Crypto Regulation in Australia

You wait ages for a bus, then several come along at the same time. The past week has seen three major developments in Australia regarding the regulation of cryptocurrencies, digital assets and the industry in which they operate.

First, there was the Final Report of the Senate Select Committee on Australia as a Technological and Financial Centre. Among other things, the Committee has recommended a specific regulatory framework for Digital Currency Exchanges, a formal custody regime for digital assets, a classification (or “token mapping exercise”) for the various types of digital assets, and a legal framework to recognize Decentralised Autonomous Organisations as a form or company structure.

Second, AUSTRAC issued a Statement on De-banking, that urges banks and financial institutions to take a case-by-case approach when reviewing potential risks associated with clients engaged in Blockchain and cryptocurrencies. Rather than applying a blanket ban or refusal to deal with Blockchain and crypto businesses, banks and other providers should exercise more discretion, and adopt workable and practical solutions to meet their risk management and KYC/AML obligations. Echoing the overarching theme of the Senate Select Committee, AUSTRAC recognises that de-banking crypto risks stifling innovation, and/or forcing crypto businesses to resort to less than ideal alternative service providers.

Third, ASIC released its Response to submissions made under the recent consultation on Crypto-assets as underlying assets for ETPs (aka Report 705 on CP 343). While there is some overlap with the scope and terms of reference of the Senate Select Committee, ASIC maintains its position that it does not want to be responsible for developing policy on regulating digital assets (that’s the role of Government); while at the same time stating in very clear terms how it believes cryptocurrencies should or shouldn’t be classified (and regulated). For example, ASIC did not accept the view of many respondents that crypto-assets which are not deemed financial products should be treated as commodities. In part, because there is no definition of “commodity” in the Corporations Act; but also because the discussion has been more about market operators, rather than the specific nature of the assets themselves.

Meanwhile, ASIC remains very prescriptive about the criteria for approving certain cryptocurrencies as the underlying assets for exchange traded products (ETPs) – including criteria which received push back from the industry as being too restrictive or inflexible. On the other hand, ASIC does appear to accept that if crypto-assets cannot be defined as financial products (or commodities), then a distinct category is required. This is the case that has often been put forward by the industry, namely the need to define instruments commonly known as utility tokens. To its credit, ASIC has made a fair stab at coming up with a workable definition of crypto-asset as:

“a digital representation of value or rights (including rights to property), the ownership of which is evidenced cryptographically and that is held and transferred electronically by:
(a) a type of distributed ledger technology; or
(b) another distributed cryptographically verifiable data structure.”

While the overall tone of these developments is encouraging, they still reveal a need for greater consistency (and inter-agency co-ordination), and the lack of a well-articulated policy on this fast-growing FinTech sector.

Next week: Is crypto finally going mainstream?

 

Blockchain Start-up Showcase

As part of the recent Australian Blockchain Week, YBF Ventures hosted a showcase of Blockchain start-ups – not a standard pitch event, but more an opportunity to hear how some teams are deploying Blockchain technology in their projects.

Here are the projects in order of presentation (links in the project names):

ProvenDB – developing immutable and tamper-proof document management, built on Hedera Hashgraph

BuildSort – a construction contract management solution to improve the industry supply chain and project management

Laava ID – product authentication via “smart fingerprints”

Verida – decentralized identity (with a focus on health records) – a user-centric solution focused on building user trust – resulting in hyper-personalisation

Cryptocate – crypto tax management service – with the growth in DeFi, there is a lack of data standardization or formal tax guidance on taxable events – e.g., how to handle crypto options?

Elbaite – a non-custody exchange using a “TraderTrust” verification system to support P2P transactions – platform confirms the exchange transaction on-chain, then the platform uses the transaction hash to release clients’ fiat funds from escrow – platform charges fees and commission

Sempo – a remittance service, with a particular focus on supporting migrant workers, the unbanked and refugees

Future CX – decentralized middle-ware development – e.g., data containers, NFTs, smart contracts – using a “proof of distribution” model

Luca+ – e-invoicing solution that integrates with major third-party accounting software

BC Gateways – using Blockchain to facilitate secure data transfer within the superannuation industry – recently acquired by IRESS – scaling from 10k transactions per day to 5m per annum

DayByDay – an asset management solution for the insurance industry

Get Paid in Bitcoin – a Bitcoin payroll and savings account

DLTX – a smart contract development vendor

Next week: Decay Music

Notes from Blockchain Week

Blockchain Australia, the national industry body, recently organised the first National Australian Blockchain Week – a mix of on-line and in-person events, hosted in Sydney and Melbourne. Overall, it was an impressive line up of speakers and topics, featuring key local figures and presenting some intriguing announcements from politicians, regulators and practitioners alike.

The recurring themes were: Regulation, Tax and Innovation.

Despite past pronouncements about adopting a light-touch regulatory regime when it comes to Blockchain technology, the absence of definite regulation risks stifling innovation and/or driving projects overseas to more receptive jurisdictions. (Irony of the week #1: contrast this with the early and positive regulatory engagement with Digital Currency Exchanges (DCE) and other market participants in Australia, not to mention previous progress in removing the absurd GST treatment on the purchase and sale of cryptocurrencies).

Now, the industry is (once again) asking policy makers: to clarify the law as it relates to decentralised protocols, digital assets and utility tokens; to streamline the confusing and over-complex tax system as it applies to DeFi: and to define a specific regulatory boundary (rather like the UK’s FCA perimeter) within which crypto assets need to be regulated. Sadly, the latter is extremely hard to acheive thanks to the very broad definition of “financial product” within the Australian Corporations Act.

Throughout the four days, there were several highlights: Senator Bragg’s keynote speech on driving the policy agenda to bring clarity to regulators and markets alike; a progress report on the National Blockchain Roadmap; tax and legal updates from Joni Pirovich and Michael Bacina; a showcase of local Blockchain start-up projects (more on that next week); and a couple of enterprise presentations on the ASX’s DLT replacement for CHESS and the Blockchain-based insurance project between the R3 consortium and Grow Super. But apart from a couple of other Blockchain-in-business sessions, there was a noticeable absence of corporates, major banks, traditional financial services and institutional investors.

There was a lot of commentary around the fact that many Blockchain businesses and crypto projects still find it challenging to access regular banking facilities in Australia (Irony of the week #2: Westpac’s windfall from the recent Coinbase IPO). There was also a lot of discussion about the need for investor education before crypto and digital assets can go “mainstream” – which I find surprising when plenty of people seem to be finding their way without any help from traditional financial advisors, and yet no-one is required to educate themselves before their money is put into compulsory superannuation or real estate assets. Even where crypto assets are being included in retail investor products, the allocation is very modest and is being transacted offshore (see Raiz’s 5% allocation via the US-based Gemini Trust). Why not use one of the several established and well-run exchanges, crypto funds and OTC providers here in Australia?

Regarding the potential offshore brain drain, much was made of the work that Singapore is doing to attract Blockchain and crypto businesses. But I think the focus on Singapore risks overstating the situation there, and overlooks what is actually happening (and could happen) in Australia. For example, while Singapore may have more favourable tax arrangements for new Blockchain projects, I understand that ordinary retail investors don’t have access to crypto funds (not even ETPs). The Singaporean issuance of digital assets via tokenisation has to be done via an SPV structure. And while many ICOs have been issued from Singapore, they could not be marketed to local investors. At least Australia has a robust DCE sector, e.g. Independent Reserve, BTC Markets, and Bit Trade (now part of Kraken); early on we saw some very successful retail products such as CoinJar; and the local industry continues to nurture innovative decentralisation projects – we just need to sort out those “policy settings”, and give more encouragement to local entrpreneuers and innovation. (Irony of the week #3 – when former ALP politician and self-styled crypto OG, Sam Dastyari, was asked if the private equity fund he works for was investing in Blockchain or crypto, there was a deafening silence…)

Finally, one of the main benefits of Blockchain Week has been to entice people out of hibernation, and to attend in-person events after months of lock-downs and restricted movement. It felt good to be back.

Next week: Blockchain Start-up Showcase