Adapting the Qualifications to the Banker’s Common Law Duty of Confidentiality to Fight Transnational Crime

The banker's common law contractual duty of confidentiality to clients has been well established for over 86 years. The four qualifications to the duty of confidentiality were crafted in 1924 in Tournier's Case when crime was viewed as a local phenomenon. The question arises as to whether and how the qualifications have been adapted to permit international cooperation to deal with transnational crimes. The legislature in Australia and elsewhere has significantly expanded the ability of foreign law enforcement agencies and regulators to obtain domestic confidential bank documents. The courts have issued conflicting decisions regarding the scope of the public duty qualification, albeit occasionally authorising banks to disclose confidential information to foreign parties. Faced with inadequate legislative and judicial guidance, banks have drafted new standard form contracts permitting the disclosure of confidential information to foreign authorities without the knowledge of their customers or local authorities. There is a compelling need to codify the qualifications in a statutory instrument so as to deal with the legal uncertainties arising from Tournier's Case