Executive Summary
1. The Government intends to introduce an Electronic Transactions Bill.
2. The Bill is intended to advance the Government's goal of facilitating, for both economic and social reasons, the use of modern technology. It is one of a number of initiatives the Government is undertaking to ensure New Zealand is well placed to take advantage of the knowledge economy.
3. Specifically, the purpose of this Bill is to:
- remove certain legislative impediments currently preventing the use of electronic technology for communications and record-keeping in some areas; and
- remove avoidable uncertainty surrounding the legal status of electronic communications and related uses of modern technology.
4. It is proposed that the Bill will take the form of overarching legislation which will modify statutory requirements to use paper based methods of communication and record keeping to allow dealings to take place electronically if both parties consent. The Bill will also provide that statutory obligations to keep records of various kinds can be met using electronic records. There will be some exceptions where certain electronic dealings or record-keeping obligations will be excluded from the scope of the Bill.
5. The proposal to have overarching legislation carries some risk. It may inadvertently allow the use of electronic technology in some context where it is not appropriate.
6. This discussion document has been developed to facilitate feedback from government departments and interested parties on the proposed Bill to ensure any unintended consequences are identified and the Bill modified as appropriate.
7. Specifically comment is invited:
- from government departments and relevant agencies, on the scope and implications of the bill for the legislation they administer and/or under which they operate;
- from interested parties, on the scope and implications of the Bill for their operations; and
- on whether the proposed legislative changes will achieve the objectives outlined in the discussion document.
8. The discussion document is in two parts. Part I sets out the purpose and rationale for the bill, the contents of the bill including how the Bill will operate in general and the limits of the Bill. Part II describes the proposed legislation in more detail, outlines the specific issue to be addressed, the rationale for the proposed amendment and asks for your response to a number of questions.
9. In outline, it is proposed the Bill will:
- provide that no transaction1 will be denied legal effect merely because it took place using electronic technology;
- allow information which must be provided "in writing" pursuant to a statute to be provided in electronic form, if the information is accessible so as to be usable for subsequent reference, and if the recipient has agreed to receive the information electronically using the method in question;
- enable statutory requirements for a signature to be satisfied by an electronic equivalent, if the electronic method used is sufficiently reliable for the relevant purpose;
- allow documents which are produced for the purposes of a statute to be produced in electronic form, subject to certain requirements designed to ensure the integrity of the electronic version. This would allow electronic methods to be used where, for example, a statute requires an original document to be produced;
- allow records to be made and kept in electronic form, both where the original transaction was electronic and where it was paper-based, subject to requirements designed to ensure the integrity and continued availability of the records;
- provide default rules in relation to the time and place of dispatch and receipt of electronic messages; and
- limit the liability of Internet Service Providers (ISPs) (e.g. for defamation or breach of copyright) in respect of information which they store or transmit unless an ISP has actual knowledge of the existence of information which is actionable at civil law or gives rise to a criminal offence, and fails to remove it promptly after becoming aware of it.
10. The proposed Bill is drawn from the work of the Law Commission in its second report on electronic commerce published in 1999 and on the model law on electronic Commerce issued by UNCITRAL (the United Nations Commission for International Trade law) in 19962.
11. Please can you ensure your submissions reach us by 14 July 2000.
Purpose of Discussion Document
12. The Ministry of Economic Development has developed this discussion document to:
- seek feedback from government departments and agencies on the scope and implications of the Bill for the legislation they administer or under which they operate; and
- seek feedback from interested parties on the scope and implications of this Bill for their operations; and
- seek comment on whether the proposed legislative changes will achieve the objectives outlined in the discussion document.
13. The Bill will be general in scope. There will be some exceptions however where electronic dealings or record-keeping obligations will be excluded from the scope of the Bill and consequently not permitted without further primary legislation. There will also need to be a mechanism put in place to allow further exclusions, should they prove necessary, once the Bill has been enacted. In other jurisdictions this has been achieved by providing for exceptions to be added in regulations. In addition the Bill will not apply where a statute makes specific provision for specific information technology format requirements that must be followed when communicating, or storing certain types of record.
14. The proposal to have overarching legislation applicable to all statutory requirements for paper-based dealings or record-keeping that are not expressly excluded from its scope may carry some risk. It may inadvertently allow the use of electronic technology where it is not appropriate, even with the consent of the relevant parties. This risk is not considered to be high, provided that departments give careful consideration to whether any legislation they administer should be excluded, either in part or in full, from this Bill.
15. The discussion document is divided into two parts:
- Part I sets out the purpose and rationale for the Bill, the contents of the Bill including how the Bill will operate in general and the limits of the Bill: and
- Part II describes the proposed legislation in more detail. The specific issue each provision is designed to address is outlined, the Ministry's proposed solution identified and the rationale for the proposed solution explained. A number of specific questions are then asked to which the Ministry is seeking your response.
16. To make a submission please do so in writing to:
Brooke Martin
33 Bowen Street
PO Box 1473
Wellington
E-mail; brooke.martin@med.govt.nz
17. Please note that to be considered, submissions must be received by Friday, 14 July 2000. Where possible, early submissions would be appreciated. An early submission does not preclude parties from making later submissions covering additional areas of concern.
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