Australian Treasury proposes to regulate crypto exchanges, not tokens

The Australian government is taking significant steps toward regulating the digital asset sector, particularly at the level of cryptocurrency exchanges. A recently released “Regulating digital asset platforms” consultation paper, unveiled by the Australian Treasury on October 16, outlines plans to require cryptocurrency exchanges to obtain a financial services license from the local financial regulator. This move reflects a growing recognition of the need for regulatory oversight in the cryptocurrency space to protect consumers and encourage innovation.

The key focus of this regulatory framework is to oversee cryptocurrency exchanges and service providers, rather than individual cryptocurrencies or tokens. Importantly, the paper suggests regulating these exchanges under existing financial services laws rather than crafting new, crypto-specific regulations.

Under the proposed rules, any cryptocurrency exchange with assets exceeding $3.2 million or serving customers with holdings over $946 would be mandated to acquire a license from the Australian Securities and Investment Commission (ASIC). This approach aims to strike a balance between ensuring financial security and fostering cryptocurrency innovation.

Reactions to the proposal within the Australian crypto community have been mixed. Adam Percy, the general counsel for the Australian crypto exchange Swyftx, has praised the proposal, describing it as “thoughtful.” He agrees that the primary objective should be to provide cryptocurrency users with access to blockchain technology while offering them appropriate protections and maintaining space for innovation.

However, Jonathon Miller, the Director of Kraken Australia, expressed disappointment with the proposal, suggesting that it essentially fits cryptocurrency into the existing financial services regulation framework. He pointed out that Australia lags behind global counterparts in implementing comprehensive crypto regulations, so adapting existing financial services regulations may be a pragmatic approach. Nevertheless, Miller emphasized the need to ensure that such regulations do not stifle future crypto innovations that might not neatly fit into traditional financial services categories.

Liam Hennessy, a partner at the international law firm Clyde & Co, highlighted that the Australian Treasury is grappling with the diversity of tokens and service providers in the cryptocurrency space. He also emphasized that the proposals outlined in the consultation paper are not legally binding recommendations but rather suggestions. The government is not obligated to follow these recommendations, and there will likely be lobbying and discussions following the release of the consultation paper.

Hennessy noted that the paper appears to neglect pressing issues faced by the cryptocurrency industry in Australia, such as the recent trend of de-banking, where licensed digital asset exchanges struggle to secure suitable banking arrangements. This has raised concerns about the sustainability of cryptocurrency businesses in Australia and their ability to provide services to customers effectively.

The Australian Treasury clarified that the purpose of the consultation paper is to solicit feedback on the various questions and regulatory proposals it contains. Stakeholders and interested parties have until December 1, 2023, to provide their feedback. This period offers an opportunity for the industry and regulatory authorities to engage in dialogue and collaboratively shape the future of cryptocurrency regulations in Australia.

In summary, Australia is moving forward with plans to regulate cryptocurrency exchanges by requiring them to hold financial services licenses. The proposed approach aims to balance consumer protection and innovation by regulating exchanges under existing financial services laws. The reaction within the crypto community is mixed, with some appreciating the thoughtfulness of the proposal while others express concerns about fitting crypto into existing regulations. The consultation paper represents an initial step in a broader conversation about cryptocurrency regulation in Australia, with stakeholders encouraged to provide feedback to help shape the final regulations.