Electronic Transactions Act 2002 - Part 3: Application of Legal Requirements to Electronic Transactions
Part 3 (Sections 14 to 38) of the ETA contains provisions that enable a range of legal requirements in New Zealand statutes and regulations to be satisfied using electronic technology that is functionally equivalent to the paper-based technology contemplated by those laws.
Subpart 1 (Sections 14 to 17) contains a number of preliminary provisions.
Subpart 2 (Sections 18 to 32) indicates the way in which certain legal requirements (e.g. for writing, or a signature) can be met by electronic means.
Subpart 3 (Sections 33 to 38) contains a number of general provisions that ensure that Subpart 2 will achieve its intended effect.
Subpart 1 - Preliminary
Section 14 - When Part Applies
Section 14(1) provides that Part 3 of the ETA is over-arching legislation, which applies to every enactment (i.e. statutes and regulations) passed either before or after the ETA comes into force.
Section 14(2) sets out a number of exclusions from Part 3.
The main exclusions are:
- Enactments which require use of particular electronic technology, or a particular kind of data storage device, or a particular kind of electronic communication. The ETA is not intended to override legislation which specifies how electronic technology may be used to meet its requirements.
- Certain enactments relating to electoral matters, specified in Part 1 of the Schedule to the ETA.
- Specific provisions of existing Acts which have been identified as specifying paper-based requirements that should not be permitted to be met by electronic means, as this could prejudice the policy objectives of those provisions. These are listed in Part 2 of the Schedule.
- Legal requirements in relation to certain types of notice or information or document, where there is no functional equivalent for the paper-based requirement in the statute, or where the policy objectives of legislation in relation to those notices/documents would be prejudiced if electronic technology were used, at least given the current state of technology. These are listed in Part 3 of the Schedule.
- Provisions of legislation relating to certain courts and tribunals specified in Part 4 of the Schedule, except to the extent that the use of electronic technology is permitted under rules made by the court or guidelines issued with the authority of the court or tribunal. This exclusion ensures that courts and tribunals can manage the application of the ETA to proceedings before them, including specifying in their rules/guidelines any additional safeguards required to protect the interests of parties or other persons affected by the proceedings. The ETA thus empowers courts and tribunals to make rules or issue guidelines in relation to use of electronic technology, which will then be effective for the purposes of enactments that apply to their practice or procedure.
Section 14(3) permits an Order in Council to be made amending the Schedule or repealing and replacing the Schedule. This is intended to accommodate:
- Developments in technology over time, which may mean that specified provisions need no longer be excluded from the scope of the ETA;
- The possibility that it will be discovered that provisions of enactments that should have been excluded from the ETA were overlooked. Although an exhaustive review was carried out of all legislation by responsible departments, the sheer scale and complexity of the task means that it is possible that some provisions that ought to have been excluded have been overlooked. Most countries that have enacted legislation based on the Model Law on Electronic Commerce have included a provision along these lines, to enable additional exclusions to be added by secondary legislation.
Section 14(4) and (5) make clear the effect of the Governor-General amending the Schedule. Additions made to the Schedule need to be confirmed by Parliament. If they are not confirmed they expire at a specified time and expiry does not effect the validity of acts done prior to expiry.
Section 15 - When Legal Requirement Can Be Met by Electronic Means
Section 15(1) states that the basic requirements that must be met in order to use electronic technology to meet legal requirements are that:
- the provisions in Subpart 2 (Sections 18 to 32) must be satisfied; and
- in addition, any conditions prescribed by applicable regulations made under section 35 (e.g. in relation to the technology to be used, or in relation to format of a communication) must be satisfied.
Section 15(2) defines the term "legal requirement" broadly for the purposes of the ETA.
- The ETA applies to any requirement in an enactment to which Part 3 applies (i.e. any enactment other than those excluded under Section 14);
- The ETA also applies to a provision in an enactment to which Part 3 applies that imposes an obligation on some person, or where certain legal consequences follow depending on whether or not the provision is complied with. In other words, the concept of "requirement" has been broadened to include any provision under which failure to comply with a relevant requirement has a legal consequence. Thus where a statute permits an application for a licence to be made in writing to some agency, and the agency is only required to consider valid applications, the requirement that the application be in writing is a "legal requirement" for the purposes of the ETA. A "provision" in means a statutory provision - it does not mean provisions in contracts.
Section 16 - Consent to Use of Electronic Technology
Section 16(1) is intended to make it clear that nothing in Part 3 of the ETA requires any person to use, provide, or accept information in an electronic form without that person's consent. The ETA is intended to make it possible for people to use electronic technology, but not to compel them to do so. This is probably implicit in the other provisions of the ETA, but SubSection (1) has been included to put the matter beyond doubt.
Section 16(2)(a) makes it clear that where the ETA requires a person to consent to the use or provision of information in electronic form, that consent may be conditional on use of particular technology, or format, or other similar requirements. This is implicit in the consent requirement, but is set out in paragraph (a) to avoid any doubt on the matter.
Section 16(2)(b) makes it clear that consent to receipt of electronic information may be inferred, and need not be express in every case. A simple example would be where a Government agency provides a website through which an application may be made - for example, for a licence of some kind - which a statute requires to be made in writing. No express consent to that person applying electronically is required - making the electronic means to make the application available on the Internet would constitute implied consent.
Many Government departments and other recipients of statutory communications are likely to issue guidelines in relation to when they will or will not accept electronic communications. In the case where there has been an explicit statement of this kind, it is most unlikely that consent to use of electronic technology in a manner inconsistent with those guidelines could be inferred from conduct.
Section 17 - When Integrity of Information Maintained
A number of provisions of Subpart 2 permit the use of electronic technology only if the integrity of information is maintained. Section 17 specifies that for the purposes of Part 3, the integrity of information is maintained only if the information has remained complete and unaltered, other than the addition of any endorsement, or any immaterial change, that arises in the normal course of communication, storage or display. In other words, if particular information is required to be retained under a statute, Subpart 2 does not permit electronic storage of that information in a way that loses some of the required information, or alters some of that information in any material way.
The term "integrity" is used in the Model Law on Electronic Commerce (article 8), the Australian Electronic Transactions Act 1999 (sections 11 and 12) and legislation in Canada, including the Ontario Electronic Commerce Act 2000 (section 8). Integrity is a broader concept than accuracy.
The term "normal course" is used in the Australian Electronic Transactions Act 1999 (sections 11 and 12) and the Model Law on Electronic Commerce (article 8). This term is used because in the cases of electronic information it is the process that has to be relied upon to guarantee the integrity/accuracy of the information. If the normal course is not followed then the final result cannot be relied upon. If this causes people to be careful then this is a beneficial result. The interpretation of Section 17 as technology evolves should not be problematic, as the interpretation of "normal course" can easily change to reflect changes in technology.
Subpart 2 - Legal Requirements
Writing
Sections 18 to 21 are concerned with legal requirements in relation to written information. They address requirements for information to be in writing (Section 18), to be recorded in writing (Section 19), and to be given in writing (Section 20). They are based on Section 9 of the Australian Electronic Transactions Act 1999, and Article 6 of the Model Law on Electronic Commerce.
Section 18 - Legal Requirement That Information Be in Writing
Many statutes require certain information to be in writing. Section 18 permits information to be in electronic form, rather than on paper, if the information is "readily accessible so as to be usable for subsequent reference." This requirement lies at the core of the Model Law on Electronic Commerce, and the statutes in many countries implementing the Model Law.
The conclusion reached at UNCITRAL was that the function of having information in writing, or communicating it in writing, was to ensure that it was readily accessible so as to be usable for subsequent reference. This can be seen as a "functional" description of what the statutes require. In effect, writing is one means of ensuring information is "readily accessible so as to be usable for subsequent reference." The ETA effectively substitutes for a statutory requirement to use this one means by allowing the use of electronic means so long as they achieve the same end.
Section 19 - Legal Requirement to Record Information in Writing
Section 19 provides that a legal requirement to record information in writing can be met by recording the information in electronic form if the Model Law on Electronic Commerce's "functional equivalent" test is met, i.e. if the information is readily accessible so as to be usable for subsequent reference.
Section 20 - Legal Requirement to Give Information in Writing
Many statutes require information to be given in writing. These requirements are expressed in a range of forms. Section 20(4) makes it clear that when the Section speaks of legal requirements to give information in writing, it includes requirements that writing be used to make an application, make or lodge a claim, make a request, and so forth. The idea is that any statutory provision which contemplates the use of writing to convey information will be caught by Section 20.
Section 20(1) permits the use of electronic means to give information that is legally required to be given in writing if two requirements are met:
- first, the information must meet the functional equivalence test, i.e. must be readily accessible so as to be usable for subsequent reference; and
- second, the person to whom the information is required to be given must consent to the information being given in electronic form and (where applicable) by means of an electronic communication. (It is possible for information to be provided in electronic form but not by means of an electronic communication - consider, for example, providing data on a floppy disk which is hand delivered or couriered to the recipient.)
Section 20(2) makes it clear that statutes (particularly older statutes) that require the provision of multiple copies of the same information in writing (e.g. requirements to make an application in duplicate, or triplicate) can be complied with by providing a single electronic version of the information. There is no point providing the same (infinitely reproducible or copyable) electronic file more than once.
Some statutes not only require that information be provided in writing, but also specify that that information should be "filed" or "sent" or "posted", or delivered by some other specified manner. SubSection (3) makes it clear that Section 20 applies to a legal requirement to give information even where the information is required to be given in a specified manner. [Note however the exclusions in Part 3 of the Schedule to the ETA in relation to information required to be given in person, or by registered post (para (b)), and notices that are required to be attached to any thing or left or displayed in any place (para (c))].
Section 21 - Legal Requirements Relating to Layout and Format of Certain Information and Writing Materials
Some statutes contain additional requirements in relation to the form or layout of written information. Indeed some of these go so far as to specify that information must be written in ink, or on a particular quality of paper, or with particular margins. Section 21 makes it clear, for the avoidance of doubt, that where information is recorded or provided electronically in accordance with Sections 18 to 20, form and layout requirements of this kind need not be complied with, hence removing an obstacle to the use of electronic technology. This prevents any argument that, because electronic information is not written "in ink", the ETA does not apply to such requirements.
Signatures
Sections 22 to 24 are concerned with legal requirements for a signature, and specify the circumstances in which such requirements can be met using an electronic signature.
The term "electronic signature" could cover anything from an electronic facsimile of a hand-written signature through to an electronic signature provided by a certification authority using encryption technology, or a biometric method of confirming identity. The intention is that the concept should be a very broad one, with any information that is intended to be used as a signature being acceptable provided it meets the functional equivalence requirements in Sections 22-24. (This mirrors the common law approach to what amounts to a signature - it has always been the position at common law, for example, that a mark made by someone who cannot write their name, with the intention of signing, amounts to a signature.)
Sections 22 to 24 are based on Section 10 of the Australian Electronic Transactions Act 1999, and Article 7 of the Model Law on Electronic Commerce.
Section 22 - Legal Requirement for Signature
Section 22 provides that a legal requirement for a signature other than the signature of a witness can be met using an electronic signature if three requirements are met:
- the electronic signature must adequately identify the signatory and adequately indicate the signatory's approval of information to which the signature relates;
- the signature must be as reliable as appropriate given the purpose for which, and the circumstances in which, the signature is required; and
- where information which must be given to a person is required to be signed, the recipient must have consented to receiving the electronic signature, rather than a traditional paper-based signature.
The first two requirements are drawn from the Model Law on Electronic Commerce (see Article 7). The third is simply a statement of the consent requirement that underpins the ETA.
The question of whether an electronic signature is as reliable as is appropriate given the purpose for which, and the circumstances in which, it is required, is one that may be difficult to answer in the early years of operation of the ETA, and in relation to novel technologies. A very general test of this kind is inevitable, if specification of particular technologies is to be avoided. This technology-neutral approach lies at the heart of the Model Law on Electronic Commerce, but does result in open-textured tests of this kind. Section 24 (discussed below) provides some guidance in applying this test.
Note that the ETA deliberately does not deal with attribution, that is left to the same common law rules that apply to paper based signatures.
See also discussion under Section 5 above.
Section 23 - Legal Requirement that Signature or Seal Be Witnessed
A significant number of statutes require a signature or a corporate seal to be witnessed. Section 23 makes provision for witnesses to witness a document using an electronic signature, if:
- where a signature is being witnessed, that signature is also an electronic signature; and
- the electronic signature of the witness meets requirements that correspond to those for a primary signature in Section 22, i.e. the electronic signature adequately identifies the witness and adequately indicates that the signature or seal has been witnessed; is as reliable as is appropriate given the purpose for which, and the circumstances in which, the signature of the witness is required; and, in the case of a witness's signature on information required to be given to a person, the recipient of the information has consented to the use of an electronic signature rather than a traditional paper-based signature.
Section 24 - Presumption about Reliability of Electronic Signatures
This Section establishes a rebuttable presumption that certain electronic signatures are reliable. This Section is modelled on Article 6 of the Model Law on Electronic Signatures, a document developed after the Model Law on Electronic Commerce and after the United States Uniform Electronic Transactions Act (UETA), Canadian and Australian legislation (and for this reason not incorporated into that legislation).
The point of this Section is to provide certainty in the use of certain electronic signatures that have proved to be reliable. Section 24 is not limited to public key infrastructure (PKI) technologies and can be satisfied by other forms of electronic signature, e.g. using biometric techniques.
Section 24(1) creates a rebuttable presumption that an electronic signature is as reliable as appropriate (and thus satisfies that requirement in Sections 22 and 23) if four requirements are satisfied:
- the means of creating the electronic signature must be linked to the signatory and to no other person (e.g. an authorisation code known only to the signatory, or a biometric authorisation mechanism);
- the means of creating the electronic signature must be under the control of the signatory and of no other person (e.g. where a private key is required to create an encrypted electronic signature: that private key must be under the control of the signatory alone);
- any alteration to the electronic signature made after the time of signing must be detectable (this is the case for most electronic signature technologies administered by certification authorities);
- where the purpose of the legal requirement for a signature is to provide assurance as to the integrity of the information to which it relates, any alteration made to that information after the time of signing must be detectable. Not every signature is required to provide assurance as to the integrity of information, but this is one common function of a signature. This requirement ensures that where that is the purpose for which the law requires a signature, there will be a presumption that the electronic signature is as reliable as appropriate only if the technology used to create the electronic signature would reveal any post-signing alteration to that information. Once again, most currently available electronic signature systems administered by certification authorities meet this requirement.
Section 24(2) makes it clear that the presumption in Section 24(1) can be rebutted, and also that even if the requirements in Section 24(1) are not met, it is still open to a person to show that an electronic signature was as reliable as appropriate for the purposes of Section 22 or Section 23.
Retention
Sections 25 to 27 are concerned with the many legal requirements found in New Zealand legislation to retain information for various purposes.
Section 25 permits legal requirements to retain information that is in paper or other non-electronic form to be met by retaining an electronic copy in certain circumstances.
Section 26 is intended to clarify how legal requirements to retain information can be met where that information is initially in electronic form.
Section 27 sets out some additional requirements where the information that must be retained is contained in an electronic communication.
Sections 25-27 are based on Section 12 of the Australian Electronic Transactions Act 1999, and Articles 8 and 10 of the Model Law on Electronic Commerce.
Section 25 - Legal Requirement to Retain Document or Information That Is in Paper or Other Non-Electronic Form
Section 25 addresses legal requirements to retain information that is initially in paper or some other non-electronic form. Such requirements can be met by retaining an electronic form of the information instead of the paper/non-electronic form if two requirements are met:
- the electronic form must provide a reliable means of assuring the maintenance of the integrity of the information (see Section 17); and
- the information must be readily accessible so as to be usable for subsequent reference.
Section 25(3) makes it clear that where information is retained in electronic form in a manner that complies with Section 25(1), the paper or other non-electronic form need not also be retained. This ensures that, where the requirements of Section 25 are met, significant cost savings can be achieved by storing records in electronic form, and disposing of the hard copy versions.
Disposal of hard-copy records can however raise significant archival issues. To ensure that the policy objectives of the Archives Act 1957 are not compromised by transferring public sector records from paper to electronic form, Section 25(2) provides that public records within the meaning of that Act can be stored electronically, instead of retaining the originals, only if the Chief Archivist has approved the retention of that information in electronic form. It is anticipated that general guidelines will be issued by the Chief Archivist to Government Departments, as well as consent being sought in specific cases that fall outside the guidelines in place for the time being.
Section 25 is the one section of the ETA where the ultimate recipient of information will not necessarily have consented to the use of electronic means in place of paper-based means, at least so far as storage of that information is concerned. The consent requirement arises only at the time where the information must be provided or produced, or when access to it must be provided. In most cases this is not expected to cause any difficulty.
Where there is a real risk that the person/entity for whose benefit information must be retained (usually a regulator) will be prejudiced if the information is retained in electronic form, even if the core requirements in Section 25 are met, Section 35 permits additional requirements to be specified in regulations.
Where it is simply impossible for information to be retained using electronic means in a way which meets the policy objectives of the legislation imposing the retention obligation if electronic means are used, those requirements should be excluded from the ETA under Section 14. No such requirements have been identified to date.
Section 26 - Legal Requirement to Retain Information That Is in Electronic Form
There is at present some uncertainty about what must be done to comply with legislation that requires information to be retained, where that information is initially in electronic form. In particular, there is uncertainty about:
- whether the form of the information can be altered (e.g. where data is migrated from one system to another); and
- the extent of obligations to retain a facility to access data which must be retained by law, where for example it was created using a computer system or data storage technology that is no longer used by the person subject to the retention obligation.
Section 26 is intended to remove some of this uncertainty, by specifying that information in electronic form can be retained for the purposes of a legal requirement by retaining it:
- in paper or other non-electronic form, if that form provides a reliable means of assuring the maintenance of the integrity of the information (Thus, for example, if a particular computer system is being disposed of, data stored on it can be printed out and kept in paper form provided that this provides a reliable means of assuring the maintenance of the integrity of the information that must, by law, be retained.): or
- in electronic form, if that form provides a reliable means of assuring the maintenance of the integrity of the information, and the information is readily accessible so as to be usable for subsequent reference. (Information would not be readily accessible so as to be usable for subsequent reference if there was no readily available means of accessing the data, either using equipment held by the person with the obligation to retain the information, or using equipment that could reasonably promptly and easily be obtained from a third party.)
Where the information that must be retained is information contained in an electronic communication, additional conditions are specified in Section 27.
Section 27 - Extra Conditions for Electronic Communications
Section 27 applies where there is a legal requirement to retain information that is contained in an electronic communication. The person required to retain that information must also retain, in a form which is readily accessible so as to be usable for subsequent reference, information in relation to the communication which that person has obtained (they may not in all cases have this information) which enables the identification of:
- the origin of the electronic communication;
- the destination of the electronic communication; and
- the time when the electronic communication was sent and the time when it was received.
Section 27 ensures that legal requirements to retain information in an electronic communication can only be met where available information in relation to the origin, destination, and time of the communication is retained in an accessible form.
Provision and Production of, and Access to, Information
Legal requirements to retain information are usually coupled with legal obligations to provide or produce that information to some other person, either periodically or on request, and/or requirements to permit some third party to have access to that information.
Sections 28 to 31 are intended to ensure that where information has been retained electronically in accordance with the ETA, obligations to provide or produce that information, or permit access to it, can also be met in an appropriate way. They also remove some uncertainty surrounding how obligations to provide or produce information in an electronic form can be met at present, and what it means to provide access to information stored in electronic form.
Sections 28 to 31 are based on section 11 of the Australian Electronic Transactions Act 1999.
Section 28 - Legal Requirement to Provide or Produce Information That Is in Paper or Other Non-Electronic Form
Section 28 is concerned with the situation where a person holds information in paper or other non-electronic form, and is legally required to provide or produce that information. Section 28 permits that information to be provided or produced in electronic form, whether by means of an electronic communication (e.g. by email) or otherwise (e.g. on a disk) if three conditions are met:
- the form and means of providing/producing the information must reliably assure the maintenance of the integrity of the information, given the purpose for which, and the circumstances in which, the information is required to be provided or produced; and
- the information must be readily accessible so as to be usable for subsequent reference; and
- the person to whom the information must be provided/produced must have consented to the information being provided or produced in electronic form, and if applicable, by means of an electronic communication.
Some statutes impose an obligation to provide or produce an original document. Because "information" is defined in Section 5 to include information in its original form, obligations to provide or produce an original can be met using electronic means under Section 28, if the three requirements of Section 28 are satisfied.
Section 29 - Legal Requirement to Provide or Produce Information That Is in Electronic Form
Section 29 specifies how a legal requirement to provide or produce information can be met where that information is in electronic form in the hands of the person under the legal obligation. (It may be in electronic form either because it was initially in electronic form, or because it was in paper form but has been translated into electronic form in accordance with Section 25.)
Section 29 sets out two options for providing/producing information that is in electronic form - it can be provided in electronic form (paragraph (b)) or in paper or other non-electronic form (paragraph (a)).
One option, where a person has information in electronic form, is to provide or produce it in paper or other non-electronic form. This can be done without the consent of the recipient.
However, where information in electronic form is provided in paper or other non-electronic form, there is a risk that the integrity of the information may not be able to be assured. Some types of data cannot adequately be printed out on paper, in a way that captures all the stored information. Where the maintenance of the integrity of information cannot be assured if it is provided in non-electronic form, the person required to provide or produce it must notify the recipient of this fact, and if requested to do so, must provide the information in electronic form in accordance with Section 29(b).
Information held in electronic form can be provided or produced in electronic form, whether by means of an electronic communication or otherwise, if three requirements are met:
- the form and means of providing or producing the information must reliably assure the maintenance of the integrity of the information, given the purpose for which, and the circumstances in which, the information is required to be provided or produced; and
- the information must be readily accessible so as to be usable for subsequent reference; and
- the person to whom the information is required to be provided/produced must consent to the provision/production of the information in an electronic form and, if applicable, by means of an electronic communication.
Section 30 - Legal Requirement to Provide Access to Information That Is in Paper or Other Non-Electronic Form
Section 30 ensures that where information is held in paper or other non-electronic form, and there is a legal requirement to provide access to it, access can be provided in electronic form if:
- the recipient consents to being given access in this way; and
- the form and means of access reliably ensures the maintenance of the integrity of the information, given the purpose for which, and the circumstances in which, access to the information is required to be provided.
Section 30 is concerned with, for example, statutory obligations to permit an inspector to have access to certain records, e.g. records of fish caught, or stocks of certain items held pursuant to a statutory licence.
Section 31 - Legal Requirement to Provide Access to Information That Is in Electronic Form
Section 31 deals with obligations to provide access to information that is held in electronic form.
Section 31 parallels Section 29 in relation to obligations to provide or produce information in electronic form. It permits use of paper or other non-electronic forms to provide access - e.g. by providing a printout of electronically stored data - subject to an obligation to advise the person obtaining access if the maintenance of the integrity of the information cannot be assured.
Alternatively, access can be provided in electronic form - for example, by permitting the person to query an electronic database using a terminal - if the person to whom access must be given agrees to access the information in this way, and if the form and means of access to the information reliably assures the maintenance of its integrity, given the purpose for which, and the circumstances in which, access must be provided.
Originals
Section 32 - Originals
A small number of statutes require copies of documents to be compared with an original - for example, for the purpose of preparing a certified copy of the original document.
If the original document has been stored electronically in accordance with Section 25 (and the original hard-copy document has been destroyed), difficulties might arise in carrying out this comparison.
To avoid any uncertainty about whether such provisions still apply, Section 32 makes it clear that where there is a legal requirement to compare a document with an original, that requirement can be satisfied by comparing the document with an electronic form of the original if the original form reliably assures the maintenance of the integrity of the document.
Subpart 3 - Miscellaneous
Section 33 - Legal Requirement Relating to Content of Information
Section 33 makes it clear that nothing in Part 3 of the ETA affects any legal requirement that relates to the content of information. The ETA permits the same information to be provided in electronic form - it does not permit any information that must be retained or provided etc. to be omitted or altered, where electronic technology is used.
Section 34 - Copyright
The records that a business is required to retain or produce under New Zealand law may, in some cases, be the subject of copyright held by some other person. (One example might be a form provided by a third party, or other information generated by a third party.)
Section 34 provides that copyright in any work is not infringed where an electronic form of a document is generated, or information is produced by means of an electronic communication, if this is done for the purposes of meeting a legal requirement by electronic means. Very importantly, the scope of the protection conferred is limited to that necessary to enable electronic technology to be used to meet some legal requirement.
This provision is modelled on Section 11(6) and Section 12(6) of the Australian Electronic Transactions Act 1999.
Section 34A - Review of Enactments and Provisions Excluded from Part 3
Section 34A requires that within two years after the commencement of the ETA the Ministry of Economic Development must report to the Minister regarding the exclusions in the Schedule. The Ministry must report whether those enactments and provisions should continue to be excluded from Part 3 and if so whether any regulations are necessary under section 35.
Section 35 - Regulations
Section 35 permits regulations to be made which prescribe conditions that must be complied with - for example conditions in relation to the technology to be used, or particular formats that must be used - if legal requirements in legislation identified in those regulations are to be met using electronic means.
The need for this provision was touched on in the discussion of Section 14 above. There may well be situations where the policy goals of other legislation require a higher, or more prescriptive, standard to be met in relation to use of electronic technology. For example, where particular records are required to be retained for forensic purposes, it may be appropriate to keep them in electronic form only if the electronic form is an image file of the paper document, rather than simply being an electronic transcription of the content of the paper document.
Section 35 specifies purposes for which regulations can be made, e.g. such issues as time of receipt.
Section 35A makes it clear that a person who is authorised to prescribe paper-based forms also has the power to prescribe electronic forms.
Section 36 - Related Amendment to Interpretation Act 1999
Section 29 of the Interpretation Act 1999 currently defines "writing" to include "representing or reproducing words, figures, or symbols -
- in a visible and tangible form by any means and in any medium;
- in a visible form in any medium by electronic means that enables them to be stored in permanent form and be retrieved and read".
On the face of this definition, any statutory requirement to provide information in writing, or to retain information in writing, could be met by electronic means if the requirement in paragraph (b) is satisfied. However, section 4 of the Interpretation Act 1999 provides that the definition in section 29 will not apply if an enactment provides otherwise, or the context of the enactment requires a different interpretation.
Leaving section 29 unchanged would be unsatisfactory for two reasons:
- It is likely that in many cases the courts would conclude that the context of a particular writing requirement precluded the use of electronic means. The application of paragraph (b) is thus very uncertain. If the issue of when electronic means can be used as a substitute for writing has been expressly addressed in ETA, it is undesirable to have a different (and uncertain) provision permitting use of electronic means in another Act.
- Where paragraph (b) does apply to permit the use of electronic means to satisfy a requirement to provide information in writing, there is no consent requirement, as under the Act. Thus it is possible that section 29 would permit the use of electronic means of communication without the recipient's consent. This is inconsistent with the policy reflected in the ETA.
To avoid overlapping but different provisions for use of electronic means as a substitute for "writing" requirements, and to ensure that the consent requirement in the ETA is not circumvented, Section 36 modifies the definition of writing in section 29 of the Interpretation Act, and limits it to writing in a visible and tangible form and medium. Thus it is only by virtue of the ETA that electronic means can be used to satisfy a statutory writing requirement - and the safeguards in the ETA thus apply to the use of electronic means.
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