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Treaties Committee recommends Australia sign two important cyberlaw Conventions - March 2011

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The Joint Standing Committee on Treaties has recommended that Australia accede to two important cyberlaw Conventions. The United Nations Convention on the Use of Electronic Communications in International Contracts (Electronic Contracts Convention) and the Council of Europe Convention on Cybercrime (Cybercrime Convention).

Electronic Contracts Convention

The United Nations Convention on the Use of Electronic Communications in International Contracts (the Convention) is the first United Nations Convention to address legal issues arising from the digital economy. Eighteen countries have signed the Convention, including major trading partners such as Korea; China; and Singapore.

The Convention contains a comprehensive framework for establishing contracts using electronic communications.

The Committee noted that in practice, businesses with disputes relating to electronic contracts have not sought to use legal means to resolve their disputes. However, the Committee concluded that signing the Convention would ensure that when an “inevitable” legal dispute arises, the Australian legal system will comply with the internationally recognised process for resolving disputes.

The Committee recommended that Australia take binding treaty action to join the United Nations Convention on the Use of Electronic Communications in International Contracts.

Cybercrime Convention

The Council of Europe Convention on Cybercrime entered into force in 2004. The Convention covers a range of criminal activity involving use of computers or computer networks, such as in unlawfully accessing computer data or interfering with computer systems, or where computer use is integral to the offence, such as for the distribution of child pornography via the Internet.

Over 30 European member states and one non-member, the United States, are party to the Convention. Seventeen other nations have signed the Convention, including non-members Canada, Japan and South Africa.

The Treaties Committee drew considerable attention the role of the Convention in boosting international co-operation to deal with increasingly sophisticated and diverse forms of computer-related criminal activity.

Articles 29 to 34 of the Convention set out the expectations for mutual assistance between Parties including:

  • The preservation of some computer data, and associated traffic data, by service providers for both domestic and foreign investigations;
  • Mutual assistance in the disclosure of traffic data in real time, but only to the extent permitted under applicable treaties and domestic law (Australian legislation does not allow for real-time interception by foreign countries); and
  • Establishment of a 24 hour, 7 days per week point of contact to receive requests and provide assistance for searching and accessing computer data.

Naturally, these aspects of the Convention have raised some community concerns about privacy and security.

The Attorney-General’s Department submitted to the Treaties Committee that the capacity to access and preserve data is fundamental to the new mutual assistance arrangements. However, they also advised that Australia would lodge a Reservation to requirements for foreign investigation of real-time data to ensure they matched Australian thresholds - in particular, Australian law limits disclosure of real-time traffic data to investigations relating to a criminal offence punishable by at least three years’ imprisonment.

The Committee recommended that Australia should accede to the Council of Europe Convention on Cybercrime and update local laws as appropriate.

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