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Abstract
This thesis analyses the legal structure of open banking frameworks of the two leading common-law jurisdictions (Australia and the United Kingdom) to determine whether they should incorporate legal features equivalent to those which support efficiency and safety in banking payment systems. The analysis shows that legal assessment of open banking frameworks should include evaluation against banking law principles because of the functional equivalence of customer data and customer funds as valuable information.
More specifically, this research addresses the question:
Should open banking frameworks include the legal features for the sharing and use of customer banking data which are comparable to those included in banking payment systems for the payment and use of customer money?
The thesis develops a conceptual framework to enable a functional comparison to be made between the laws which govern the transfer and use of customer data under open banking frameworks and those which govern the payment and holding of customer money under banking and payment systems, from the foundation that both are networks for the transfer of valuable infrormation. It uses this to compare the open banking laws and regulations of Australia and the UK by reference to the legal rights to share data, the legal responsibilities for shared data and the legal relationships in sharing data. The differences are evaluated against the legal features of banking payment systems which perform similar functions with respect to customer funds, to determine deficiencies in the frameworks' legal design. The risks that arise from these deficiencies are then identified and assessed, using a risk classification developed from communication systems and banking payment systems.
From this analysis, it is concluded that the some of the legal features which support effectiveness and safety in the frameworks are impaired when evaluated against equivalent features in banking payment systems. Recommendations are made for improvements by reference to the legal features of banking payment systems.
The thesis provides new principles for the legal design of open banking frameworks based on the laws which protect and promote banking payment systems. Their use can ensure that when customers are ‘banking on data’ under these frameworks they are supported and protected by legal rights, responsibilities and relationships equivalent to those which customers rely on to support and protect them when they are banking with their money.
