The Commonwealth Electronic Transactions Bill 1999: ailments and antidotes

The Ailment

Ecommerce is rapidly redefining the way in which business is conducted. Ecommerce highlights the difficulties associated with laws that do not have universal application.

The Commonwealth appears to be of the view that the Constitution does not confer on it the legislative power to make universal laws in the form set out in the Bill.3 In what appears to be a corollary of this belief, the Commonwealth has limited the application of the proposed legislation.4

The Commonwealth's preferred course appears to be the establishment of a national scheme in cooperation with the State and Territory Governments.5 The Commonwealth expects that the Bill will provide a blueprint upon which the State and Territory governments will base similar legislation.6 The author believes that this approach unnecessarily creates an environment that could harm or inhibit the development of electronic commerce. While it is clear that the State or Territory governments may challenge the introduction of comprehensive legislation, this is true of many Commonwealth enactments and does not appear to be an appropriate response to the challenges posed by electronic commerce ("ecommerce").

The Commonwealth's stated intention to involve the State and Territory governments in the introduction of electronic transaction legislation could promote both uncertainty and inefficiency. Prog...

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