Reverse engineering legal professional privilege in a globalising world – the Australian case

Pages677-690
DOIhttps://doi.org/10.1108/JMLC-02-2020-0011
Date10 April 2020
Published date10 April 2020
AuthorDoron Goldbarsht
Subject MatterAccounting & Finance,Financial risk/company failure,Financial compliance/regulation,Financial crime
Reverse engineering legal
professional privilege in a
globalising world the
Australian case
Doron Goldbarsht
Department of Law, Macquarie University, Sydney, Australia
Abstract
Purpose This paper aims to explore the ways in which the internationalstandards in the eld of anti-money
laundering (AML) and counter-terroristnancing (CTF) have reshaped regulatory regimes in a globalised world.
Design/methodology/approach This paper deconstructs the origins and development of
international standards in the eld of AMLand CTF dealing with longstanding legal professional privilege.
This paper adopts both qualitative and quantitative research methodologies. The qualitative aspect
comprises a literature review of sources, including scholarly works, Financial Action Task Force (FATF)
recommendations,reports and domestic laws. The quantitative aspectanalyses a unique and comprehensive
table reproducedbelow, that indicates Australias compliance withall the FATF recommendations over more
than a decadewith full alternation to FATFs revisions of its recommendations.
Findings This paper demonstrates that an understanding of the inuence of the FATF norms can shed
light on the departure from regular lawmaking processesand emerging forms of international governance.
The conclusion suggeststhat tranche II is coming and Australia will amend it in domestic regime to comply
with the international standard, applying the AML/CTF regime to thelegal profession and thus interfering
with legalprofessional privilege. The question is notif but when.
Originality/value This paper lls the gaps in the existing literature by contemplating the future of legal
professional privilege globally and in Australia, which provides a case study of a regime tha td oes not yet comply
fully with AML and CTF international standard. This approach differs signicantly from that of other literature in
the eld, which deals comprehensively with the theoretical foundations of legal professional privilege, as well as its
practicalities and limitations, without considering the inuence of the international non-binding norms.
Keywords AML, FATF, CTF, Legal professional privilege, TRANCHE II
Paper type Research paper
Legal professional privilege is fundamental importance to the protection and preservation of the
right, dignity and equality of the ordinary citizen under the law (Bentham, 1827a;Pirsig and
Kirwin, 1984),Jeremy Bentham
Introduction
The Financial Action Task Force (FATF) is an independent inter-governmental body that
develops and promotes policies to protect the global nancial system against money
laundering, terrorist nancing and the nancing of weapons of mass destruction. Even
The author wishes to thank Professor Jane Winn, Associate Professor Richard Wu and Associate
Professor Andrew Godwin for their constructive comments on an earlier version of this paper which
was presented at the International Conference on Global Regulatory Governance held between July 4-
6 2019 at the Chinese University of Hong Kong.
Legal
professional
privilege
677
Journalof Money Laundering
Control
Vol.23 No. 3, 2020
pp. 677-690
© Emerald Publishing Limited
1368-5201
DOI 10.1108/JMLC-02-2020-0011
The current issue and full text archive of this journal is available on Emerald Insight at:
https://www.emerald.com/insight/1368-5201.htm

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