Anti-money Laundering and Counter-terrorism Financing Law and Policy

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The book provides one of the first accounts of AML/CFT legislation in Australia, sets the international policy context, and outlines key international legal obligations. To minimise the negative impact on personal freedoms, it proposes a reading of Australian provisions in line with international caselaw. Expanding her analysis on the international level, the author offers an appraisal of the measures taken, both in terms of criminal policy and cost for civil society. She argues that the development of soft law and the increased powers given to law enforcement agencies, which sub-contract surveillance to the private sector, further erode the legitimacy of State action and the rule of law, and ultimately the democracy the laws were meant to protect.

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Biographical Note
Anne Imobersteg Harvey worked for several years for the Swiss Ministry of Justice in the development of AML legislation. She was awarded a PhD (2015) by the University of Western Australia for her thesis on organised crime and terrorism.
Table of contents
List of Tables
Abbreviations and Acronyms
1 Introduction
 1.1  From Organised Crime to Money Laundering
 1.2 From Anti-money Laundering to Counter-terrorism Financing
 1.3 Protecting Fundamental Rights
2  aml / ctf Legislation in the International Context
 2.1 The Problem
  2.1.1  What is Organised Crime?
 2.2 The Strategies
  2.2.1  Depriving Criminal Organisation of the Profit of Their Crimes
  2.2.2  Making it an Offence to Participation in a Criminal Organisation
 2.3 The Response: Towards Comprehensive aml Legislation
  2.3.1  The 1970s
  2.3.2  The 1980s
  2.3.3  The 1990s
  2.3.4  The 2000s
  2.3.5  The 2010s
  2.3.6  Two Different Approaches
 2.4 The International Players
  2.4.1  The G-7, the unsc and the fatf
  2.4.2  The Financial Intelligence Units (FIU) and the Egmont Group
  2.4.3  The Private Sector and the Wolfsberg Group
 2.5 Confiscation and Assets Sharing
  2.5.1  Confiscation
  2.5.2  Assets Sharing
 2.6 Conclusion
3  A New Crime Type: Defining Money Laundering
 3.1 Introduction
 3.2 Defining Money Laundering
  3.2.1  The Predicate Offence
  3.2.2  Money Laundering, an Offence sui generis
 3.3 The Fault Elements
  3.3.1  Knowledge vs Belief
  3.3.2  Value of the Assets
  3.3.3  Knowledge vs Recklessness and Negligence
  3.3.4  Negligence
 3.4 The Physical Elements
  3.4.1  Possession vs no. Intent to Launder Money
  3.4.2  The Risk Factor as a Physical Element of the Offence
  3.4.3  The Subsidiary Offence
 3.5 Corporate Liability
 3.6 Penalties
  3.6.1  Legal Exemptions
 3.7 Conclusion
4  Money Laundering Post-9/11: Defining Terrorism Financing
 4.1 Introduction
 4.2 The fatf Special Recommendations on Terrorism Financing
  4.2.1  Introduction
  4.2.2  Difficulties in Implementing SR vi , vii , viii and ix
  4.2.3  Conclusion
 4.3 Defining a Terrorist Act
  4.3.1  Under the Nine Terrorism Conventions
  4.3.2  Under the uncft and the Code
 4.4 Defining Financing
  4.4.1  Financing Terrorism
  4.4.2  Financing a Terrorist
  4.4.3  Financing – Providing Support to – a Terrorist Organisation
  4.4.4  Under the Charter of the United Nations Act 1945
 4.5 Penalties
 4.6 Conclusion
  4.6.1  Contrasting Australia’s aml / ctf Legislation with International Treaties
  4.6.2  Contrasting aml Legislation with ctf Laws
5  The Proscription of Terrorist Organisations and the Implementation of ctf unscr s
 5.1 Introduction
 5.2 Proscription of Terrorist Organisations under the Code
  5.2.1 Terrorist Organisations
  5.2.2 Prescription Regime
 5.3 Proscription of Terrorist Organisations under cotuna
  5.3.1  unscr 1267
  5.3.2 Weapons of Mass Destruction
  5.3.3 North Korea
  5.3.4 Iran
  5.3.5 Requirements for Listing under cotuna
 5.4 Delisting and Review Procedures
  5.4.1 Under the Code
  5.4.2 Delisting under cotuna
  5.4.3 Lessons from Kadi and ompi/pmoi
 5.5 Effects of the Listings
 5.6 Conclusion
  5.6.1 Focus on Organisations
  5.6.2 Breadth of Legislation
  5.6.3 Restricted Judicial Review
  5.6.4 A Way Ahead
6 Appraising aml / ctf Legislation in the International Context
 6.1 Introduction
 6.2 Questioning the Rationale of the aml / ctf Apparatus
  6.2.1 From Carpet-bombing Legislation to Risk-based Supervision
  6.2.2 A Costly Machinery
  6.2.3 Terrorism Financing, a Type of Money Laundering?
  6.2.4 A Different Approach is Needed
  6.2.5 Beyond Crime Control
 6.3 Money Laundering and Terrorism Financing (Legislation) as a Threat to Democracy?
  6.3.1 The Influence of Soft Law in the Legislative Process
  6.3.2 A Different Type of Law Enforcement
 6.3.3Erosion of Criminal Law Principles
 6.4 What Democracy?
 Bibliography
 Index
Readership
Legal practitioners, law enforcement officials, policy makers and students (postgraduate, undergraduate) with interests in transnational and organised crime, terrorism, money laundering and the preventive measures applied, in Australia and internationally.
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