Australian Financial Regulators Treatment Of Crypto-Assets

In the wake of the drawn out cryptocurrency market downturn, increased regulation of the sector seems inevitable. With nearly one million Australians transacting in cryptocurrencies last year, there have been widespread calls to enact additional protections for retail investors.

This table outlines key regulatory developments from Australian financial regulators on possible treatment of crypto-assets.

The key priorities for regulators appear to be the protection of consumers, maintenance of a fair and efficient financial system (including in respect of crypto-assets), and the promotion of innovation and foreign investment in Australia. Accordingly, the Financial Services Minister, Stephen Jones, has recently suggested that the new government will be reviewing crypto regulation as part of the larger digital payments system overhaul.

The key challenges for regulators will be delivering on these contrasting and somewhat competing objectives. The existing framework for financial markets is unlikely to translate well into crypto exchanges.  A more tailored approach will be necessary in order to deliver on both the consumer protection and competition aims.

The Council of Financial Regulators (comprised of the regulators in the table above, except ACCC) has explicitly advised banks against de-banking the crypto space and recognised the importance of a robust regulatory framework for this market. Further, in its first interim report on financial services legislation reform, the Australian Law Reform Commission briefly recognised cryptocurrencies as a new market in Australia. 

With more Australians exposed to this volatile sector than ever before, there is no doubt that crypto-assets are now part of the mainstream financial system (and perhaps less uncorrelated as was once thought), and many organisations see benefits in applying more traditional regulatory supervision to this asset class.

The last few months of crypto volatility has been instructive – showing that market risks are real and cannot be ignored.

Copyright 2022 K & L Gates
National Law Review, Volume XII, Number 196

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