Updated as at 25/10/2001.

1. When will an electronic record satisfy the record keeping requirements of a Commonwealth or State law?

A Commonwealth or State law may require:

* information to be recorded in writing;
* a written document to be kept; or
* an electronic communication to be kept.

An electronic record will satisfy the above requirements in relation to laws of the Commonwealth, New South Wales, Victoria and Western Australia provided certain conditions are met. See Electronic Transactions Act fact sheet for more information.

2. When electronic records must be kept

Electronic documents may need to be retained and securely archived in accordance with the following requirements where applicable:

(a) Proceeds of Crime Act 1987 (Cth)

Applies to documents created before and after the Act commenced.

Financial institutions must retain certain essential financial transaction documents for seven years after a transaction takes place or seven years after the date on which the account is closed. Documents should be stored in a manner that makes retrieval reasonably practicable.

(b) Financial Transaction Report Act 1988 (Cth)

Financial institutions must report transfers of money greater than $10,000, verify the identity of persons opening or becoming signatories to accounts and keep records for seven years after the relevant account is closed.

(c) Income Tax Assessment Act 1936 (Cth)

An entity subject to income tax must:(1)

* keep records;
* provide access to premises and reasonable facilities and assistance for the inspection of records; and
* provide information.

The obligations apply to a document or record in electronic form.(2) Records must be kept for five years and be readily accessible and convertible into writing in the English language.

The careless or intentional unavailability of an encryption key may attract a significant monetary penalty.(3)

A transaction with an entity in a jurisdiction with low effective direct and indirect tax rates should be adequately and contemporaneously documented, have economic substance and be undertaken at an arm's length market value. Revenue authorities in Australia and overseas are particularly vigilant in relation to this type of transaction.

Where the integrity of electronic records can be verified and ensured, the records should have the same standing as traditional paper documents. The Australian Tax Commissioner has specific rules relating to electronic records for tax purposes. See http://www.ato.gov.au and http://www.taxreform.ato.gov.au.

Taxation Ruling TR 96/7: a person who retains large numbers of documents may retain them in a more convenient form (eg microfilm, microfiche or CD-ROM) provided the substitute contains information on the essential features of the transaction. A record made and retained in electronic form will conform with tax legislation if in a form which is readily accessible and convertible into writing.

3. A New Tax System (Goods and Services Tax) Act 1999 (Cth)

An entity making a taxable supply, taxable importation, creditable acquisition or creditable importation must keep records for at least 5 years after completion of the relevant transaction.(4)

4. Electronic Funds Transfer (EFT) Code of Conduct

An account institution (5) must ensure where possible that a receipt is issued for every electronic transaction whether made over the internet or using EFTPOS facilities. The receipt must indicate the amount, exact time, place, type of transaction, an identifier of some sort distinguishing the particular customer and where security and privacy permits, the remaining or accumulated balance in the customer’s account.(6) Account insitutions must also provide periodic statements to their customers.(7)

Further, account institutions are required to keep sufficient records for transactions to be traced, checked, identified and corrected if need be.(8)

See Consumer Protection fact sheet for more information.

5. Corporations Act 2001

The ACN of a corporation must be displayed on every public document or negotiable instrument of the company.(9) The website of a corporation used to conduct commercial transactions should display the ACN of that corporation.

A corporation must affix its name in a conspicuous and legible manner on the outside of its registered office and every office where business is carried on that is accessible to the public. The expression "Registered Office" must be affixed in the same manner to the registered office.(10) A website may constitute a "place of business" for the purposes of this provision.

Corporations are required to advise the Australian Securities and Investment Commission (ASIC) of the location of books and records held on computers.(11) The evidentiary value of computer records, print outs and other digitally derived accounts is prescribed.(12)

A company must keep accounting records which correctly record and explain its transactions and financial position for 7 years after completion of the transaction to which they relate. The records must be kept so true and fair accounts can be prepared from time to time and can be conveniently and properly audited or reviewed.(13) Records may be kept at such place or places as the directors think fit.(14) Records must be kept in (or readily convertible into) writing in the English language.(15) The records must be available at all reasonable times for inspection without charge by any director or other authorised person.(16)

6. Limitations legislation

Statutory limitation periods limit the time in which an action may be brought against a person or entity. A statutory limitation period is typically six years from the cause of action arising (eg breach of contract) but this may vary in certain cases. In most cases, a corporation (including an Internet Service Provider (ISP)) should keep electronic records for at least six years to defend or bring proceedings in relation to breach of an electronic contract or defend against possible tort claims.(17)

7. Consumer Credit Code minimum print size

The Consumer Credit Code requires printed or typed documents to have at least 10 point size. It is unclear if this requirement applies to consumer credit documents issued in electronic format.

8. Retaining electronic contract records

There are no data retention requirements in relation to electronic contracts, however, any data evidencing the formation and terms of a contract may be required for evidentiary purposes in any future dispute proceedings.

A digital signature identifies when a document has either been changed since it was signed or was not signed by the party who is attributed as being the signatory. An electronic contract tendered in court whose digital signature indicates either of these events may amount to fraud or perjury, in which case its evidential value will be reduced.

Archiving procedures for electronic records should take into account any advance in technology. For example, if you have archived your data to a 5 1/4 inch disk, you need to retain a 5 1/4 inch disk drive to later recover that data.

A private key generating a digital signature may become compromised (eg by a future technological breakthrough). If a record is digitally signed using a private key that has been compromised, depending on the risk profile of the document, it may be necessary to have it replaced with a new digital signature to preserve the integrity of the original document.

See Secure Electronic Transactions fact sheet for more information.

9. Admissibility of electronic documents as evidence

Commonwealth evidence legislation applies in all Federal Courts and extends to Commonwealth records. A document includes any copy, reproduction or duplicate and includes any part of such document, copy, reproduction or duplicate.(18)

A party may give evidence in court by tendering the original of a document. In courts governed by the Commonwealth Evidence Act, where the document is an article or thing on which information is stored and cannot be used unless a device is used to retrieve, produce or collate it, the relevant document produced by that device is admissible (eg computer output read from a CD).(19)

Documents comprising business records (including electronic records) are admissible provided the fact asserted in the document is made either by a person who had (or is reasonably supposed to have had) personal knowledge of the fact or, made on the basis of information supplied directly or indirectly by such a person.(20)

A fact contained in a document that is a record of a message transmitted by electronic mail or by a fax, telegram, lettergram or telex is admissible. It is uncertain if this provision extends to internet documents such as Hypertext Mark-up Language (HTML) forms, TCP / IP log data and other digital formats.(21)

A document produced by a device or process is presumed to be authentic unless other evidence suggests the device or process was not working properly at the time of producing the document. For example, a document produced by a computer is presumed to be an authentic copy of an electronic record in the absence of evidence suggesting the computer was not working properly at the time of producing the document.(22) Website operators should keep evidence that documents produced by computer have been accurately and validly produced in case such documents are impugned by the other party tendering evidence of computer malfunction.

The evidence legislation of the States and Territories generally facilitates the admission of electronic records into evidence in court proceedings, however, variations exist in relation to admissibility and weight in certain cases.



Other relevant Fact Sheets:

Sources of Law
Proceeds of Crime Act 1987 (Cth)
Financial Transaction Report Act 1988 (Cth)
Income Tax Assessment Act 1936 (Cth)
Interpretation Act 1901 (Cth)
Tax Administration Act 1953 (Cth)
Taxation Ruling TR 96/7: A New Tax System (Goods and Services Tax) Act 1999 (Cth)
Electronic Funds Transfer Code of Conduct (revised version 2001)
Corporations Act 2001
Limitation Act 1985 (ACT)
Limitations Act 1981 (NT)
Limitation Act 1969 (NSW)
Limitation of Actions Act 1958 (VIC)
Limitations of Actions Act 1936 (SA)
Limitations Act 1935 (WA)
Limitations of Actions Act 1974 (QLD)
Limitations Act 1974 (TAS)
Consumer Credit Code
Evidence Act (Cth)

End Notes
1. Income Tax Assessment Act 1936 (Cth), sections 262A, 263, 264, and 264A
2. Acts Interpretation Act 1901 (Cth), section 25
3. Tax Administration Act 1953 (Cth)
4. Tax Administration Act 1953 (Cth), section 70
5. However, this only applies to account institutions that subscribe to the EFT Code.
6. EFT Code (revised version 2001), subclause 4.1 and clause 22. If the privacy or security of the customer is at risk, then the account balance must not be revealed.
7. EFT Code (revised version 2001), subclause 4.2
8. EFT Code (revised version 2001), subclause 9.1
9.a> Corporations Act 2001, section 219
10.> Corporations Act 2001, section 219
11.> Corporations Act 2001, section 1301
12. Corporations Act 2001, section 1306
13. Corporations Act 2001, sections 289(1) and (2)
14. Corporations Act 2001, section 289(3)
15. Corporations Act 2001, section 287
16. Corporations 2001, section 290
17. Limitation Act 1985 (ACT); Limitations Act 1981 (NT); Limitation Act 1969 (NSW); Limitation of Actions Act 1958 (VIC); Limitations of Actions Act 1936 (SA); Limitations Act 1935 (WA); Limitations of Actions Act 1974 (QLD); Limitations Act 1974 (TAS)
18. Evidence Act (Cth), section 3
19. Evidence Act (Cth), section 48(1)
20. Evidence Act (Cth), section 69
21. Evidence Act (Cth), section 71
22. Evidence Act (Cth), section 146