In October 2021, the Senate Committee for Australia as a Technology and Financial Centre released its much-awaited recommendations for how cryptocurrency should be regulated. The 168-page final report boils down to 12 recommendations aimed at striking the right balance between creating legitimacy without stifling innovation.
This is a landmark report that demonstrates Australia’s clear efforts to put itself at the forefront of crypto investment globally. The chair of the committee, Senator Andrew Bragg, believes that “Australia can be a leader in digital assets” and is confident that it can particularly “be competitive with Singapore, the UK and the US.”
Four key recommendations
First, the introduction of a range of new crypto-specific licenses and regulations. For too long, regulators around the world have been trying to put square pegs (cryptocurrency) into round holes (traditional financial regulation). This approach underestimates the fundamental differences that exist as well as the potential that digital assets have to transform the world. This report acknowledges crypto’s potential and calls for a range of bespoke cryptocurrency licenses in Australia. It recommends a specific market licensing regime for digital exchanges as well as a bespoke custody regime for digital assets. Details will still need to be fleshed out but if we get these frameworks right, then this will create the legitimacy that the sector needs to take off into the mainstream.
Second, the introduction of a decentralized autonomous organization (DAO) entity type into Australian corporate law. This recommendation is a very big deal, as it shows that the Australian government is open to decentralized finance (DeFi) as well as crypto innovation. Wyoming is the only region I have heard of that has something like this in place, so this could put Australia on the front foot. If approved, DAOs could provide a unique utility that may bring the Australian economy a decade ahead into a decentralized future. However, this will also be the hardest thing for the Committee to get approved, as changes to the Corporations Act are infamously rare in Australia. If anyone can do it, it’s Senator Bragg though.
Third, improved tax rules for crypto-to-crypto transactions. Recent Finder research shows that over 17% of Australians own cryptocurrency — the third-highest rate of adoption in the world. However, this growing group has had to grapple with tax rules that are confusing at best. Historically, crypto-to-crypto transfers have been considered a capital gain by the Australian Tax Office. The new recommendation calls for tax only when there has been “a clearly definable capital gain or loss.” Again, the devil will be in the detail on this one but active Australian crypto users could be the real winners.
Fourth, new tax incentives to encourage green crypto mining. The Committee recommends a 10% company tax discount for crypto mining businesses that use renewable energy. This looks like a smart move to support two high-growth Australian industries: renewable energy and cryptocurrency. This will be especially important as the Committee tries to get these recommendations signed off against a backdrop of COP26 and rising concerns about climate change.
Three tough issues
- Timelines for turning recommendations into law.Right now, these are all just recommendations, and are worth as much as the political will that exists to enact them. As with other countries, politics in Australia moves slowly and this will be no different. Senator Andrew Bragg is bullish that he can get all the recommendations passed in 12 months and I back him to get it done. His cause could also be supported by a growing view that crypto innovation could be a vote-winner with young Australians in a looming federal election, as nearly a third of Generation Z already own cryptocurrency.
- Implications for crypto businesses during the pre-reform period.If it takes a year to introduce new laws then there are still questions about what crypto businesses can do in the meantime. Many submissions called for a “safe harbor” against regulation until rules had been finalized but this was not explicitly recommended by the Committee. However, the direction of travel has been set and there is clear support for crypto innovation and an acknowledgment that new rules and licenses are needed. I would be surprised if we saw much in the way of regulatory action until then.
- Specifics for the licensing and tax proposals.Many of these recommendations were light on detail and it looks like the Australian Treasury will now lead on these matters. The industry will be very interested to know what the requirements for being a custodian or digital exchange will be, particularly when it comes to capital requirements. If there’s too much regulatory burden, then businesses will move offshore. Likewise, consumers will need more clarity on what a “clearly definable capital gain or loss” is for tax purposes. In many ways, the work starts now.
Learnings for governments around the world
The crypto industry is ready to talk policy. It’s fair to say that this Select Committee was inundated with engagement from crypto businesses, academics, peak bodies and regulators. More than 100 written submissions contributed and there were three full days of public hearings. It’s not often that an industry is asking for more regulation but that is what is happening here. The crypto industry around the world wants clarity and is ready to have a conversation about policy.
Broad reviews are more effective than siloed approaches. One key reason that this consultation had so much engagement was that it looked at the digital asset industry holistically rather than from one angle only. A problem we’re seeing around the world is regulators interested in looking at crypto assets from their specific regulatory view, but broad innovation shouldn’t be assessed through such a narrow lens. This consultation managed to look at the industry holistically while still getting into the specific issues. I welcome more reviews like it around the world.
Bespoke digital asset policy approaches will be needed. Digital assets have hit critical velocity and the revolution can no longer be ignored. Piecemeal changes to legacy financial services policy will not work. We need policymakers around the world to work together to create bespoke policies that are fit-for-purpose. Coinbase captures this well in pillar one of its Digital Asset Policy Proposal (DAPP). The DAPP calls for “a new framework for how we regulate digital assets” that “will ensure that innovation can occur in ways that are not hampered by the difficulty of transitioning from our legacy market structure.” These recommendations in Australia are an attempt at doing exactly that which many can learn from.
What is clear is that the world is changing. This Senate Committee in Australia should be applauded for taking a holistic approach and recommending bespoke policy instruments. It’s time for policymakers around the world to follow suit and take a broad look at their approach to digital assets.