The Electronic Transactions Act

 
 

This Act gives people the right to submit things electronically. You can see that the government entity is entitled to prescribe that certain electronic communication be used ie an internet application but this Act overrides requires that things have to be sent to a specified address. Here is the operative provision:

 

9  Writing

Requirement to give information in writing

            (1)        If, under a law of the Commonwealth, a person is required to give information in writing, that requirement is taken to have been met if the person gives the information by means of an electronic communication, where:

            (a)        in all cases—at the time the information was given, it was reasonable to expect that the information would be readily accessible so as to be useable for subsequent reference; and

            (b)        if the information is required to be given to a Commonwealth entity, or to a person acting on behalf of a Commonwealth entity, and the entity requires that the information be given, in accordance with particular information technology requirements, by means of a particular kind of electronic communication—the entity’s requirement has been met; and

            (c)        if the information is required to be given to a Commonwealth entity, or to a person acting on behalf of a Commonwealth entity, and the entity requires that particular action be taken by way of verifying the receipt of the information—the entity’s requirement has been met;

 

The Electronic Transactions Act is recognized by the PAM which states:

The Electronic Transactions Act 1999 gives the public the option of lodging applications electronically (that is by fax, email or other electronic means) provided any agency-specific IT requirements are met.

Details of these IT requirements must be readily available to the public through such means as information sheets, application forms and websites.

 

Departmental offices in Australia

 

For departmental offices in Australia these IT requirements are that applications are lodged by fax using the fax number of the appropriate office, where the fax number has been publicly advertised (for example in information sheets, application forms or departmental website) as being available for making visa applications.

 

Overseas posts

 

IT requirements for overseas posts are that, wherever technology permits, applications can be lodged by fax using the fax number of the appropriate office.

For applications lodged by service delivery partners (SDP) on behalf of visa applicants, IT requirements for overseas posts are that:

·         applications can be lodged by email using the designated email address of the appropriate overseas post or

·         wherever the technology permits, applications can be lodged by sending applications over the department's secure file server to the appropriate overseas post.

 

22.2      Effect of the ET Act on valid application requirements

 

For certain visa subclasses, Schedule 1, regulation 2.10 or regulation 2.10AA requires the application to be sent by mail or courier to a specified address. This requirement, however, does not prevent the option of electronic lodgment of applications for those visa subclasses. This is because the Electronic Transactions Act prevails over the Migration Regulations. Therefore, the department's IT requirements for lodging applications for these visa subclasses electronically must also be available to persons along the lines outlined in section 22.1 The ET Act.

 

23      Faxed applications

 

23.1      Limitations

Visa applications may be faxed only to the fax number of the offices as stipulated in the visa application, information forms or on the departmental website. The validity requirements for applications - see What is a valid application - also apply to faxed applications.

 

23.2      Document integrity

Officers should ask the applicant to send in the original application form if there is any uncertainty as to the identity of the applicant or the integrity of information in the application.

24      Internet applications

24.1      Legislative authority

Together, several provisions, including:

·         regulation 1.18(2)

·         regulation 2.10AA and

·         regulation 2.12JA

allow visa applications to be made via the Internet. (Internet application is defined in regulation 1.03.)

 

So if one is running close to deadline a fax or an email can be used to deliver a document or even a visa application to Immigration.

Email practice point

The final point on email always use the same email address with Immigration. Never allow a client to change an email address and keep offspring away from dealing with Immigration via email.

Some definitions – Acts Interpretation Act 1901 Cwth

The most important provision is this:

36  Calculating time

            (1)        A period of time referred to in an Act that is of a kind mentioned in column 1 of an item in the following table is to be calculated according to the rule mentioned in column 2 of that item:

 

Calculating periods of time


Item

Column 1
If the period of time:

Column 2
then the period of time:

1

is expressed to occur between 2 days

includes both days.

2

is expressed to begin at, on or with a specified day

includes that day.

3

is expressed to continue until a specified day

includes that day.

4

is expressed to end at, on or with a specified day

includes that day.

5

is expressed to begin from a specified day

does not include that day.

6

is expressed to begin after a specified day

does not include that day.

7

is expressed to end before a specified day

does not include that day.

Example 1: If a claim may be made between 1 September and 30 November, a claim may be made on both 1 September and 30 November.

Example 2: If a permission begins on the first day of a financial year, the permission is in force on that day.

Example 3: If a licence continues until 31 March, the licence is valid up to and including 31 March.

Example 4: If a person’s right to make submissions ends on the last day of a financial year, the person may make submissions on that day.

Example 5: If a variation of an agreement is expressed to operate from 30 June, the variation starts to operate on 1 July.

Example 6: If a decision is made on 2 August and a person has 28 days after the day the decision is made to seek a review of the decision, the 28‑day period begins on 3 August.

Example 7: If a person must give a notice to another person at any time during the period of 7 days before the day a proceeding starts and the proceeding starts on 8 May, the notice may be given at any time during the 7‑day period starting on 1 May and ending on 7 May.

 

            (2)        If:

            (a)        an Act requires or allows a thing to be done; and

            (b)        the last day for doing the thing is a Saturday, a Sunday or a holiday;

then the thing may be done on the next day that is not a Saturday, a Sunday or a holiday.

Example:         If a person has until 31 March to make an application and 31 March is a Saturday, the application may be made on Monday 2 April.

            (3)        In this section:

holiday, in relation to the time for doing a thing, means:

            (a)        a day that is a public holiday in the place in which the thing is to be or may be done; and

            (b)        if the thing is to be or may be done at a particular office or other place—a day on which the place or office is closed for the whole day.

 

When a public holiday falls on a Monday and the deadline falls on a Saturday then the thing can be done on the following Tuesday.

 

But some caution is required here. If the applicant is required to hold a substantive visa in order to do the ‘thing’, like applying for a further visa, then the fact that the first visa expires on the Saturday, does not mean that the first visa is ‘extended’ until Monday.  The writer could see an argument to be raised in an emergency to say that the ‘thing’ being an application for a new visa ought still be allowed to be done on Monday. But, of course, the preferable course is for the second visa application to be made on the Friday before the Saturday.  Obviously under the Electronic Transactions Act the visa application can be made on the weekend via fax or email to the appropriate fax number or email address (with payment tendered by credit card) and many visa applications can be made on on-line. Technically there is an Immigration official at every Australian international airport. Again in an emergency an application could be given to an Immigration officer at the airport.

 

Note the definition of the word ‘holiday’  as ‘a day on which the place or office is closed for the whole day’.  Almost all Commonwealth offices close for an extra day over the Christmas – New Year period so that if a deadline, like lodging an application fall on that day then the application can be lodged the following day. The AAT closes for the whole of the period between Christmas and new year. For example in 2014/15 here are the dates of closure:

 

Offices will close from 5:00pm on Wednesday, 24 December 2014 and will reopen at 8:30am on Friday, 2 January 2015

 

What this means is that any deadline for lodging an AAT or RRT application falling on say 27 December 2014 is extended by force of law until Friday, 2 January 2015! One would need to check this each year for the exact dates.

 

One may question whether the definition of ‘holiday’ is relevant in the age of the internet.  But the definition  refers to  ‘the thing…. may be done at a particular office’, which means that if the possibility of lodging the matter at a particular office exists then the holiday definition still applies even though it could be done in the alternative, online.

 

One queries whether if an application can only be lodged on-line then the public holiday extension probably would not apply!

 

All this means that one is better off in all cases, never to rely on an weekend or public holiday ‘extension’ and always get things done before that weekend or public holiday.

 

However note that the  ‘working day’ definition in s 5 of the Migration Act is different to ‘holiday’.  S 5 states:

 

working day, in relation to a place, means any day that is not a Saturday, a Sunday or a public holiday in that place.

 

Note this concession for the Christmas - New Year shut down in the Federal Court Rules in rule 1.66 :

             (5)  If the time fixed includes a day in the period starting on 24 December in a year and ending on 14 January in the next year, the day is not to be counted.

 

This would apply for appeals to the Full Federal Court and initiating applications in the Federal Court (the latter being judicial review of decisions of the Minister personally)

 

The effect of this is that if a Federal Court deadline for lodging an application falls on say 27 December 2015. Then none of the calendar days between 24 December and 14 January are counted. In that case the deadline would falls on 15 January (assuming 15 January is not a Saturday or Sunday).  This Rule 1.66(5) only applies to the Federal Court and does NOT apply to the Federal Circuit Court.

 

Finally s 36(2) is a specific concession only for federal government ‘things’ to be done. The principle does not apply in commercial law. In commercial law if the thing has to be done by a date which falls on  ‘a Saturday, a Sunday or a holiday’ then it must done on the Friday before.

 

37  Expressions of time

 

Where in an Act any reference to time occurs, such time shall, unless it is otherwise specifically stated, be deemed in each State or part of the Commonwealth to mean the legal time in that State or part of the Commonwealth.

 

But as far as internet applications are concerned the time of lodgement is partly regulated by this provision :

 

Reg 2.10C      Time of making Internet application

 

For these Regulations, an Internet application is taken to have been made:

(a)            if Australian Eastern Standard Time is in effect in Australia — at the time, identified using Australian Eastern Standard Time, that corresponds to the time at which the Internet application is made; or

 

(b)      if Australian Eastern Standard Time incorporating Daylight Saving Time in the Australian Capital Territory is in effect in Australia — at the time, identified using Australian Eastern Standard Time incorporating Daylight Saving Time in the Australian Capital Territory, that corresponds to the time at which the Internet application is made.

 

 

Barbara Davidson