Consultation to inform options for implementing the Model Law on Electronic Transferable Records in Australia

Closes 28 Oct 2024

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Australian law applying to transferable records (Questions 11–19)

We are interested in considering the Australian laws which apply to stakeholders’ use of transferable records.

Please refer to Part 3.1 of the Consultation Paper, which informs Questions 11–12.

This is because the key provisions under the MLETR apply to requirements under law to ‘possess’ and ‘transfer’ transferable records. In Australia, different transferable records are regulated by different legal frameworks – including under legislation and contract. These legal frameworks do not necessarily require government oversight.

We are therefore asking for help to identify Australian laws which relate to the ‘possession’ or ‘transfer’ of transferable records, and for preliminary considerations about how an Australian MLETR option could interact with these requirements.

This will help us build an understanding of how MLETR could operate support these existing laws, and any overlaps we should consider.

Transferable records as property, including under the PPSA (Question 13)

We are interested in views from stakeholders about how Australian law could confirm that electronic transferable records are an identifiable form of possessable property – especially from stakeholders with experience in the Personal Properties Securities Act 2009 (Cth) (PPSA) or property law.

Please refer to Part 3.2 of the Consultation Paper, which informs Question 13.

Evidence, substantive and content requirements for transferable records (Question 14)

We would also like to distinguish between requirements to ‘possess’ or ‘transfer’ paper transferable records, and other requirements which may not engage the MLETR’s key provisions. 

For example, Australian law may contain ‘evidence’ or ‘regulatory’ requirements, such as a requirement to provide a copy of a transferable record to another entity or regulator. In some cases, these requirements may already be achievable electronically under existing law, like under the Electronic Transactions Act 1999 (Cth) (ETA).

Australian law may also already contain ‘substantive’ or ‘content’ requirements relating to transferable records, for example, to issue a transferable record in certain events, or to include specific information on a record. The MLETR would not change these requirements – it would only confirm that these may be met electronically, as well as in paper form. 

We would like to undertake an inventory of these kinds of requirements under Australian law, to help us identify whether there are any additional legal barriers.

Please refer to Parts 3.3 and 3.4 of the Consultation Paper, which informs Question 14. 

Existing Australian laws relating to electronic transactions (Question 15)

We are interested in reflections about how the ETA may apply to transferable records.

The ETA and its state and territory counterparts (Uniform Australian ETAs) confirm the legal equality of various paper and electronic processes under Australian law (like signatures, notices and production of paper documents) but do not currently confirm the legal equality of electronic ‘possession’ or ‘transfer’ of unique paper records.

Please refer to Part 3.5 of the Consultation Paper, which informs Question 15.

Existing Australian laws applying to electronic bills of lading (Questions 16–19)

We are also interested in preliminary views on how an MLETR framework could interact with existing Australian ‘electronic bill of lading’ (eBOL) laws.

For example, the Sea-Carriage Documents Acts (SCDAs) and the Carriage of Goods by Sea Act 1991 (Cth) (COGSA) confirm that eBOLs, which are given legal effect by contract, are legally valid for the purposes of both of these Acts.

Please refer to Part 3.5 of the Consultation Paper, which informs Questions 16–19.

11. Can you identify any Australian laws – whether in legislation, the terms of a contract, or common law – which concern or require the possession or transfer or use of a paper transferable record?

Please provide examples, references or extracts from contracts if possible. If necessary, you may upload documents on the “Final questions and document upload” page (via the Contents page).

12. If the MLETR were implemented, what issues (if any) do you anticipate in its application to any of the laws referenced under Part 3.1 of the Consultation Paper (including any laws identified by yourself in Question 11)?
13. Please describe any views, suggestions or issues which the department should consider, to ensure that electronic transferable records are an identifiable form of possessable property under Australian law, including under the PPSA.

If possible, please also elaborate on the extent to which you consider the MLETR would provide sufficient confirmation of the property status of electronic transferable records.

14. What other evidence or regulatory requirements relating to transferable records are you aware of, under Australian law?
15. We would welcome any preliminary comments from stakeholders regarding the applicability of the Uniform Australian ETAs towards electronic transferable records.

For example, we would be interested in views about the consequences of any potential overlap or inconsistency between the MLETR and the ETA.

16. Have you (or your business) used, or do you currently use, electronic bills of lading through existing private contractual frameworks?

If you have, please describe what system you used, for what specific purposes, and what parties are typically parties to the underlying contract.

(Please select one)

17. What comparative advantages or disadvantages can you identify in the approach to legal validity between the MLETR, and the approach enabled under the SCDAs and the COGSA?

More information

Please refer to Part 4 of the Consultation Paper for a discussion of the approach to functional equivalence under the MLETR.

18. How should an Australian option for implementing MLETR-aligned legislation interact with existing, contractually-enabled eBOLs?
19. How do you assess the effectiveness of contractual frameworks to confirm the legal validity of electronic transferable records?

Please expand on your answer. For example, what benefits, barriers or risks do you identify, or have you experienced, with these frameworks?

(Please select one)