Regulatory approaches to digital currencies have been considered in some detail in Australia in recent years. A Senate committee completed its inquiry into this issue in 2015, providing an overview of existing legislation and the views of relevant agencies, considering risks and opportunities arising from the advent of digital currencies, and recommending several changes as well as ongoing monitoring and research. At that time, the Australian Taxation Office had already produced several public rulings regarding different aspects of the tax treatment of digital currencies, holding that transactions involving such currencies should be treated akin to barter arrangements for the purposes of income tax. In line with the Senate committee’s recommendations, provisions in the goods and services tax legislation were subsequently amended to avoid a double taxation effect with regard to digital currency transactions. Guidance from the ATO also addresses the capital gains tax and fringe benefit tax consequences of utilizing digital currencies.
The Senate committee also recommended that digital currency exchange businesses be brought under the anti-money laundering and counterterrorism financing (AML/CTF) legislation. Changes to this legislation were subsequently enacted in 2017, with the effect that such businesses will now need to register with the relevant regulatory body, implement an AML/CTF program, maintain certain records, and report suspicious transactions.
Other areas covered by the committee’s report included financial regulation and consumer protection, and payments system regulation. The Australian Securities and Investments Commission has published guidance on its website regarding the risks of investing in digital currencies. This includes the fact that these investments are generally not regulated, as they are not considered to be financial products under the relevant legislation.
Australia’s consumer protection agency reported that it received a large number of consumer complaints in 2017 involving cryptocurrency scams.
I. Parliamentary Inquiry into Digital Currencies
In August 2015, the Australian Parliament’s Senate Economic References Committee published a report titled Digital Currency – Game Changer or Bit Player, following the completion of an inquiry into “how to develop an effective regulatory system for digital currency, the potential impact of digital currency technology on the Australian economy, and how Australia can take advantage of digital currency technology.” The inquiry involved receiving submissions and holding public hearings, and a delegation traveled to Canada and Singapore to discuss matters related to digital currency with relevant government officials. The Committee’s report noted that
like Australia, Canada also treats digital currencies, such as Bitcoin, as commodities, and transactions using digital currencies as barter transactions. In this context, committee members were able to exchange views on the regulatory risks related to digital currencies particularly given the rapid rate of changing technology.
A. Discussion and Recommendations
The Senate Committee’s report provided an explanation of digital currencies, including referencing a 2014 report by the Financial Action Task Force (FATF), and described Australia’s regulatory framework as it existed at the time. It also discussed risks and opportunities associated with digital currencies and made several recommendations for addressing gaps or other issues in the regulatory framework.
1. Risks and Opportunities
Chapter 3 of the Committee’s report discusses the opportunities and risks related to the advent of digital currencies. It particularly refers to findings of the European Securities and Markets Authority and the European Banking Authority, which each cited the lower transaction costs and the speed of transacting with digital currencies as being key attractions for users. However, the Committee noted that, given Australia’s existing payment systems, which are “overwhelmingly digital in nature,” digital currencies “do not offer much more additional capability.”
The distributed ledger technology used by digital currencies such as Bitcoin was noted as being “unique and genuinely new,” and worth considering in the context of improving Australia’s payment system in the future. There was also the potential for digital currencies to contribute to the international remittance market. However, the Reserve Bank of Australia (RBA) explained that existing improvement work in this area may lessen this potential, particularly in light of the price volatility of digital currencies.
In terms of risks, the Committee noted that there were concerns regarding noncompliance with taxation; potential risks for financial stability or the Australian economy should there be a significant increase in the use of digital currencies; risks to consumers due to inherent price volatility; the pseudo-anonymity of digital currencies, which may make it difficult for law enforcement to determine the true owners, and mean that digital currencies can be used in criminal activities; risks arising from the potential for hacking; and the potential for scams.
2. Tax Treatment of Digital Currencies
At the time the Committee’s report was published, several public rulings of the Australian Tax Office (ATO) had been finalized in December 2014. These expressed the view that transacting with digital currency was akin to a barter arrangement. The rulings, discussed further in Part II(A) below, covered various potential tax implications of such transactions, including capital gains tax, goods and services tax (GST), income tax, and fringe benefits tax.
Chapter 4 of the Committee’s report considered in some detail the tax treatment of digital currencies, with the Committee concluding that “the most immediate concern for Australian digital currency businesses is the current GST treatment of digital currencies.” The Committee recommended that digital currency be treated as money for the purposes of GST, in order to avoid a double taxation effect. It also noted various concerns among submitters regarding other taxation issues, and recommended that there be further examination of the appropriate tax treatment of digital currencies, particularly in relation to income tax and fringe benefits tax.
3. Financial Regulation and Consumer Protection
With regard to financial regulation and consumer protection matters arising from digital currencies, the report states that the RBA “considers digital currencies are currently in limited use and do not yet raise any significant concerns with respect to competition, efficiency or risk to the financial system; and are not currently regulated by the RBA or subject to regulatory oversight.” However, the RBA indicated that it “would be assessing whether the current regulatory framework could accommodate alternative mediums of exchange such as digital currencies.”
The report also set out the view of the Australian Securities and Investments Commission (ASIC) that digital currencies “do not fall within the legal definition of ‘financial product’ under the Corporations Act 2001 (Corporations Act) or the Australian Securities and Investments Commission Act 2001 (ASIC Act).” The Committee noted the existing warning to consumers on ASIC’s MoneySmart website, discussed further in Part II(B) below, which states that virtual currencies are not regulated and have less safeguards, values can fluctuate wildly, a person’s money can be stolen, and that they are popular with criminals.
The Committee noted that ASIC’s approach to digital currencies had been described in a November 2014 report by its oversight committee, the Parliamentary Joint Committee on Corporations and Financial Services. That report stated that ASIC was monitoring developments, considering how legislation it administers might apply, and consulting other Australian regulators (including financial regulators and law enforcement agencies).
The Committee expressed that, although ASIC does not consider digital currencies to be currency or money for the purposes of the ASIC Act or Corporations Act, “the general consumer protection provisions of the Competition and Consumer Act 2010 apply to digital currencies.” This Act is administered by the Australian Competition and Consumer Commission (ACCC), which the Committee noted does not include warnings about digital currencies on its own website dealing with consumer protection.
Chapter 5 of the report then discussed whether digital currency should be treated as a financial product for the purposes of the Corporations Act and ASIC Act, as well as how digital currency payments fit within the current payments system regulations. ASIC advised the Committee that extending the definition of financial products to include digital currencies “would not be straightforward as the decentralised framework means that the normal obligations on product issuers cannot be imposed.” In addition, a number of industry participants, including overseas entities, may be required to obtain relevant Australian licenses as they would be providing financial products, which may cause difficulties to digital currency businesses and to ASIC. ASIC did note that some digital currency businesses offer facilities, such as non-cash payment facilities, that may already be considered financial products.
The Committee simply recommended that further research be conducted before any changes are made.
4. Payments System Regulation
At the time of publication of the Committee’s report, the government’s Financial System Inquiry (FSI) had been completed and the Treasury was conducting a consultation process on the resulting recommendations. The FSI report, released in December 2014, had found that digital currencies were not being widely used in Australia but that their use could expand in the future. Therefore, “it will be important that payments system regulation is able to accommodate them.” The FSI report recommended that the legislation be reviewed to ensure that “alternative mediums of exchange can be regulated . . . if a public interest case arises.”
The Committee noted the findings of the FSI report, including with regard to the possibility of graduated regulation of payment facilities “to enable market entry and ensure regulation is targeted where it is most needed,” and making the existing ePayments Code mandatory. The Committee’s report also set out different views regarding industry self-regulation, a “wait-and-see” approach to regulation by relevant agencies, and the need for further information.
The Committee subsequently recommended that the government establish a Digital Economy Taskforce to gather further information so that regulators can monitor the situation and determine whether it may be appropriate to regulate certain digital currency businesses.
5. Anti-Money Laundering and Counterterrorism Financing Legislation
With respect to law enforcement approaches to digital currencies, the Committee’s report stated that digital currencies were not currently covered by the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) (AML/CTF Act), although that Act does recognize “e-currency,” which is defined as being backed, either directly or indirectly, by precious metal, bullion, or “a thing of a kind prescribed by the AML/CTF Rules.” The report stated that no rules had been issued that would bring digital currencies under the definition of e-currency in the AML/CTF Act. However, it goes on to indicate that the existing AML/CTF regime does enable limited oversight of convertible digital currencies, since the transactions “will generally intersect with banking or remittance services which are regulated under the AML/CTF regime.”
At the time of the Committee’s report, the government was undertaking a review of the AML/CTF Act and, as part of that review, the Attorney-General’s Department stated that “[a] number of options to address the money laundering and terrorism financing issues created by the emergence of digital currency systems are being considered.” In addition, a different parliamentary committee was also in the process of conducting an inquiry into financial-related crime and had received evidence relating to Bitcoin in that context.
Chapter 6 of the Committee’s report examined whether digital currencies should be brought within the AML/CTF regime. A spokesman for the Attorney-General’s Department noted that “one of the difficulties with digital currencies is peer-to-peer transfers as it means transactions using digital currencies can be made directly to people anywhere in the world,” which creates challenges when working out how to regulate digital currencies. An additional challenge was finding a balance between trying to mitigate risks through regulation while allowing positive aspects of the industry to develop. The Committee was also advised that a change to the AML/CTF Act would be needed, not just the regulations.
The Committee strongly supported applying the AML/CTF regime to digital currency exchanges, “noting that similar steps have been taken in Canada, the UK and Singapore.” It recommended that the statutory review being conducted by the Attorney-General’s Department consider this matter.
B. Government’s Response
The government responded to the Committee’s recommendations in May 2016. Prior to this, in a March 2016 statement on financial technology, Backing Australian FinTech, the government had committed to reforming the GST treatment of digital currencies in order to address the double-taxation issue. The government also noted the recommendation regarding further examination of the tax treatment of digital currencies, stating that the ATO was continuing to monitor developments.
With regard to establishing a task force to gather further information related to digital currencies in order to assist regulators, the government stated that its already established FinTech Advisory Group would be the appropriate mechanism for such work. The government also indicated its support for an existing industry association to continue work on improving industry standards, including via the development of a self-regulatory model.
The government agreed with the Committee’s recommendation regarding extending the AML/CTF framework to cover digital currency exchanges, and noted existing work in that area, as well as developments in other countries.
The current rules in these different regulatory areas, which include recent developments related to the Committee’s recommendations, are set out in Part II, below.
II. Current Regulatory Framework
As noted above, the ATO finalized various rulings relating to the application of tax laws to Bitcoin and other cryptocurrencies in December 2014. It has subsequently published a general guidance document on the tax treatment of virtual currencies.
According to the rulings and guidance, transacting with cryptocurrencies is “akin to a barter arrangement, with similar tax consequences.” This is because, in the view of the ATO, such currencies are “neither money nor a foreign currency.” Individuals who engage in cryptocurrency transactions are advised to keep records of the date of transactions, the amount in Australian dollars (“which can be taken from a reputable online exchange”), what the transaction was for, and who the other party was (“even if it’s just their bitcoin address”).
In addition, cryptocurrencies may be considered assets for capital gains tax purposes, with the guidance stating: “Where you use bitcoin to purchase goods or services for personal use or consumption, any capital gain or loss from disposal of the bitcoin will be disregarded (as a personal use asset) provided the cost of the bitcoin is $10,000 or less.”
With regard to business transactions, the ATO guidance states that the Australian dollar value of bitcoins (being the fair market value) received for goods and services must be recorded as part of ordinary income, in the same way as receiving non-cash consideration under a barter transaction. A business that purchases items using bitcoin is “entitled to a deduction based on the arm’s length value of the item acquired.” GST is also payable and is calculated on the market value of the goods or services, which is “ordinarily equal to the fair market value of the bitcoin at the time of the transaction.”
When a business disposes of bitcoin, there may be capital gains tax consequences. Furthermore, if a business gives bitcoin to an employee this may be considered either a fringe benefit (if there is a valid salary sacrifice arrangement in order to receive the bitcoin) or normal salary and wages.
If an entity is in the business of mining bitcoin, or buying and selling bitcoin as an exchange service, any income derived must be included in its assessable income, and any expenses incurred may be deducted.
The ATO has also published separate guidance on the application of GST with respect to transactions involving digital currency. A previous ruling regarding GST was withdrawn in December 2017 following the passage of amendments to A New Tax System (Goods and Service Tax) Act 1999 and associated regulations, which apply to transactions after July 1, 2017. Under the amendments, sales and purchases of digital currency are not subject to GST. If a person is carrying on a business in relation to digital currency, or accepting digital currency as a payment as part of a business, then there are GST consequences. The changes were aimed at removing “double taxation” of digital currencies under the GST system, as recommended by the Senate Committee.
According to news reports from January 2018, the ATO is consulting with tax experts “to help it identify and track cryptocurrency transactions and ensure all taxes are being paid.”
B. Financial Regulation and Consumer Protection
As noted above, ASIC does not consider cryptocurrencies to be financial products under the ASIC Act or Corporations Act. ASIC’s MoneySmart website provides information on virtual currencies, including how they work and different types, and sets out various risks associated with buying, trading, or investing in such currencies. This includes statements that “[t]he exchange platforms on which you buy and sell digital currencies are not regulated, so if the platform fails or is hacked, you will not be protected and will have no legal recourse”; [a] cryptocurrency is not guaranteed by any bank or government” and “[i]nvesting in virtual currencies is considered highly speculative, as values can fluctuate significantly over short periods of time”; and “[i]f hackers steal your digital currency you have little hope of getting it back.”
A separate page provides information about initial coin offerings (ICO), which ASIC calls a “high-risk speculative investment.” It advises investors to check whether an ICO issuer is a company registered in Australia and whether it is a licensed financial services provider, noting that “[i]f the company is not registered and does not have a licence in Australia you will have little protection if things go wrong. But even if the company is registered in Australia, or has a licence, there are risks associated with investing in ICOs.”
In February 2018, ABC News reported that more than 1,200 Australians had made complaints to the ACCC about cryptocurrency scams in 2017, with losses totaling more than AU$1.2 million. The ASIC commissioner was quoted as saying that “[i]t’s been quite well documented that some of these products are scams, so please don’t invest unless you’re prepared to lose some or all of your money.”
C. Anti-Money Laundering and Counterterrorism Financing Legislation
The government introduced a bill in Parliament in August 2017 in order bring digital currency exchange providers under the AML/CTF regulatory regime, as recommended by the Senate committee referred to above. The bill was enacted in December 2017 and the relevant provisions came into force on April 3, 2018.
The bill was developed following the release of a public discussion document and completion of a consultation process by the Attorney-General’s Department, as part of its statutory review of the AML/CTF Act. Information regarding the bill in the Australian Parliamentary Library’s Bills Digest publication also states that
AML/CTF regulation of digital currency businesses was also recommended by the Senate Economics References Committee in August 2015 and the Productivity Commission in September 2015 in the context of broader reviews related to digital currency and business set up, transfer and closure respectively. Regulating digital currency exchange providers is consistent with FATF’s guidance on a risk-based approach to digital currencies.
Under the legislation, digital currency exchanges will be required to enroll in a register maintained by AUSTRAC (the Australian Transaction Reports and Analysis Centre) and implement an AML/CTF program “to mitigate the risks of money laundering as well as identify and verify the identity of their customers.” They will also be required to report suspicious transactions and maintain certain records.
The legislation contains the following definition of “digital currency,” replacing the definition of “e-currency”:
digital currency means:
(a) a digital representation of value that:
(i) functions as a medium of exchange, a store of economic value, or a unit of account; and
(ii) is not issued by or under the authority of a government body; and
(iii) is interchangeable with money (including through the crediting of an account) and may be used as consideration for the supply of goods or services; and
(iv) is generally available to members of the public without any restriction on its use as consideration; or
(b) a means of exchange or digital process or crediting declared to be digital currency by the AML/CTF Rules;
but does not include any right or thing that, under the AML/CTF Rules, is taken not to be digital currency for the purposes of this Act.
Although the definition of “money” in the AML/CTF included e-currency, it was not amended to include digital currency; digital currency is treated separately and there were “several consequential amendments to amend existing references to money to instead refer to money or digital currency.”
AUSTRAC is currently developing changes to the AML/CTF Rules to implement amendments to the AML/CTF Act. A new chapter will cover registration on the Digital Currency Register, the renewal of registration, suspension of registration, cancellation of registration, review of reviewable decisions, updating and correcting of information, the correction of entries on the register, and the publication of information. Amendments have also been drafted for two other chapters with regard to suspicious-matter reporting and “regarding threshold transaction reporting of digital currency exchange transactions (to include additional reporting identifiers specifically relevant to digital currency exchange providers).”
Chief, Foreign, Comparative, and International Law Division I
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 Id. at 3–5; Financial Action Task Force, Virtual Currencies: Key Definitions and Potential AML/CFT Risks (June 2014), http://www.fatf-gafi.org/media/fatf/documents/reports/Virtual-currency-key-definitions-and-potential-aml-cft-risks.pdf, archived at https://perma.cc/MB2J-K36K.
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 Id. at 17.
 Id. at 18–19.
 Id. at 20–25.
 Id. at 5–7.
 Id. at 31.
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 Senate Economic References Committee, supra note 1, at 58.
 Id. at 60.
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Last Updated: 06/15/2018