applies to every enactment passed before or after the commencement of the Bill with the exception of -

• Enactments that require the use of specified electronic technology:
• Enactments specified, and provisions of enactments described, in the Schedule.