Australian Government: Attorney-General's Department
Australian Government: Attorney-General's DepartmentAchieving a Just and Secure Society

International instruments

UN Convention on Use of Electronic Communications in International Contracts - Proposed amendments to the Electronic Transactions Acts

The Australian Government is currently considering accession to the United Nations Convention on the Use of Electronic Communications in International Contracts, which was adopted by the United Nations General Assembly in 2005.

The Digital Economy Section of the Copyright Law Branch at the Attorney-General's Department advises the Australian Government on this matter.

The Convention aims to facilitate international trade by offering practical solutions for issues in connection with the formation or performance of contracts between parties located in different countries. It contains some refinements in approach since the Model Law on  Electronic Commerce – the inspiration for Australia’s uniform electronic transactions regime – was finalised in 1996.

If the Government were to accede to the Convention, the Electronic Transactions Acts of the Commonwealth, States and Territories would require some amendments. The most substantial of these amendments is likely to be with regard to the Convention’s clarification of traditional rules on contract formation:

  • the use of electronic communications to make invitations to treat (Art 11)
  • recognising use of automated message systems for contract formation (Art 12), and
  • a right of withdrawal where a person makes an input error in an electronic communication exchanged with an automated message system (Art 14).

E-Commerce in Australia’s Free Trade Agreements (FTAs)

The Australian Government supports the inclusion of e-commerce commitments in its FTAs. FTAs have been concluded with the United States, Singapore, Thailand and Chile. This recognises the economic growth and opportunities provided by electronic commerce, and the importance of avoiding unnecessary barriers to its use and development.

In its FTAs, Australia seeks e-commerce regulatory measures that support a light-handed approach focusing on facilitation of electronic communications in transactions, rather than a direct regulation of e-commerce. This is consistent with the Government’s approach to e-commerce which has been to allow industry and consumers to lead in its development, only intervening where necessary to ensure broad public policy objectives like consumer protection and security.

The Australia-Singapore FTA signed in July 2003 provides an example of such e commerce provisions:

CHAPTER 14, ARTICLE 4 - Domestic Regulatory Frameworks

  1. Each Party shall maintain domestic legal frameworks governing electronic transactions based on the UNCITRAL Model Law on Electronic Commerce.
  2. Each Party shall:
    1. minimise the regulatory burden on electronic commerce; and
    2. ensure that regulatory frameworks support industry-led development of electronic commerce.

ARTICLE 5 - Electronic Authentication and Electronic Signatures

  1. Each Party shall maintain domestic legislation for electronic authentication that:
    1. permits parties to an electronic transaction to determine the appropriate authentication technologies and implementation models for their electronic transaction, without limiting the recognition of technologies and implementation models; and
    2. permits parties to an electronic transaction to have the opportunity to prove in court that their electronic transaction complies with any legal requirements. ……