Impact on ethical obligations of legal practitioners One of the Law Council’s principal concerns is that, notwithstanding the apparent intention to preserve legal professional privilege (which is the client’s privilege, not that of the lawyer), the impact of the suspicious matter reporting and compulsory examination and notice obligations in the Bill will distort the fundamental duties of legal pr. [...] Thus, notwithstanding the additional cost of compliance for what are largely small businesses, and provided that there is explicit recognition in the Explanatory Memorandum to the Bill (EM) of the critical need to minimise cost and duplication during the course of development of the AML/CTF Rules (Rules) which will accompany the Act and form part of the AML/CTF regulatory regime, the Law Council d. [...] There are two main purposes of the amendment, the first of which is to extend the governance of the Act to professionals involved in the provision of designated services. [...] One of the major concerns of the profession is the impact of compliance costs on suburban, regional and remote practices, and inflationary pressure the reforms will have on the cost of legal services and access to justice. [...] The wording of the definitions of Designated Services in the Bill differs from the wording of Designated Services in the Consultation Papers36 and expands the extent of the activity caught by the definitions.
Authors
- Pages
- 68
- Published in
- Australia
Table of Contents
- About the Law Council of Australia 4
- Acknowledgements 5
- Summary 6
- Cost and risk 6
- Impact on ethical obligations of legal practitioners 7
- Application of the Bill to barristers 8
- Other low-risk services 8
- Other provisions of concern 8
- Recommendations 9
- Introduction 11
- The Law Council’s in-principle support for reform 11
- Guiding principles for reform 12
- Consultation and past submissions of the Law Council 13
- The Bill and the focus of this submission 13
- Background to the Act and role of FATF 13
- Background to the Bill and FATF review 15
- Risk concerning legal practitioners 19
- The legal profession in Australia and the systemic effect of the AML/CTF framework 22
- Demographics of the legal profession 22
- The cost of compliance 23
- Barristers 26
- Legal practitioners’ roles as fiduciaries and as officers of the Court 28
- Areas affecting fundamental duties of legal practitioners 32
- Comments on application of the Act to the profession 33
- Suspicious matter reporting: application of s 41 33
- Notices to produce 38
- Tipping off 41
- Termination of retainer 43
- Reverse onus of proof 43
- Amendment options 44
- Comments on Schedule 1: AML/CTF programs and business groups 45
- AML/CTF programs 45
- Business groups 48
- Comments on Schedule 2: Customer due diligence 48
- Simplified and enhanced CDD 48
- Pre-commencement customers 49
- Duplication of processes 50
- The auction problem in property transactions 50
- Reasonable grounds 51
- Identity of beneficial owner 51
- Comments on Schedule 3: Regulating additional high-risk services 52
- The need to clarify the scope of ‘assisting’ 54
- The scope and timing of court orders 55
- Remove and clarify archaic terms 55
- Exemption for mediators, arbitrators and alternative dispute resolution 55
- Exemption for community legal centres 56
- Exemption for custodial services 56
- Comments on Schedule 4: Legal professional privilege 57
- Inadequate protection of client legal privilege 59
- Comments on Schedule 5: Tipping off offence and disclosure of AUSTRAC information to foreign countries or agencies 60
- Comments on Schedule 9: Powers and definitions 61
- Compulsory examination powers 61
- Abrogation of the privilege against self-incrimination 61
- Strict liability offences—Schedule 9 64
- Comments on Schedule 10—Exemptions 67
- Exemptions ought to be in the Act 67
- Keep open notices: s 39B 67
- Comments on Schedule 12—Transitional provisions 68
- Consequential issues 68
- Guidance and rules 68
