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

Doron Goldbarsht (Department of Law, Macquarie University, Sydney, Australia)

Journal of Money Laundering Control

ISSN: 1368-5201

Article publication date: 9 April 2020

Issue publication date: 25 October 2020

419

Abstract

Purpose

This paper aims to explore the ways in which the international standards in the field of anti-money laundering (AML) and counter-terrorist financing (CTF) have reshaped regulatory regimes in a globalised world.

Design/methodology/approach

This paper deconstructs the origins and development of international standards in the field of AML and 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 aspect analyses a unique and comprehensive table reproduced below, that indicates Australia’s compliance with all the FATF recommendations over more than a decade with full alternation to FATF’s revisions of its recommendations.

Findings

This paper demonstrates that an understanding of the influence of the FATF norms can shed light on the departure from regular lawmaking processes and emerging forms of international governance. The conclusion suggests that tranche II is coming and Australia will amend it in domestic regime to comply with the international standard, applying the AML/CTF regime to the legal profession and thus interfering with legal professional privilege. The question is not if but when.

Originality/value

This paper fills 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 that does not yet comply fully with AML and CTF international standard. This approach differs significantly from that of other literature in the field, which deals comprehensively with the theoretical foundations of legal professional privilege, as well as its practicalities and limitations, without considering the influence of the international non-binding norms.

Keywords

Acknowledgements

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.

Citation

Goldbarsht, D. (2020), "Reverse engineering legal professional privilege in a globalising world – the Australian case", Journal of Money Laundering Control, Vol. 23 No. 3, pp. 677-690. https://doi.org/10.1108/JMLC-02-2020-0011

Publisher

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Emerald Publishing Limited

Copyright © 2020, Emerald Publishing Limited

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