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Last updated: 13 October 2000
Circular No 2000/3 : Electronic Transactions Act 1999
Please note: This document is no longer current and is provided for reference purposes only.
The purpose of this circular is to provide an update on the implication of the Electronic Transactions Act 1999 (ET Act) for communication arising as a consequence of the Public Service Act 1999 (PS Act).
Background
2. The ET Act came into effect on 15 March 2000. The ET Act provides the legal basis for agencies to comply with the commitments set out in the Prime Minister's 'Investing in Growth' statement. In that context, the Prime Minister committed the Government to delivering all appropriate Government services online by 2001.
3. One important feature of the ET Act is its phased implementation. Between the commencement of the ET Act and 1 July 2001, the ET Act will apply to Commonwealth laws identified in the Regulations ('opting in' phase). After 1 July 2001, the Act will apply to all Commonwealth laws unless specifically exempted by regulation ('opting out' phase).
4. In February 2000, the Public Service and Merit Protection Commission (PSMPC) surveyed agencies that employ staff under the PS Act to identify any concerns about the ET Act applying to communications arising as a consequence of the PS Act prior to 1 July 2001. More than seventy per cent of responding agencies had concerns about whether they would be sufficiently ready to comply with the ET Act in the short-term.
5. The Minister Assisting the Prime Minister for the Public Service has written to the Attorney-General advising him of our consultations with agencies and suggesting that it is not feasible to 'opt in' the PS Act as a Commonwealth law for the purposes of the ET Act during the phase-in period.
6. We do not, at this stage, anticipate taking steps to seek to exempt the PS Act from the application of the ET Act from 1 July 2001.
Issues
7. Agencies are encouraged to continue to take the necessary steps to become compliant with the ET Act for the purposes of the PS Act by 1 July 2001.
8. One of the issues that has emerged during our consultation with agencies is the obligation on agencies to transact electronically with their APS employees as distinct from members of the public.
9. An APS employee communicating with their agency in relation to their personal entitlements, as distinct from their professional duties, is not a Commonwealth entity and is therefore entitled to transact electronically with the Commonwealth with regards to the provisions of the PS Act from 1 July 2001.
- An APS employee seeking a review of action under the PS Act, can transact with the Commonwealth (eg lodge a review of action) electronically. Under the ET Act, the Commonwealth is required to receive an electronic communication from an APS employee just as it is required to receive an electronic communication from a member of the public who chooses to transact electronically.
- An Agency Head may at any time, by notice in writing, terminate the employment of an APS employee in the Agency. Under the ET Act, the Agency Head can do this either in an electronic or written form. In this situation the ET Act is permissive. The requirement imposed on the Agency Head to give a notice in writing does not have to be met electronically, but it may be done electronically if the recipient consents to receiving the information in an electronic format.
10. An APS employee performing their professional duties is required to receive an electronic communication where a member of the public, or an APS employee communicating in relation to their personal entitlements, chooses to transact in this way. An APS employee communicating in relation to their professional duties (such as while exercising a delegation that must be in writing) is entitled to transact electronically where the recipient of the transaction consents to transacting electronically. It is important to note that consent may be conditional. A member of the public may consent to receiving an electronic communication from an APS Agency subject to the compatibility of their IT equipment or some other requirements.
11. As the Commonwealth is excluded from the operation of the consent provisions, they (APS employees performing their professional duties) are required to accept electronic communications. The Commonwealth is, however, given certain specific powers. The ability to satisfy a legal requirement electronically is conditional upon a person complying with any particular information technology requirements for communication with the particular Agency. This may include specifications to meet security requirements, and any action a person must take to verify receipt of information.
12. The attached chart may be of assistance in helping agencies to understand the implications of the ET Act. These are illustrative and include communication arising from Acts other than the PS Act.
Further advice
13. Enquiries from Comnet members and their senior staff relating to the implication of the ET Act on communciations arising from the operation of the PS Act can be directed to the PSMPC's Helpline, telephone (02) 6202 3859.
14. The ET Act, the Regulations and other general information on electronic transactions are available on the Attorney-General's Department website located at http://law.gov.au/ecommerce.
Jeff Lamond
Team Leader
Staffing, Structures and Performance Team
12 October 2000
| Sender | Recipient | Circumstances* | Sender requirements | Recipient requirements |
|---|---|---|---|---|
| Commonwealth (APS Employee exercising their professional responsibilities) | Member of the Public | . Letter informing them of entitlements (eg Centrelink) . Invitation to tender |
Can only transact electronically if the recipient consents (NB. Consent can be inferred from the conduct of the recipient) otherwise the transaction must be in writing. | May choose to transact electronically by giving consent (specific or inferred from conduct) |
| Commonwealth (APS Employee exercising their professional responsibilities) | Member of the Public (APS Employee in a personal capacity) | . Notification of termination | Can only transact electronically if the recipient consents (NB. Consent can be inferred from the conduct of the recipient) otherwise the transaction must be in writing. | May choose to transact electronically by giving consent (specific or inferred from conduct) |
| Member of the Public | Commonwealth (APS Employee exercising professional responsibilities) | . FOI Request . Application for entitlements (eg. to Centrelink) . Where the ET Act applies to the relevant legislation |
Must comply with any IT requirements (eg. Electronic signature methods) specified by the Commonwealth entity. | Must accept / receive an electronic communication where the sender complies with any IT requirements set by the Commonwealth entity. |
| Member of the Public (APS Employee in their personal capacity) | Commonwealth (APS Employee exercising professional responsibilities) | . Application for a review of action . Where the ET Act applies to the relevant legislation |
Must comply with any IT requirements specified by the Commonwealth entity. | Must accept / receive an electronic communication where the sender complies with any IT requirements set by the Commonwealth entity. |
* This is not an exhaustive list of possible circumstances and is provided for illustrative purposes only.
