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Copyright © Baldwins
1998-2006

Data Protection and Electronic Commerce Legislation proposed in Victoria

July 1998 (revised May 1999)

The Victorian Government has released exposure drafts of the Data Protection Bill and Electronic Commerce Framework Bill for public comment on 1 December 1998. If enacted into law, these draft bills will be the first Australian laws to protect information and control business on the Internet.

The Data Protection Bill provides a legislative basis for data protection covering private and public sectors in Victoria. The Minister for Multimedia, Mr Alan Stockdale, stated that the legislation would establish the legal principle that "personal information should only be used for the purpose for which its collection was authorised".

The Victorian data protection legislation will establish a standard of protection that exceeds the standards of the Federal Privacy Act.

In this regard, it is interesting to note that the Commonwealth Joint Committee of Public Accounts and Audit recommended on 24 June 1998 that the Federal Government "introduce [national] privacy legislation…to govern the use of personal information in the private sector" (John Davidson, ‘Inquiry urges internet privacy law’, Australian Financial Review, 25 June 1998). However, the Federal Government has rejected this proposal, and so the requirements of the Commonwealth Privacy Act only bind public agencies.

At the same time, Victorian Government has made it clear that it supports a national privacy regime, and that "should the Commonwealth's position on this issue change ... Victoria will vacate the field to the extent of the Commonwealth's powers". Victoria has offered its expertise and experience to assist the Commonwealth in developing such legislation.

The proposed Victorian legislation could provide a model for other Australian jurisdictions in order to meet European Union legal requirements. Under EU law, any country receiving data about European citizens must have privacy laws to protect that data.

However, there are certain exemptions in the proposed laws which may reduce its effect.

The Electronic Commerce Framework Bill addresses the issue of electronic signature recognition. While the prospect of conducting transactions over the Internet has enormous potential for businesses in terms of savings and profits, the Victorian Government has recognised a number of risks associated with e-commerce. The issues include "identifying parties and the ability of parties to deny transactions", which could result in "multiple or large-scale consumer fraud". At the same time, technology itself offers the capability to protect parties to electronic transactions, through the use of authentication, encryption and electronic signatures. What is needed is legal recognition of these methods of protection, and that is one of the purposes of the Bill.

Broadly, the Bill provides that:

However, parties may, by an agreement, restrict the operation of these provisions. In addition, the Bill provides several exceptions, where electronic signature, writing and delivery are unacceptable -- including wills, trusts, powers of attorney, affidavits and interests in real property. Another effect of the Bill is to create the offences of unlawful access to data in a computer, and damaging data in a computer. These provisions are, in part, designed to protect personal information acquired in the course of electronic transactions. They complement the provisions of the Data Protection Bill.

Public submissions on both Bills closed on 12 February 1999. The Bills are now being prepared for introduction to Parliament.

For further information, contact Joe Lederman at BALDWINS, Australian Lawyers & Consultants.

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