Carrey Hastings Electronic Banking in Australia assignment
I need to get my assignment checked. It is a research paper and here is the question 'Describe the legal and regulatory framework governing electronic banking in a country of your choice (for example, Australia). Comment on the various legal issues, shortcomings and legal and regulatory problems (if any) faced and suggest legal and regulatory reforms which may be necessary.' Electronic Banking in Australia legal and Regulatory Framework Lorem ipsum dolor sit amet, consectetur adipiscing elit. Carrey Hastings 13166759 Electronic Banking [Teacher Name] 1st July 2014 Table of Contents Electronic Banking in Australia legal and Regulatory Framework 1 Introduction 1 Discussion 3 Background of E-Banking in Australia 3 Legal Implications of E-Security under E-Banking 4 Electronic Records for E-Banking 7 Data under the Evidence Act 1898 9 Electronic Banking – Rising Fraud in Australia 10 Legal Considerations for Basic Banking Online 12 Electronic Signatures and the Law 13 Conclusion 15 Electronic Banking in Australia legal and Regulatory Framework Introduction While in many ways banking is like any other industry, there are important differences. Banking penetrates almost all households and all business enterprises. Like the legal and education systems, banking services are a necessary foundation for the rest of the economy. Moreover, when banks tighten or ease their lending conditions, either through imposed monetary policy or their own internal guidelines, almost all business and personal customers are directly or indirectly affected. Banking has been and still is a highly regulated industry. In addition to its own legislative framework, it has its own regulatory authority, the Reserve Bank of Australia, dedicated to preserving safety, and public perception of safety, of banks. It has also had three major government inquiries in a decade. Scarcely a year has gone by without a major change in banking regulation . The largely deregulatory phase of changes in the early 1980s has been followed by a systematic re-ordering of prudential supervision and new avenues of growth for banking – most notably electronic or online banking . Hence, compliance and legal issues arise from the growth in usage of e-banking and the differences between electronic and paper-based processes. E-banking is a new delivery channel where the laws and rules governing the electronic delivery of certain financial institution products or services may be ambiguous or still evolving. Specific, regulatory and legal challenges include Uncertainty over legal jurisdictions and laws governing a specific e-banking transaction, Retention of required compliance documentation like applications, statements, disclosures and notices; and establishment of legally binding electronic agreements. Further important elements of a national payment system will include laws, standards, rules and procedures set by legislators, courts and regulators that define and govern the mechanics of the payment transfer process and the conduct of payment service markets . Banks have made huge profits from Internet banking, but have not spent enough on a secure online environment for customers, many technology experts claim to date. Clearly there is a role for law and order, for regulation to eliminate barriers to entry and to ensure fair play and for pro-active supervision to ensure that the participants’ information and judgement skills are sufficient. Only as adequate ground rules are in place, and participants become sufficiently informed and capable, are the benefits of free markets, influencing decisions on pricing and the amounts produced, traded and consumed, likely to be realised. Hence, the purpose of this paper is to discuss the legal framework and security surround e-banking. This has become a major issue and there is an acknowledged need for the development and deployment of practical cost effective solutions, including technical, legal, industry and policy aspects to better securing ‘internet banking” . This activity is now clearly significant to the national economy. ? Discussion Background of E-Banking in Australia The revolution in the way commerce is conducted has been fuelled by the explosive growth of the Internet in the last two decades. Geography and time no longer bind businesses, allowing them to reach out to global markets through electronic commerce. Progressively, governments, businesses and consumers are using information technology and the Internet to electronically exchange information, produce, market, buy, sell, and even deliver products and services to place virtually unreachable before. E-commerce increases choices, fosters competition, create new business opportunities and marker efficiencies . The world of commerce was transformed by the advent of the Internet in the 1990’s. A new mechanism allowing online authentication was required to enable ecommerce to reach its full potential. In particular, electronic signatures, and digital signatures, were established to authenticate and facilitate commercial transactions in the electronic environment. The main issue facing global communication and trade is legal recognition of electronic signatures. They needed to imitate/rival the traditional paper-based signatures, providing the same assurance and trust. This required the crafting of a legal framework . Electronic banking was developed in Australia in the 1970’s. It involved automatic teller machines (ATM’s) and electronic payment at the point of sale (EFTPOS). In 1998, it is estimated that only 30% of retail banking transactions will occur at a branch of the bank and 70% of retail transactions will involve electronic channels such as ATM or EFTPOS. In the mid 1980’s, the government took up consumer protection for electronic banking. Regulation veered between a code of conduct/practice and threats of legislation. The standing Committee or Consumer Affairs Ministers sanctioned a major redraft of the Code. The Electronic Funds Transfer Code of Conduct has been successful in protecting the interests of both financial institutions and consumers. The Code is contractually enforceable by incorporation into every contract between a bank and a customer intending to use EFTPOS: EFT Code cl 2.1 . Legal Implications of E-Security under E-Banking Security risks might cause banks and other related financial institutions to lose confidence in the e-banking framework if the legal issues and problems are not addressed through policies and effective legal framework. It is possible for third parties to intercept e-payments, which involve credit cards, cheques or e-cash where service supplier and the recipient communicate, and the information collected is misused. For instance, if an unauthorised person is able to use an ATM in relation to the customer, for example, the customer’s balance an that account. There are numerous cases in Australia concerning misuse of e-banking even through ATM cards that have been reported . The main security risks on e-banking include, identity theft such as phishing and spooling. “While phishing involves sending authentication emails which trick customers into giving password details by replying to the email, the later involves the use of a fake website that makes customers believe they are using a real site” . Other risks include credit risks, transaction risks, legal and compliance risks, funding and investment related risks. The question of security and privacy in the e-commerce environment has been considered and addressed by the Australian government. A consistent theme of building trust and confidence has been highlighted among other things in the Australian governments, e-government strategies. Underpinning all of the e-government activities is respecting and protecting the privacy and information security of citizens, businesses, community and other organisations. As part of the initiatives, the governments trying to promote a culture of security in relation to e-commerce, AGIMO, in conjunction with the Privacy Commissioner and relevant security agencies will assist to understand and implement legislation and requirements for security and privacy. This implementation will lead to even better protection of personal information . It is believed that when new technology is developed, new forms of payment methods do not require the manipulation of bank accounts or credit facilities, therefore may be provided by enterprises that do not have authorisation like banks. New methods of payments and bank services are generally known as digital cash or electronic money systems, and fall into three types. The impact of information technology can be observed in four main areas of electronic transfers in banking systems . 1. Consumer electronics e.g. Banking, EFTPOS, Internet Banking, Telephone/Smart phone banking, etc. Telephone or smart phone banking involves a transacting retail business between a bank and its customers. The transaction is completed through voice response and recognition software or via an application on a smart phone. Facilities available are account enquiry, payment of bills, transfer of funds, message services, etc . 2. Corporate Electronic banking e.g. Financial EDT whereby the process of exchanging information including business data such as invoices, etc. can be done electronically, which is quick and cheap. 3. Inter-bank Electronic Banking e.g. SWIFT (Society for Worldwide Inter-bank Financial Transfer) and RENTAS (Real-Time Electronic Transfer of Funds). SWIFT has been supplying banks with specific software to enable them to transfer to the new system SWIFT Net. Major corporations use SWIFT Net to obtain information for their multiple bank accounts. SWIFT introduced SCORE in 2007, which enables first time corporations to interact, is a standardised way with participating SWIFT financial institutions. 4. Products (Plastic Cards) e.g. Debit Cards, SMART CARDS, Credit Cards and Charge Cards. The issue is whether the use of online services guarantees e-security for the customers . As the advances in technology continue to facilitate the creation of new advanced methods and approaches to financial service delivery while necessitating the introduction of new electronic financial products, these opportunities might be tampered by legal uncertainty. This is a great challenge for countries like Australia and other countries that lack in regulation in this fast growing area. There are legal issues, which affect the development of electronic financial services in Australia . There is no guaranteed security against fraud and other related cyber offences with the lack of legal framework that regulate this area in Australia. E-banking through the use of ATM and EFTPOS system raises a number of legal problems with regard to the effectiveness of the pass code, privacy, security of the system, liability in the case of fraud or card loss and liability of losses caused by system failure. Countries therefore, need to have an effective framework that will not inhibit the development of ICT. Some consumers are unwilling to use credit/debit cards for online orders because of the security risks posed by cyber fraud. Online dangers such as identity theft, fraud, and phishing emails designed to convince consumers to reveal their personal and financial information create security threats everyday. In the US,it is believed that credit card fraud cost Web merchants over $1.4 billion annually. In an effort to try to solve the problem by blocking fraudulent transactions and identify online culprits, the Internet Merchant Risk Council has been helping companies involved in e-commerce by setting up a database to counter credit card fraud on their websites . It’s suggested that VISA, Master Card and other related financial institutions are in a better position to minimise if not solve online credit card fraud by assuming and accepting higher risk and liability and to install computer program codes that can assure consumers security . Apart from the many benefits brought by the Internet to consumers and merchants through e-commerce, theft has been simplified through technology. Comparatively, in the UK, the legal problems in this area were extensively considered by the Review Committee on Banking Services Law and Practice which recommended a two-tier approach to the regulation of such systems, with minimum level of statutory regulation supplemented by a code of best practice – similar to the Australian Securities and Investments Commission Act 2001 (Cth), which contains in Division 2 the unconscionable conduct and consumer protection provisions in relation to financial services providers that are no longer in the Trade Practices Act and the Consumer Credit Code, usually referred to as the Uniform Consumer Credit Code. Law of contract and agency will always be involved in e-banking and the parties will be the banks and their customers, hence the need for a reform to contract laws to accommodate online banking These legal issues need to be well addressed in the banking laws, as well as other related financial issues in Australia and around the globe. In Australia the legislation relating to these issues are the Banking Act 1959 (Cth), Corporations Act 2001 (Cth), Australian Prudential Regulation Authority Act (Cth) etc). These Acts address all issues related to e-banking Electronic Records for E-Banking Another issue with e-banking is that electronic data can be modified easily; this presents as an issue when presenting evidence in electronic form. Electronic data is inadmissible as evidence in many jurisdictions, while others accept it purely as circumstantial evidence. There has been a lot of progress in technology to address the issues surrounding electronic evidence for digital transactions. The technology is based on four underlying principles : • Authenticity- the transaction originates from an authentic source, • Integrity- the transaction is same and not hacked as was submitted. • Confidentiality- data within the transaction is confidential. • Non Repudiation transaction is stored and can be used as proof in court later. The Australian Government felt that it was necessary to provide legal recognition for transactions carried out by electronic communication and to have reliable electronic government services and records. As a result, various Commonwealth and State Evidence Acts and Electronic Transactions Acts were enacted.For example, the Privacy Act 1988 (Cth), provides legal recognition for transactions carried out by means of electronic data interchange and other means of electronic communication, commonly referred to as “electronic commerce”, which involve the use of alternatives to paper-based methods of communication and storage of information, to facilitate electronic filing of documents with the Government agencies and further to amend the Consumer Credit Code, the Banking Act 1959 (Cth), the Income Tax Assessment Act (1936) (Cth) and the Reserve Bank Reserve Bank Act 1959 (Cth) and for matters connected . Similarly, the Corporations Act (2001)(Cth), shall extend to the whole of Australia and, it applies to any offence or contravention there under committed outside Australia by any person. Hence, the Evidence Acts and Electronic Transactions Acts enable : • Legal recognition to Electronic Transaction/Record • Facilitate Electronic Communication by means of reliable electronic record • Acceptance of contract expressed by electronic means • Facilitate Electronic Commerce and Electronic Data interchange • Electronic Governance • Facilitate electronic filing of documents • Retention of documents in electronic form • Legal validity to digital signatures • Uniformity of rules, regulations and standards regarding the authentication and integrity of electronic records or documents • Publication of official gazette in the electronic form • Interception of any message transmitted in the electronic or encrypted form • Prevent Computer Crime, forged electronic records, international alteration of electronic records fraud, forgery or falsification in Electronic Commerce and electronic transaction. Initially the Act was not made applicable to Cheques Act 1986 (Cth). However CA 1986 was included to redefine ‘Cheque’ as “A ‘Cheque’ is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand and it includes the electronic image of a truncated cheque and a cheque in the electronic form” . The Banking Act 1959 (Cth) was also amended to make the Act applicable to electronic cheque and truncated cheque. The Cheques Act 1986 (Cth) was amended to give legal recognition to electronic records as documents produced for inspection in the Court as “evidence”,including special provisions as evidence relating to electronic records, the admissibility of electronic records and for acceptance of opinion of the Certifying Authority for proving the digital signature. Cheques Act was amended to include electronic documents within the meaning of documentary evidence which can be produced in a court of law . The bankers book of evidence Act is an alternate Act under which banks can present affirmed duplicate of a passage in books as prima face evidence of the transaction. In a few jurisdictions situations where both the electronic information and physical documentation is available, the law proclaims that the physical documentation will be utillised as confirmation for the transaction. Each nations laws differ, with the greater part of them changed to include electronic evidence, therefore there is not an abudance of case law. Consequently, the Bankers' Books Evidence Act 1879 was changed to stipulate that "bankers' books" incorporate records, day-books, money books, record books and all different books utilised within the normal business of a bank whether kept in the composed structure or as printouts of information put away in a floppy, plate, tape or any possible type of electro-magnetic information stockpiling gadget. While managing offenses and disciplines identifying with workstation criminal acts, the Evidence Act 1898 has characterised different machine wrongdoings which are definite beneath: Contaminant: Computer contaminant as clarified in the EA 1898 (Section 43) methods any set of workstation guidelines that are composed : • to modify, destroy, record, transmit data or programme residing within a computer, computer system or computer network; or • by any means usurp the normal operation of the computer, computer system, or computer network. Data under the Evidence Act 1898 Data here means a representation of information, knowledge, facts, concepts or instructions which are being prepared or have been prepared in a formalised manner, and is intended to be processed, is being processed or has been processed in a computer system or computer network, and may be in any form (including computer printouts magnetic or optical storage media, punched cards, punched tapes) or stored internally in the memory of the computer . The Evidence Act explains a computer virus as any computer instruction, information, data or programme that destroys, damages, degrades or adversely affects the performance of a computer resource or attaches itself to another computer resource and operates when a programme, data or instruction is executed or some other event takes place in that computer resource. The law also implies that damage means to destroy, alter, delete, add, modify or rearrange any computer resource by any means . Electronic Banking – Rising Fraud in Australia The increase of online banking fraudsters presents a threat to Australian Banks in the booming internet market. Public trust in the integrity of online systems is being tested and the banks have put their most important assets - their reputations - on the line. The willingness of banks, such as NAB, to invest in new security platforms to protect customers is not in question. To its credit, NAB is the first bank to respond to the growing internet fraud crisis by adding a another/second layer of security to its online service with SMS authentication . All the major banks have now made a similar move. The banks are caught in a vicious cycle of reacting constantly to the new and artful innovations of cyber criminals. Thousands of hours of development time and multi million dollar budgets are being allocated to ongoing improvements to security. For example NAB’s technology executives highlight the pressures from cyber criminals in a confidential report. The frequency of internet banking fraud, create workload problems for the fraud investigations team and resulted in increased cost and/or reduction in the time available to focus on each fraud . If internet banking fraud becomes so common in Australian banks, then the banks may have to question their strategies to migrate customers to their web services. All of the banks are committed to their internet products, the running costs are lower then branches and telephone banking. However, they risk losing public confidence. The NAB document reveals an information gap between the banks and their customers. It may be time for the banking regulator, the Australian Prudential Regulation Authority, to force all deposit-taking institutions to disclose the level of internet fraud happening on their websites . Most the Bank’s will share email scams running at any point in time on their websits, but it is not part of the legislaition, it up to them what they do. In 2006, the National Australia Bank revealed that internet banking fraud had risen from 60 to 70 cases a month over the past year. However, it stressed the value of online fraud had slowed in the same time and vigorously defended the security of its internet-banking service. NAB was responding to claims that a sensitive internal report had warned it could lose up to $14.1 million via internet banking fraud in 2005. The 2005 report to senior executives stated that there had been 60 online fraud incidents in March, 2004. From 2004-2006, internet banking usage had increased by around 30 per cent and the incidence of fraud was up from around 60 cases per month to around 70. In March 2009, the bank refused to confirm the value of losses, saying that it was “commercially sensitive”. NAB’s main competitors - Westpac, Commonwealth Bank and ANZ – had also refused to disclose losses on their internet banking sites. However, all indicated they usually reimburse victims of online banking fraud . Under the Electronic Funds Transfer code now the ePayments code, banks are required to reimburse online customers for fraud in cases where customers do not contribute to the losses . However, consumer advocates believe the banks should be doing more to protect internet customers. Australian Consumers Association spokeswoman Lisa Tait said banks needed to improve their communications with customers. “The banks are encouraging consumers to go online, so consumers need to know it is safe to use,” she said. This means that there are a lot of scammers in cyberspace and they are getting sneakier and smarter and the banks should be providing customers with free virus protection software. Ms Sabin further reported that fraud losses reduced by about 5 per cent from 2009-2010 fiscal years due to improved detection, prevention and recovery. It is estimated that the NAB potentially looses around $14.1 million via internet banking fraud. A report, issued to senior executives 2005, also said there had been 60 online fraud incidents in March 2004 only . Hence, according to the Australian Consumers’ Association, banks need to improve their communications with customers. At the moment, banks are encouraging consumers to go online, so consumers need to know it is safe to use. Regardless, as per a NAB 2012 report, there had been some reduction in losses in the 2011 – even though losses cannot be accurately recoded as the value of fraud committed or attempted against NAB customers is not publicly disclosed . Online fraud has been a focus of activity for law enforcement agencies and banking regulators in Australia since March 2004. In 2005, the Australian High Technology Crime Centre established a banking investigations team to assist banks to respond to online threats. APRA has also recommended that banks implement specific strategies to minimise losses . The second level of security, is an SMS authentication service, which sends a code to the mobile phone of an online customer about to execute an online payment. Internet transactions cannot be completed until the code is entered into the internet service by the customer – making this a successful endeavour. Legal Considerations for Basic Banking Online The mode of electronic funds transfer (EFT systems SWIFT) between financial institutions from one country to another is not clearly reflected by the legal frameworks that regulate financial transactions. People can use online payment through the Internet using these cards . Nevertheless, since 2000, 95% of wages and salary payments and 70% of shopping has be conducted electronically. Hence, most pension and other support payments require a banking connection. Various surveys have suggested that approximately 3% of adult Australians do not have a banking account . Simultaneously the ‘user pays’ fees trend on banking products is likely to be increasingly extended, particularly on the less profitable low-balance transaction accounts which are more likely to be held by the poor. There is a danger of growth in the ‘unbanked’, a new grouping effectively excluded from economic citizenry. In many overseas countries, refusal by banks to cash cheques for certain people or refusal to allow them to open accounts has resulted in governments requiring banks to provide a basic banking service to all. Although variously defined, such a service seems to include : • a safe, accessible place to store money, • a mechanism to obtain cash from the account, • a mechanism to make third-party payments, • an ability to cash government cheques and to deposit third-party cheques, and • a zero or capped low overall cost. Variations seem to rest on the number of fee-free transactions permitted and whether both face-to-face and automated banking services are included. Although anecdotal evidence suggests that some banks have referred undesirable customers elsewhere. In 1991, Martin Inquiry recommended that the retail banks and the Department of Social Security together explore the development of a basic banking product to be made available to all. If the banks should choose not to respond to this initiative, some compulsion would appear appropriate to ensure that an element of divisiveness in the community is avoided. This could be done simply by making a basic banking product a condition of being granted a banking licence . There will be those who argue that such social assistance should be provided from the budget and not within the banking system. Banks themselves benefit from the structure of the banking system and its regulation (for example, via the Reserve Bank’s role and perceived protection) in a host of ways other than by budgetary assistance . Moreover, it is not just a question of ensuring the financial system’s ground rules to protect the disadvantaged. The value of the financial system to all its participants, private business and government agencies alike, partly depends on its full coverage. The question of basic banking service, however, extends beyond the economic arguments of efficiency and coping with public good aspects. Banking services have become a prerepuisite for communnity participation by modern economic life. Electronic Signatures and the Law The legal stance under the English and Australian laws purposes that the validity of a signature is determined not by its form but by the function it performs. Thus, if a signature on a document is challenged in the court of law, evidence will be required to demonstrate (a) the identity of the signer affixing the signature, (b) the intention of the signer to sign the document and (c) the signer approves and adopts the contents of the documents. Professor Reed considered these three requirements as the primary function of a signature. The following section demonstrates how these three evidential requirements apply to a manuscript signature. For example, where a manuscript signature is affixed on a document, identifying the signatory is the most fundamental matter to be evidenced . Evidence will be cited to demonstrate that the signature being referred to relates to that of the asserted signatory's ordinary signature. With the assistance of a penmanship expert, the signature is contrasted and a specimen of the signatory's signature signed characteristically in different circumstances. Penmanship examiners for the most part research two fundamental perspectives: pictorial representation and development of letters. Falsifiers have a tendency to concentrate on the pictorial points of interest, for example, slope, size, and spacing yet regularly neglect to duplicate the way the letters are developed, for example, the heading of the letters. The signature is additionally further confirmed on the premise of the characteristics of the instrument used to attach the signature, for example, how smooth the signature has been signed and whether it is spiked or sure. Evidence will be showed to demonstrate that the signatory who affixed his/her manuscripts signature on the record had the purpose to sign that archive. For instance, in the English instance of L'estrange v F Graucob Ltd, it was held that under the general standard with respect to signature, once an individual signs a contract, he/she is dog by its terms on the grounds that he/she had the plan to sign the contract. It is insignificant whether he/she read the terms of the contract or not . PISD’s The use of PISDs such as smart cards and (lash disks to store electronic signatures was, in general. considered to be unsafe. Concerns were raised that PISDs could easily be lost or stolen and used for malicious purposes. On the other hand, electronic signatures stored on a PISD and secured with a password/PIN were believed to provide adequate security . However, participants did not seem to envisage that it a user is careless towards his/her computer password. then there is an equally good chance that he/she would also be careless towards his/her PISD's password/PIN. In the event that a user loses his/her PISD with his/her electronic signature stored on it but the password/PIN is secure, the security of the electronic signature largely depends on the type of PISD used. Smart cards have been found to be the most secure form of PISD. Latest developments in the field of smart cards have significantly enhanced their security and usability, thus increasing the safety of electronic signatures stored on such devices. However, businesses in general demonstrated very little understanding of the smart card technology and its security features. Quite a few were under the wrong impression that smart cards are embedded with the magnetic stripe technology featuring on most hank credit cards . ? Conclusion Internet banking in various forms is growing rapidly in Australia. The changeover to Internet banking may be traced to changing consumer behaviour coupled with individuality, mobility, independence of time and place and flexibility. Financial transactions can now be undertaken by anyone with banks and financial institutions (non-banks). Financial service companies using the Internet have discovered a new distribution channel. Complex financial products may be offered at lower cost without compromising in quality to a larger number of customers. Such customers are neither bound by geography nor by time of day or night given the 24/7 cyber world that we live in today. Hence, in Australia, E-banking and electronic payment systems preceded enactment of any law that governed digital e-commerce. Whenever legal support has been necessary, in the absence of availability of proper legislation, contractual legal support has been resorted to by execution of various complex agreements between the parties and application of analogous laws and the general principles of common law. As mentioned above, efforts have been made by the institutions concerned and the Reserve Bank of Australia to examine various legal issues involved and identify the existing laws to be amended and new laws to be enacted. Besides, Information security is also essential to a financial institution’s ability to deliver e-banking services, protect the confidentiality and integrity of customer information, and ensure that accountability exists for changes to the information and the processing and communications systems. Therefore appropriate laws to keep pace with developments in technology as well as legal recourse against computer crimes are essential for promotion of e banking activity. Another important requirement would be the existence of suitable policies and procedures to support the legal framework to ensure safety of the information asset. ? Bibliography Aljifri, H. A., Pons, A.& Collins, D. (2003). Global e-commerce: a framework for understanding and overcoming the trust barrier. 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