South Australia
Electronic Transactions (Miscellaneous) Amendment Bill 2011
A Bill For
An Act to amend the Electronic Transactions Act 2000.

Contents
Part 1—Preliminary
1	Short title
2	Commencement
3	Amendment provisions
Part 2—Amendment of Electronic Transactions Act 2000
4	Amendment of section 4—Simplified outline
5	Amendment of section 5—Interpretation
6	Insertion of section 6A
6A	Exemptions
7	Amendment of section 7—Validity of electronic transactions
8	Amendment of section 9—Signatures
9	Repeal of section 12
10	Substitution of section 13
13	Time of dispatch
13A	Time of receipt
13B	Place of dispatch and place of receipt
11	Amendment of section 14—Attribution of electronic communications
12	Insertion of Part 2A
Part 2A—Additional provisions applying to contracts involving electronic communications
14A	Application and operation of Part
14B	Invitation to treat regarding contracts
14C	Use of automated message systems for contract formation—non‑intervention of natural person
14D	Error in electronic communications regarding contracts
14E	Application of Act in relation to contracts

The Parliament of South Australia enacts as follows:
Part 1—Preliminary
1—Short title
This Act may be cited as the Electronic Transactions (Miscellaneous) Amendment Act 2011.
2—Commencement
This Act will come into operation on a day to be fixed by proclamation.
3—Amendment provisions
In this Act, a provision under a heading referring to the amendment of a specified Act amends the Act so specified.

Part 2—Amendment of Electronic Transactions Act 2000
4—Amendment of section 4—Simplified outline
Section 4—after its present contents (now to be designated as subsection (1)) insert:
	(2)	Part 2A contains provisions applying to contracts involving electronic communications, including provisions (relating to the internet in particular) for the following:
	(a)	an unaddressed proposal to form a contract is to be regarded as an invitation to make offers, rather than as an offer that if accepted would result in a contract;
	(b)	a contract formed automatically is not invalid, void or unenforceable because there was no human review or intervention;
	(c)	a portion of an electronic communication containing an input error can be withdrawn in certain circumstances;
	(d)	the application of certain provisions of Part 2 to the extent they do not apply of their own force.
5—Amendment of section 5—Interpretation
	(1)	Section 5(1)—before the definition of consent insert:
addressee of an electronic communication means a person who is intended by the originator to receive the electronic communication, but does not include a person acting as an intermediary with respect to the electronic communication;
automated message system means a computer program or an electronic or other automated means used to initiate an action or respond to data messages in whole or in part, without review or intervention by a natural person each time an action is initiated or a response is generated by the system;
	(2)	Section 5(1), definition of place of business—delete the definition and substitute:
originator of an electronic communication means a person by whom, or on whose behalf, the electronic communication has been sent or generated before storage, if any, but does not include a person acting as an intermediary with respect to the electronic communication;
performance of a contract includes non‑performance of the contract;
place of business means—
	(a)	in relation to a person, other than an entity referred to in paragraph (b)—a place where the person maintains a non‑transitory establishment to pursue an economic activity other than the temporary provision of goods or services out of a specific location; or
	(b)	in relation to a government, an authority of a government or a non‑profit body—a place where any operations or activities are carried out by that government, authority or body;
	(3)	Section 5(1), definition of transaction—delete the definition and substitute: 
transaction includes—
	(a)	any transaction in the nature of a contract, agreement or other arrangement; and
	(b)	any statement, declaration, demand, notice or request, including an offer and the acceptance of an offer, that the parties are required to make or choose to make in connection with the formation or performance of a contract, agreement or other arrangement; and
	(c)	any transaction of a non‑commercial nature.
6—Insertion of section 6A
After section 6 insert:
6A—Exemptions
	(1)	The regulations may provide that all or specified provisions of this Act do not apply—
	(a)	to transactions, requirements, permissions, electronic communications or other matters specified, or of classes specified, in the regulations for the purposes of this section; or
	(b)	in circumstances specified, or of classes specified, in the regulations for the purposes of this section.
	(2)	The regulations may provide that all or specified provisions of this Act do not apply to specified laws of this jurisdiction.
7—Amendment of section 7—Validity of electronic transactions
Section 7(3) and (4)—delete subsections (3) and (4)
8—Amendment of section 9—Signatures
	(1)	Section 9(1)(a)—delete "approval of" and substitute:
intention in respect of
	(2)	Section 9(1)(b)—delete paragraph (b) and substitute:
	(b)	the method used was either—
	(i)	as reliable as appropriate for the purpose for which the electronic communication was generated or communicated, in the light of all the circumstances, including any relevant agreement; or
	(ii)	proven in fact to have fulfilled the functions described in paragraph (a), by itself or together with further evidence; and
	(3)	Section 9(2)(c)—delete "approval of" and substitute:
intention in respect of
	(4)	Section 9—after subsection (2) insert:
	(3)	The reference in subsection (1) to a law that requires a signature includes a reference to a law that provides consequences for the absence of a signature.
9—Repeal of section 12
Section 12—delete the section
10—Substitution of section 13
Section 13—delete the section and substitute:
13—Time of dispatch
	(1)	For the purposes of a law of this jurisdiction, unless otherwise agreed between the originator and the addressee of an electronic communication, the time of dispatch of the electronic communication is—
	(a)	the time when the electronic communication leaves an information system under the control of the originator or of the party who sent it on behalf of the originator; or
	(b)	if the electronic communication has not left an information system under the control of the originator or of the party who sent it on behalf of the originator—the time when the electronic communication is received by the addressee.
Note—
Paragraph (b) would apply to a case where the parties exchange electronic communications through the same information system.
	(2)	Subsection (1) applies even though the place where the information system supporting an electronic address is located may be different from the place where the electronic communication is taken to have been dispatched under section 13B.
13A—Time of receipt
	(1)	For the purposes of a law of this jurisdiction, unless otherwise agreed between the originator and the addressee of an electronic communication—
	(a)	the time of receipt of the electronic communication is the time when the electronic communication becomes capable of being retrieved by the addressee at an electronic address designated by the addressee; or
	(b)	the time of receipt of the electronic communication at another electronic address of the addressee is the time when both—
	(i)	the electronic communication has become capable of being retrieved by the addressee at that address; and
	(ii)	the addressee has become aware that the electronic communication has been sent to that address.
	(2)	For the purposes of subsection (1), unless otherwise agreed between the originator and the addressee of the electronic communication, it is to be assumed that the electronic communication is capable of being retrieved by the addressee when it reaches the addressee's electronic address.
	(3)	Subsection (1) applies even though the place where the information system supporting an electronic address is located may be different from the place where the electronic communication is taken to have been received under section 13B.
13B—Place of dispatch and place of receipt
	(1)	For the purposes of a law of this jurisdiction, unless otherwise agreed between the originator and the addressee of an electronic communication—
	(a)	the electronic communication is taken to have been dispatched at the place where the originator has its place of business; and
	(b)	the electronic communication is taken to have been received at the place where the addressee has its place of business.
	(2)	For the purposes of the application of subsection (1) to an electronic communication—
	(a)	a party's place of business is assumed to be the location indicated by that party, unless another party demonstrates that the party making the indication does not have a place of business at that location; and
	(b)	if a party has not indicated a place of business and has only 1 place of business, it is to be assumed that that place is the party's place of business; and
	(c)	if a party has not indicated a place of business and has more than 1 place of business, the place of business is that which has the closest relationship to the underlying transaction, having regard to the circumstances known to or contemplated by the parties at any time before or at the conclusion of the transaction; and
	(d)	if a party has not indicated a place of business and has more than 1 place of business, but paragraph (c) does not apply—it is to be assumed that the party's principal place of business is the party's only place of business; and
	(e)	if a party is a natural person and does not have a place of business—it is to be assumed that the party's place of business is the place of the party's habitual residence.
	(3)	A location is not a place of business merely because that is—
	(a)	where equipment and technology supporting an information system used by a party are located; or
	(b)	where the information system may be accessed by other parties.
	(4)	The sole fact that a party makes use of a domain name or electronic mail address connected to a specific country does not create a presumption that its place of business is located in that country.
11—Amendment of section 14—Attribution of electronic communications
Section 14(3) and (4)—delete subsections (3) and (4)
12—Insertion of Part 2A
After Part 2 insert:
Part 2A—Additional provisions applying to contracts involving electronic communications
14A—Application and operation of Part
This Part applies to the use of electronic communications in connection with the formation or performance of a contract between parties where the proper law of the contract is (or would on its formation be) the law of this jurisdiction, and so applies—
	(a)	whether some or all of the parties are located within Australia or elsewhere; and
	(b)	whether the contract is for business purposes, for personal, family or household purposes, or for other purposes.
14B—Invitation to treat regarding contracts
	(1)	A proposal to form a contract made through 1 or more electronic communications that—
	(a)	is not addressed to 1 or more specific parties; and
	(b)	is generally accessible to parties making use of information systems,
is to be considered as an invitation to make offers, unless it clearly indicates the intention of the party making the proposal to be bound in case of acceptance.
	(2)	Subsection (1) extends to proposals that make use of interactive applications for the placement of orders through information systems.
14C—Use of automated message systems for contract formation—non‑intervention of natural person
A contract formed by—
	(a)	the interaction of an automated message system and a natural person; or
	(b)	the interaction of automated message systems,
is not invalid, void or unenforceable on the sole ground that no natural person reviewed or intervened in each of the individual actions carried out by the automated message systems or the resulting contract.
14D—Error in electronic communications regarding contracts
	(1)	This section applies in relation to a statement, declaration, demand, notice or request, including an offer and the acceptance of an offer, that the parties are required to make or choose to make in connection with the formation or performance of a contract.
	(2)	If—
	(a)	a natural person makes an input error in an electronic communication exchanged with the automated message system of another party; and
	(b)	the automated message system does not provide the person with an opportunity to correct the error,
the person, or the party on whose behalf the person was acting, has the right to withdraw the portion of the electronic communication in which the input error was made if—
	(c)	the person, or the party on whose behalf the person was acting, notifies the other party of the error as soon as possible after having learned of the error and indicates that he or she made an error in the electronic communication; and
	(d)	the person, or the party on whose behalf the person was acting, has not used or received any material benefit or value from the goods or services, if any, received from the other party.
	(3)	The right of withdrawal of a portion of an electronic communication under this section is not of itself a right to rescind or otherwise terminate a contract.
	(4)	The consequences (if any) of the exercise of the right of withdrawal of a portion of an electronic communication under this section are to be determined in accordance with any applicable rule of law.
Note—
In some circumstances the withdrawal of a portion of an electronic communication may invalidate the entire communication or render it ineffective for the purposes of contract formation (see paragraph 241 of the UNCITRAL explanatory note for the United Nations Convention on the Use of Electronic Communications in International Contracts).
14E—Application of Act in relation to contracts
	(1)	Subject to subsection (2), the provisions of sections 7, 13, 13A and 13B apply to—
	(a)	a transaction constituted by or relating to a contract; or
	(b)	an electronic communication relating to the formation or performance of a contract,
in the same way as they apply to a transaction or electronic communication referred to in that Part, and so apply as if the words "For the purposes of a law of this jurisdiction" and "under a law of this jurisdiction" were omitted.
	(2)	However, this Part (including subsection (1)) does not apply to or in relation to a contract to the extent that—
	(a)	Part 2 would of its own force have the same effect as this Part if this Part applied; or
	(b)	a law of another State or Territory (that is in substantially the same terms as Part 2) would of its own force have the same effect as this Part if this Part applied.
Note—
This section applies provisions of Part 2 to contracts or proposed contracts to the extent (if any) that those provisions do not apply merely because they are expressed to apply in relation to "a law of this jurisdiction". This section also disapplies the provisions of Part 2A to the extent that Part 2 would apply of its own force. An example where Part 2 may not apply of its own force is where a contract is being negotiated in a State or Territory from a supplier located overseas.