Timetable problem for new e-transactions law

By RICHARD BRADDELL

WELLINGTON - A new evidence code, regarded by the Law Commission as essential to proposed legislation governing electronic transactions, may not be in force in time, says a Ministry of Economic Development discussion document on the legislation.

The evidence code, which would replace most existing common law and statutory evidence provisions, is expected to greatly simplify the requirements for proof in electronic transactions.

The commission envisaged that the evidence code would be in force by the time the Electronic Transactions Bill was passed, but the discussion document says it has not even made it on to this year's legislative programme.

That being the case, the ministry offers three solutions:

Bring the evidence code up the legislative agenda so it can be enacted by Parliament at the same time as the Electronic Transactions Bill.

Ignore evidence matters until the code is finally enacted.

Include interim provisions to address the most significant issues.

The discussion document, which calls for submissions on electronic transactions legislation by July 14, advances efforts to grapple with the rapidly growing use of electronic methods of conducting transactions with the Government and in commerce.

It draws on the work of the commission and on a model law for electronic commerce put up by the United Nations Commission for International Trade Law.

The discussion document proposals follows the path of countries such as Australia and Singapore, which have already passed electronic transactions laws.

The overarching principle of the proposals is that all existing statutory obligations will be covered and modified by electronic transactions legislation unless specifically excluded.

Exclusions contemplated include wills, affidavits, statutory declarations and negotiable instruments.

The discussion document excludes wills because of the extreme need for assurance of their integrity, particularly since they may have effect a very long time after their creation.

Negotiable instruments such as cheques and bills of lading are excluded because the law assumes them to be unique.

Provisions to protect people subject to a disadvantage or with inadequate information or bargaining power are also being contemplated.

The discussion document says items such as birth certificates could be produced in electronic form.

It queries whether New Zealand should follow other countries that have extended exclusions to cover dealings in land and documents of title and documents for immigration and citizenship purposes.

The philosophy behind the bill is that no transaction should be denied legal effect simply because it took place electronically.

"The bill will not force anyone, citizens, businesses or Government entities, to use electronic technology in place of paper," says the discussion document.

"All recipients of statutory communications will retain control of whether or not to accept those communications in electronic form, and of the formats in which they accept electronic equivalents to writing, signatures, et cetera."