Bank secrecy in Australia: terrorism legislation as the new exception to the Tournier rule
| Date | 01 January 2005 |
| Pages | 56-65 |
| DOI | https://doi.org/10.1108/13685200510621190 |
| Published date | 01 January 2005 |
| Author | Paul Latimer |
| Subject Matter | Accounting & finance |
Journal of Money Laundering Control Ð Vol. 8 No. 1
Bank Secrecy in Australia: Terrorism Legislation as
the New Exception to the Tournier Rule
Paul Latimer
INTRODUCTION
`Stop terrorising our own citizens with the Patriot
Act. And while you're at it, read 1984 by George
Orwell and stop naming things in ways that
remind us of totalitarian dictators.'
1
A pillar of the banker/customer relationship at
common law is the bank's duty of secrecy Ð to
respect and to protect the con®dence of the customer.
This is subject to exceptions such as disclosure under
compulsion by law and the bank's public duty to dis-
close in certain circumstances. Disclosure in Australia
under compulsion of law includes disclosure to
many law enforcement agencies in the areas of cash
transactions, corporate regulation, crime authorities
and taxation.
Like the heavy handed legislative response to 9/11
contained in the USA PATRIOT Act, Australia's
new attempts in legislation like the Suppression of
the Financing of Terrorism Act 2002 (Cth) to suppress
terrorist ®nancing by imposing disclosure obligations
on banks to detect and to disclose terrorism ®nancing
to law enforcement agencies, has introduced further
breaches of traditional bank/customer con®dence,
amounting to new Tournier exceptions.
This paper supports initiatives to counter criminal
activity such as politically motivated violence; trea-
son, treachery and foreign incursions; breach of
national security and organised crime so long as it is
consistent with basic democratic rights, but questions
the cost/bene®t of Australia's recent changes on prac-
tical grounds and on civil liberties grounds. Earlier
versions of bank disclosure laws in the USA did not
identify the funding for 9/11 and have had limited
eect on the `war on drugs'. It is said that two-thirds
of the world's population does not even have access
to a conventional bank account, so the increasing
responsibility being imposed on banks will miss
two-thirds of its target. This paper submits that the
partnership between law enforcement and banks
may not be the way to deal with the risks presented
by politically motivated crime. New laws being
easier to make than to unmake, are these the kinds of
laws that Australians want on the statute book long
after the war on terror is over?
Australia's experience of terror
Australia's experience of modern terrorism includes
the bombing of the Sydney Hilton Hotel in 1978,
2
the ten Australian deaths among the 3,000 victims
in the World Trade Center in New York on 11th
September, 2001 (hereafter called 9/11), and the 88
Australian deaths among 202 dead at Paddy's Bar in
Bali on 12th October, 2002.
Australia has responded to perceived terror threats
with strong new anti-terrorism laws, which have
now redrawn the balance between the rights of indi-
viduals and the rights of the community. The trade-
o is said to involve a small number of individuals
losing some of their liberty (such as bank customers
allegedly with terrorist connections losing bank con®-
dentiality) to protect a large number of individuals
from the possibility of injury or death in a terror
attack.
The new legislation targets terrorism, de®ned in
dictionaries as:
`the use, or threat of use, of violence by an indi-
vidual or a group, whether acting for or in
opposition to established authority, when such
action is designed to create extreme anxiety
and/or fear-inducing eects in a target group
larger than the immediate victims with the pur-
pose of coercing that group into acceding to . . .
political [etc] demands.'
3
`the use of terrorising methods, especially the
use of violence to achieve political ends ...the
state of fear and submission so produced.'
4
If these de®nitions make identifying terrorism di-
cult, the Macquarie Thesaurus gives as a synonym for
`terrorist' both a `violent person' and a `political
idealist'.
5
One would not want current anti-terrorism
legislation to disarm `political idealists' (with dispro-
portionate numbers of lawyers rising against the
then legal system) and their supporters over the centu-
ries such as the leaders of the Irish Easter Rising in
Page 56
Journalof Money Laundering Control
Vol.8, No. 1, 2004, pp. 56± 65
#HenryStewart Publications
ISSN1368-5201
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