Creates new legal definitions for key digital‑asset concepts and brings many crypto platforms into Australia’s financial services rules. Key new definitions include:
Digital token (electronic records a person can "factually control") — see section 761GB.
Digital asset platform (DAP) (a facility where an operator possesses tokens for or on behalf of clients) — see section 761GC.
Tokenised custody platform (TCP) (an operator issues a single token for a non‑money underlying asset and holds that asset for token‑holders) — see section 761GD.
Treats DAPs and TCPs as financial products in many contexts so they fall under the Corporations Act obligations (including licensing, disclosure and conduct rules) unless they are already a managed investment scheme — see insertion after section 764A and sections 761GC–761GD.
Requires platforms that issue these facilities and provide related financial services to hold an Australian Financial Services Licence (AFSL), subject to a transition period and limited small‑operator exemptions (see sections 911A(2)(ja), 1732–1733 and related transitional provisions).
Gives ASIC power to make binding, prudential‑style standards for platforms on how assets are held and how transactions are executed (the asset‑holding standards and transactional and settlement standards — sections 912BE and 912BF). The Act also requires platforms to publish and follow platform rules (section 912BG) and gives the Minister a power to prohibit particular products or transactions on particular platforms (sections 912BH–912BI).
The Corporations Amendment (Digital Assets Framework) Act 2026 amends the Corporations Act 2001 and the Australian Securities and Investments Commission Act 2001 to establish a dedicated regulatory regime for digital asset platforms and tokenised custody platforms. It inserts new definitions in section 9 and after section 761GA, including digital token in section 761GB, digital asset platform in section 761GC and tokenised custody platform in section 761GD. Digital asset platforms and tokenised custody platforms become financial products under paragraphs 764A(1)(la) and (lb) unless they are managed investment schemes. Operators must hold an Australian financial services licence authorising the relevant services, with tailored obligations under new Subdivision AA of Division 3 of Part 7.6 covering compliance with asset-holding standards made by ASIC under section 912BE and transactional and settlement standards under section 912BF. The Act introduces platform rules requirements in section 912BG, disclosure via DAP/TCP Guides under sections 1020AN to 1020AQ, and voting policies for underlying assets. It extends financial market and clearing and settlement facility concepts through ministerial declarations in sections 767B and 768B, while providing exemptions for low-value facilities in paragraph 911A(2)(ja), incidental advice in paragraph 911A(2)(jb), public digital token infrastructure in section 9E, and custodial staking arrangements in section 9F. Product intervention orders, market misconduct rules and design and distribution obligations are extended with constitutional limitations. Transitional provisions in Part 10.83 provide a transition period and delayed application for existing operators until they obtain or vary licences. The Act also updates related provisions on possession in section 86, client definitions, and ASIC Act financial product and service concepts to align with the new framework.
Official source available
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Amends the Corporations Act 2001 and Australian Securities and Investments Commission Act 2001 to update Australia’s digital asset regulatory regime by: defining the core concepts of digital tokens, digital asset platforms and tokenised custody platforms; applying the financial services law in a way that is tailored to these platforms; providing targeted exemptions for certain digital token arrangements; and providing the Australian Securities and Investments Commission and the Minister with powers to regulate these platforms.
Parliamentary progress
Progress
House of Representatives
Introduced and read a first time
26 Nov 2025
Second reading moved
26 Nov 2025
Second reading debate
03 Feb 2026
Referred to Federation Chamber
03 Feb 2026
Second reading debate
04 Feb 2026
Second reading agreed to
04 Feb 2026
Reported from Federation Chamber
04 Feb 2026
Third reading agreed to
04 Feb 2026
Senate
Introduced and read a first time
05 Feb 2026
Second reading moved
05 Feb 2026
Second reading agreed to
01 Apr 2026
Third reading agreed to
01 Apr 2026
Finally passed both Houses
01 Apr 2026
Assent
Act no: 38
Year: 2026
08 Apr 2026
Notes
Documents and transcripts
Text of bill
First reading
As passed by both Houses
Explanatory memoranda
Addendum and correction to explanatory memorandum
Explanatory memorandum
Transcript of speeches
All second reading speeches
Minister's second reading speech
Proposed amendments
Senate
Creates disclosure requirements tailored to platforms: a DAP/TCP Guide that must be given to retail clients (contents set out in sections 1020AN–1020AO) and a platform voting policy for governance/voting rights (sections 1020AP–1020AQ). It also sets rules on providing clients copies of communications about underlying assets (section 1020AR).
Carves out specific exemptions and limits: public digital token infrastructure (open, permissionless protocols) and certain custodial staking arrangements are excluded from being treated as managed investment schemes or financial products in particular ways (sections 9E–9F and amendments to the managed investment scheme definition). There is also a low‑value exemption (thresholds: $5,000 per customer and $10 million annual turnover by default, adjustable by regulation) for small operators (see 911A(2)(ja) and 911A(4B)).
Introduces significant delegated powers and conditional coverage:
The Minister can declare that a DAP is a financial market or a clearing and settlement facility even if the tokens themselves are not otherwise financial products (sections 767B and 768B). That changes which market‑regulation rules apply to some platforms.
ASIC may make standards by legislative instrument about custody, reconciliation, settlement and related matters (sections 912BE–912BF).
Limits some applications of the Act to entities or conduct with a clear constitutional link to Australia ("constitutionally‑covered corporations" and use of postal/telegraphic/telephonic services), creating a carve‑out where the platform is outside those connections (see sections 766K, 12BAC and multiple notes in the amendments).
Who this affects
Platform operators and custodians that possess tokens or hold underlying assets on behalf of others (both centralised exchanges and tokenised custodians) — directly affected by AFSL, asset‑holding, settlement standards and disclosure obligations (see sections 761GC–761GD, 912BE–912BF, 1020AN).
Financial services licensees that issue DAPs/TCPs — must adopt platform rules, comply with ASIC standards, and meet disclosure and voting policy requirements (sections 912BG, 912BB, 1020AP).
Retail and wholesale clients of those platforms — gain new disclosure rights, access to communications about underlying assets, and protections tied to licences and ASIC standards (sections 1020AN, 1020AR).
Non‑Australian or decentralised operators — may be in scope if they carry on business or induce Australians to use their services; but enforcement and constitutional limits are carefully constrained (see sections 911D (existing law), 766K, 12BAC and transitional notes).
Developers and operators of public permissionless infrastructure and certain staking services — specifically carved out from being captured as managed investment schemes in some circumstances (sections 9E–9F, amendments to the definition of managed investment scheme).
Why it matters (mechanics, incentives and trade‑offs)
Mechanically, the Act shifts many platform activities into the existing financial services architecture rather than creating a wholly separate regime: it does this by defining DAPs/TCPs as facilities and by using AFSL licensing, ASIC standards and market/clearing definitions to bring platforms under established obligations (see 761GC–761GD; 912BE–912BF; 767B/768B).
Who decides and how: the Minister can declare platform coverage and prohibit specific uses of platforms (767B, 912BH). ASIC sets technical standards about custody and settlement (912BE–912BF). Those delegated powers allow quick adjustments but concentrate substantial rule‑making discretion in the executive and the regulator.
Who pays: platform operators bear the direct compliance costs — licensing processes, capital/asset‑holding requirements, reconciliation and reporting systems, legal and disclosure costs. Consumers may face higher prices or reduced product choice if small platforms exit or consolidate because of compliance costs. The Householder/retail client gains better disclosure and some operational protections (1020AN–1020AR) but potentially at the cost of reduced competition.
Incentives and behavioural effects: platforms will have incentives to formalise custody arrangements (e.g., hold client assets under recognized trust/bailee arrangements or update internal accounting to satisfy possession rules in section 86 and 761GB). Some decentralised or offshore structures may alter how they market or allow access to Australian users to avoid Australian jurisdictional hooks (see constitutional‑coverage limitations in 766K and related provisions).
Trade‑offs and implementation risks:
Flexibility vs parliamentary oversight: Ministerial and ASIC instrument powers (767B, 768B, 912BE, 912BF, 912BH) provide agility for emerging tech but reduce the amount of primary‑law detail debated in Parliament. Those instruments are generally disallowable, but still enable substantial scope‑setting without full legislative amendment.
Capture and regulatory cost: broad definitions (notably digital token in 761GB) plus delegated regulation can raise compliance uncertainty and increase costs for small operators; that creates a risk of market consolidation benefiting larger incumbents able to absorb compliance burden.
Enforcement and cross‑border limits: the Act relies on existing constitutional bases and on ASIC’s traditional cross‑border tools; enforcement against decentralised or stateless actors may remain difficult in practice (see notes around constitutionally‑covered corporations and RG 121 references).
Potential overlap with other regimes: changes interact with AML/CTF rules administered by AUSTRAC and with securities/custody law; the Act provides some carve‑outs but also broad catch‑all definitions that could trigger parallel obligations (see definitions and exemptions in sections 9E–9F and managed investment scheme amendments).
Practical immediate effects
Operators that currently custody client tokens will need to prepare for AFSL requirements and to design platform rules, voting policies and disclosure guides (sections 912BB–912BG and 1020AN–1020AP). There is a transition window but the regulatory architecture (ASIC standards and Ministerial declarations) will determine specific operational requirements.
Small, low‑value operators can rely on statutory exemptions if they meet thresholds (911A(2)(ja), 911A(4B)), but those thresholds can be varied by regulation.
Wrapped tokens and certain redemption rights are treated specially: redemption rights can be disregarded for the financial‑product characterisation of a wrapped token in many cases (section 765E), which narrows some ways tokens become financial products.
Sections to look at first if you need to act
Definitions and possession: 761GB (digital token), section 86 (possession) and 761GC–761GD (platform definitions).
Ministerial declaration and prohibitions: 767B, 768B (market/clearing declarations); 912BH–912BI (prohibitions on product use).
Disclosure: 1020AN–1020AR (DAP/TCP Guide, voting policy, disclosure of communications).
(Claims about policy aims in the Explanatory Memorandum — e.g. improving consumer protection and regulatory certainty — are the Act’s stated purpose; the text then achieves that by imposing licensing, custody/settlement standards and disclosure obligations while giving the regulator and Minister powers to adapt scope. Those choices create the costs, incentives and trade‑offs described above: compliance costs and potential consolidation for operators, greater disclosure and procedural rights for clients, and increased discretionary rule‑making by the executive and ASIC.)
Main concepts
A digital token is an electronic record that one or more persons are capable of factually controlling by transferring it, excluding others from transferring it and demonstrating that capability, or an electronic record prescribed by regulations, as set out in section 761GB. Factual control focuses on practical ability rather than legal title, with joint control rules preventing possession where express cooperation of another is required. A digital asset platform is a facility where an operator possesses digital tokens for or on behalf of clients, either as trustee or bailee or under an obligation to deal with them on client instructions, and may authorise further conduct in relation to those tokens. A tokenised custody platform creates a single digital token for each non-money underlying asset, with possession of the token conferring a redemption or delivery right, while the operator holds the asset for the token holder under similar trustee or bailee arrangements. Wrapped tokens are addressed in section 765E, where redemption rights are disregarded when determining financial product status unless the related asset is itself a financial product and rights are not equivalent to direct holding. Public digital token infrastructure covers open-source, permissionless protocols for transmitting or recording digital tokens where no single participant is critical. Custodial staking arrangements allow operators to use client assets for consensus activities with explicit authorisation, passing rewards to clients while providing benefits such as earlier returns or fee reductions. Platform rules function as a contract between the licensee and clients, covering eligibility, settlement methods, disclosure of risks and liquidity sources. Asset-holding standards address custody, recordkeeping, reconciliation, use of assets and money held in trust, while transactional and settlement standards cover execution, client instructions, liquidity arrangements and monitoring of market makers.
Who it affects
The regime directly affects operators of digital asset platforms and tokenised custody platforms, including cryptocurrency exchanges, tokenised asset custodians and providers of facilities that hold or manage digital tokens on behalf of clients. Existing Australian financial services licensees whose authorisations cover dealing in or advising on these platforms must comply with additional standards and platform rules. Retail and wholesale clients using such platforms gain rights to disclosure through DAP/TCP Guides, voting policies and communications about underlying assets. Financial advisers providing advice on platforms or tokens face licensing implications where the tokens or platforms constitute financial products. Issuers of wrapped tokens, stablecoins and tokenised securities must consider whether redemption features trigger financial product classification. Decentralised autonomous organisations and operators of public digital token infrastructure receive targeted exemptions but may still face analysis where client assets are held. Offshore platforms that carry on business in Australia or induce Australians to use their services are captured through the constitutional corporations and communications powers. ASIC gains expanded supervisory and enforcement responsibilities, while the Minister obtains powers to make declarations and prohibitions affecting market structure. Traditional custodians, central securities depositories and banks may experience overlap or competition questions where digital token arrangements replicate existing functions. Smaller operators below the $5,000 per client and $10 million annual volume thresholds, and businesses providing incidental platform access such as payment method options, benefit from exemptions.
What people will want to know
Operators will want to know whether their facility meets the definition of a digital asset platform or tokenised custody platform and therefore requires an Australian financial services licence, what capital and operational standards ASIC will impose, and how the 12-month period to commencement plus transition provisions affect their compliance timeline. Clients will want to understand what information must be provided in a DAP/TCP Guide before they become clients, how voting rights attached to underlying assets will be exercised, and what protections apply if the platform operator becomes insolvent. Businesses holding digital assets through existing arrangements will want to know whether they must restructure to avoid being treated as operating a platform. Advisers will want clarity on when advice about specific digital tokens requires licensing because the token is a financial product or because it is held through a regulated platform. Token issuers will want to know whether creating wrapped versions of assets on different blockchains triggers additional obligations or can rely on the disregard of redemption rights. Smaller or early-stage projects will want to confirm eligibility for the low-value exemption and the process for lodging notice with ASIC. Offshore platforms will want to know the triggers for carrying on business in Australia and whether they can rely on substituted compliance or cooperation arrangements. All participants will want to know how the Minister's powers to prohibit certain products through platforms or to deem platforms as financial markets will be exercised in practice and what consultation occurs beforehand.
Status and what happens next
The Bill was introduced in the House of Representatives on 26 November 2025, passed both Houses on 1 April 2026 and received royal assent on 8 April 2026 as Act No. 38 of 2026. The Act commences on the day after the end of the 12-month period beginning on assent, which is 8 April 2027. Part 10.83 contains application and transitional provisions that delay full application during a six-month transition period for responsible persons who do not yet hold an authorising licence. During the transition period operators may apply for a new licence or variation of conditions. After commencement the new definitions, licensing requirements and standards apply to services provided on or after that date, while platforms issued on or after commencement are subject to the disclosure and other provisions even where no financial service is involved. ASIC is expected to consult on and make the asset-holding and transactional and settlement standards before commencement. The Minister may begin considering declarations under sections 767B and 768B once the framework is operational. No schedules of amendments were made during passage, and the Senate Economics Legislation Committee reported on the Bill prior to passage.
Powers, duties and rights created
ASIC gains power under section 912BE to make legislative instrument standards for asset holding, custody, recordkeeping, reconciliation, use of client assets and money held in trust, with a requirement to be satisfied that standards are proportionate to platform size, scale and nature. Under section 912BF ASIC may make transactional and settlement standards covering execution models, client instruction handling, liquidity sourcing and monitoring of market makers. The Minister may declare under section 767B that a digital asset platform is a financial market in relation to specified classes of digital tokens, and under section 768B that it is a clearing and settlement facility, subject to conditions and duration limits, after considering economic impact, competition, regulatory burden and advice from ASIC, APRA, the Reserve Bank or AUSTRAC. The Minister may also prohibit specified conduct involving financial products through particular platforms under section 912BH after similar consultation. Licensees have duties to comply with standards, maintain compliant platform rules that operate as a contract, provide DAP/TCP Guides containing required information on risks, fees, rights and complaints, maintain and administer voting policies, and ensure clients receive copies of communications about underlying assets. Clients gain rights to receive guides and updated information, to instruct on voting where the policy permits, to obtain copies of asset-related communications, and to benefit from trust or bailee arrangements for assets. Constitutional limitations restrict certain conduct and service provisions to constitutionally covered corporations or use of postal, telephonic or like services. Exemptions create rights for public infrastructure operators and participants in consensus activities to avoid classification as financial services or managed investment schemes.
Money, penalties and enforcement
Breaches of key obligations, including compliance with asset-holding and transactional standards, maintenance of platform rules, provision of accurate DAP/TCP Guides and adherence to ministerial prohibitions, are civil penalty provisions under section 1317E. The Act does not prescribe fixed monetary penalties in the primary text but subjects contraventions to the existing civil penalty regime in the Corporations Act, which allows courts to impose pecuniary penalties calibrated to the seriousness of the breach and the size of the entity. Licensees must meet financial adequacy requirements through the asset-holding standards, which may include net tangible asset or capital thresholds proportionate to platform scale. Client money that is not an underlying asset must be held in trust. Enforcement is primarily by ASIC through its existing supervisory, investigation and prosecution powers, supplemented by the ability to issue product intervention orders in relation to platforms that meet constitutional criteria. No new criminal offences are created beyond existing financial services law contraventions. The low-value exemption removes licensing obligations where per-client holdings stay below $5,000 and annual transaction volume below $10 million, with power for regulations to increase those thresholds. Transitional provisions protect operators from immediate application while they seek licensing, but once the transition period ends unlicensed operation attracts the full range of civil penalties and licence prohibition orders.
Pressure points and controversies
The breadth of the digital token definition, which captures any electronic record subject to factual control, creates potential for overlap with existing regulated arrangements such as bank accounts, securities ledgers and traditional custody services, raising questions of regulatory duplication that the official materials notes were raised by stakeholders including ACSA and AFMA. The Minister's powers to extend the meaning of financial market and clearing and settlement facility, and to prohibit conduct through platforms, function as broad delegated powers that allow significant regulatory change without further parliamentary amendment, a feature the Senate Scrutiny of Bills Committee has historically examined. Proportionality of ASIC-made standards for smaller platforms is addressed by a statutory requirement that standards be reasonably proportionate, yet industry commentary in the official materials questioned whether net tangible asset requirements modelled on traditional custodians would be suitable for digital asset businesses. Enforcement against decentralised autonomous organisations remains practically difficult because there is often no central entity or directors to serve, even though the framework intends to cover multi-signature arrangements where participants jointly control tokens. Offshore platforms face jurisdictional reach based on carrying on business or inducing Australian clients, but the Act creates no new mutual assistance mechanisms beyond existing treaties and IOSCO cooperation. The treatment of wrapped tokens and the disregard of redemption rights provides clarity but leaves open regulatory arbitrage where rights are structured to be equivalent to direct holding. The low-value exemption thresholds, while intended to support innovation, may prove difficult to monitor given asset price volatility, as noted in consultation feedback. Overall the framework trades regulatory neutrality and consumer protection for increased compliance costs and potential consolidation among smaller operators.
What changes if it passes
Once the Act commences on 8 April 2027, operators of facilities that possess digital tokens for clients or create redeemable tokens linked to underlying assets must hold an Australian financial services licence with appropriate authorisations and comply with ASIC standards on custody, settlement and conduct. Platforms will be required to publish platform rules and DAP/TCP Guides that disclose fees, risks, settlement methods, liquidity sources and voting arrangements before accepting retail clients. Clients will receive enhanced disclosure and contractual rights under platform rules, together with trust protections for money and assets. The Minister and ASIC will have explicit powers to declare certain platforms as financial markets or clearing and settlement facilities and to prohibit particular products or conduct through them. Public blockchains and open consensus activities receive statutory exemptions from financial product and managed investment scheme classification. Smaller operators meeting the volume and value thresholds may continue without licensing, while incidental service providers such as merchants offering crypto payment options are similarly exempt. Existing litigation and regulatory guidance on whether particular tokens are financial products will be supplemented by the new facility-based regime, reducing reliance on case-by-case characterisation for platform operators. Market integrity and consumer protection standards will align more closely with those applying to traditional financial products, while the framework preserves technological neutrality by focusing on legal rights and control rather than specific blockchain features.
Social post angles
Australia finalises digital asset licensing rules: the new Act requires platform operators to hold AFSLs and meet custody standards from April 2027. Tokenised real-world assets gain clearer custody rules under the tokenised custody platform definition, allowing redemption rights while imposing trustee-like obligations. Small crypto projects can still operate without licences if they stay below $5,000 per client and $10 million annual volume. Public blockchains and staking arrangements receive explicit exemptions, preserving decentralised innovation within the regulatory perimeter. Clients of digital asset platforms will soon receive mandatory guides covering fees, risks, voting rights and complaints processes. ASIC gains power to set proportionate capital and operational standards for platforms of different sizes and risk profiles. Ministerial powers to prohibit products through platforms or deem them financial markets provide flexibility for emerging risks without new primary legislation. Wrapped tokens avoid automatic derivative classification where redemption rights are disregarded, reducing compliance friction for cross-chain assets.
CW - Opposition [sheet 3769]
CANAVAN, Sen Matthew
CW - Opposition [sheet 3768]
CANAVAN, Sen Matthew
Schedules of amendments
No documents at present
Bills digest
Bills Digest
Notes
Considered by scrutiny committee (04/02/2026): Senate Standing Committee for the Scrutiny of Bills; Report 1 of 2026
Referred to Committee (05/02/2026): Senate Economics Legislation Committee; Committee report (16/03/2026)
An electronic version of this Act is available on the Federal Register of Legislation (www.legislation.gov.au)
The Corporations Amendment (Digital Assets Framework) Bill 2025 amends Australia’s financial services law (the Corporations Act 2001 and the Australian Securities and Investments Commission Act 2001) to regulate digital asset platforms and cryptocurrency exchanges. The reforms aim to strengthen consumer protection, market integrity, and regulatory certainty while supporting innovation in digital finance.
The Bill does not define ‘digital asset’, but it defines digital tokens, digital asset platforms (DAPs) and tokenised custody platforms (TCPs). DAPs and TCPs would be ‘financial products’ (unless they are managed investments) and would:
be subject to the general obligations of the financial services law (e.g. Australian Financial Services Licence (AFSL) and consumer protection requirements) and
face specific obligations, including minimum standards for asset holding and disclosure obligations tailored to reflect their structure and risk profile.
There would be exemptions from the regime, including a low value exemption and an ‘incidental activity’ exemption.
The Bill would give ASIC broad supervisory and enforcement powers over DAPs and TCPs. Breaches of obligations may attract civil penalties.
The Bill contains provisions which, while providing flexibility to deal with emerging issues, would enable the Minister and ASIC to expand the scope of the regime by legislative instrument.
Businesses would have 18 months to comply with the new licensing and operational standards.
At the time of writing, the Bill had not been referred to, or reported on, by any parliamentary committees.
Introductory Info
Date of introduction: 26 November 2025
House introduced in: House of Representatives
Portfolio: Treasury
Commencement: 12 months after Royal Assent.
Purpose of the Bill
The purpose of the Corporations Amendment (Digital Assets Framework) Bill 2025 (the Bill) is to amend the Corporations Act 2001 and the Australian Securities and Investments Commission Act 2001 (ASIC Act) to implement a regulatory framework for businesses that hold or manage digital assets on behalf of consumers. The Bill aims to close regulatory gaps, improve consumer protection, and ensure businesses holding digital assets meet standards like those in the broader financial system.
Background
Explanation of ‘digital asset’ and other key terms
According to Thomson Reuters, a digital asset is: ‘Any of a broad category of assets that are issued and transferred using blockchain technology, including cryptocurrency, virtual currency, stablecoins, digital coins and tokens, such as security tokens, utility tokens, and governance tokens, as well as non-fungible tokens (NFTs)’. A digital asset is ‘[a]lso sometimes referred to as a crypto asset or virtual asset’. Other definitions are similar.
Digital assets are a rapidly growing part of the Australian and world economy. According to the Tech Council of Australia (2022), supporting a responsible digital asset sector could add up to $60 billion per year to gross domestic product (GDP) by 2030 (p. 4), reduce retail payment costs by 80% by 2050 (p. 28), and save consumers $4 billion annually on international transaction fees (p. 49).
A blockchain is a decentralised, distributed public digital ledger that records transactions across many computers, making it resistant to tampering because changes require network consensus and alteration of all subsequent blocks.
Tokenisation is the process of replacing a sensitive asset with a token (a unique and nonsensitive string of symbols randomly generated by an algorithm). According to the Bank for International Settlements (BIS), it involves generating and recording a digital representation of assets on a programmable platform (pp. 6-7).
Cryptocurrencies (crypto) and stablecoins are types of digital currency that allow people to make payments directly to each other through an online system. Stablecoin prices are linked to other crypto assets, fiat currencies or commodities (p. 43). They can be used for investments and domestic and international payments.
However, crypto is not money, partly due to its volatility. According to the Reserve Bank of Australia (RBA):
Cryptocurrencies have no legislated or intrinsic value; they are simply worth what people are willing to pay for them in the market. This is in contrast to national currencies, which get part of their value from being legislated as legal tender.
NFTs are tokens used to represent ownership of unique items in the digital or real world, like art, collectibles, or even real estate (p. 10). They can also be used for proving identity and granting access (to either a virtual or physical space, p. 10).
The global regulatory landscape for stablecoins and other cryptoassets is rapidly evolving (p. 14). Jurisdictions have intensified regulatory efforts to help preserve and promote the safety, efficiency and integrity of the monetary and financial system. At the end of 2024, more than 2 out of 3 jurisdictions worldwide currently, or would soon, regulate stablecoins and other cryptoassets (p. 14).
In Australia, the main regulator of digital assets has been the Australian Transaction Reports and Analysis Centre (AUSTRAC) under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006, but regulatory responsibility is shared across a number of regulators (including ASIC). According to law firm K&L Gates on 24 November 2025:
The Australian framework for regulating digital assets has, up until the introduction of the Bill, been relatively fragmented. The position from the Australian Securities and Investment Commission (ASIC) is outlined in Information Sheet 225 (which is also under review). According to ASIC, the existing financial services regime applies in determining whether a crypto-asset is a financial product or not.
For example, a digital asset, if it has the relevant features, may amount to a managed investment scheme or security. As such, the exercise of determining whether a particular token is a financial product is an issue that has been at the forefront of the digital asset space.
There have been a number of pieces of litigation in this space, where ASIC has prosecuted token issuers for issuing what it alleges to be financial products. The outcomes of these cases have been varied and have only provided limited clarity. The crypto industry in Australia more broadly has decried the use of an apparent regulation by enforcement approach as not being a fair or efficient method of clarifying these issues.
Globally, fragmented regulation has increased compliance costs, created market entry barriers, and potentially inhibited investment and innovation. The fragmentation of regulation means that businesses struggle to determine which obligations apply and there may be gaps in consumer protection. In Australia, businesses can currently hold unlimited client digital assets without financial law safeguards.
Cryptocurrencies have an important anti-money laundering and counter-terrorism financing (AML/CTF) dimension. According to the BIS (p. 1):
Cryptoassets circulating on permissionless public blockchains have grown in heft rapidly and are becoming increasingly integrated with the mainstream financial system … Since 2022, stablecoins have overtaken bitcoin as the asset of choice among criminals using crypto, and as of 2024 accounted for approximately 63% of all illicit transactions.
The history of digital assets and their regulation in Australia
Launched in January 2009, Bitcoin was the first decentralised convertible digital currency and the first cryptocurrency.
In 2014, the Australian Taxation Office (ATO) issued Taxation Determination TD 2014/26 which classified cryptocurrencies as property (rather than money or foreign currency), subjecting them to capital gains tax (CGT).
Australia lacks a dedicated legal framework for digital assets; they are governed under existing financial services laws. The question of whether a digital asset constitutes a financial product, and the attendant licensing obligations requires complex legal analysis (pp. 323-4).
In September 2017, ASIC issued its official guidance on how financial services laws apply to digital assets (Information Sheet 225 (INFO 225)) with updates in 2018, 2019 and 2021. It was most recently updated in October 2025 after industry consultation. INFO 225 provides examples that indicate whether a digital asset or related product is likely - or unlikely - to be a financial product and, if so, which type of financial product. INFO 225 also states that:
certain managed staking arrangements (staking is the practice of locking digital tokens to a blockchain network in order to earn rewards) may be treated as managed investment schemes (MIS)
stablecoins may be considered non-cash payment facilities or MIS interests
wallets with ‘pay anyone’ features may be regulated as non-cash payment facilities
tokens with rights similar to shares (e.g., voting, dividends) likely qualify as securities.
In December 2017, the then Coalition Government amended the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act) to require digital currency exchanges to register with AUSTRAC, introducing know-your-customer (KYC) and reporting obligations.
In 2021, the interim and final reports of the Senate Select Committee on Australia as a Technology and Financial Centre, chaired by Liberal Senator Andrew Bragg, highlighted regulatory gaps. It recommended (in Final Report Chapter 3 and Recommendations 1-4) moving beyond AUSTRAC’s ’light-touch’ regulation of digital currency exchanges (para 3.26) to a comprehensive framework for digital assets.
In March 2022, Treasury released the Crypto Asset Secondary Service Providers: Licensing and Custody Requirements: Consultation Paper. Treasury received 110 submissions, including 11 confidential submissions. The paper proposed three different regulatory options (pp. 16-19), with many stakeholders indicating that leveraging the existing financial services laws was the most appropriate avenue (Explanatory Memorandum (EM), p. 4).
In May 2022, the Terra network, which issued the Luna cryptocurrency, collapsed. According to the BIS, the market volatility that followed caused losses worldwide of over $450 billion (p. 1). BIS also notes that similar market volatility after the FTX cryptocurrency exchange collapsed in November 2022 caused global losses of around $200 billion (p. 1). An estimated 30,000 Australian investors were affected. Lack of oversight may have contributed to these collapses.
In February 2023, Treasury released the Token Mapping: Consultation Paper. 91 submissions were received for this consultation, including 8 confidential submissions. Treasury identified potential gaps under the existing regime but recommended against a new ‘bespoke’ taxonomy for crypto assets (paras 49-52, p. 18). Many stakeholders agreed with this recommendation (EM, p. 4).
In October 2023, Treasury released the Regulating Digital Asset Platforms: Proposal Paper. Consultation was from 16 October to 1 December 2023. There were 72 published responses. The paper introduced the idea of a new type of financial product called a ‘digital asset facility’ (which had broad stakeholder support) (EM, p. 5).
In the 2024-25 Budget (Budget Paper No. 2, p. 182), the Government undertook to develop and consult on legislation to licence and regulate platforms that hold digital assets.
In June 2025, the Full Federal Court handed down its decision in ASIC v Web3 Ventures Pty Ltd [2025] FCAFC 58 (Block Earner), finding that a crypto product was not a ‘financial product’ for the purposes of the Corporations Act, because it was neither a managed investment scheme, nor a derivative, nor a facility by which a person made a financial investment. In September 2025 the High Court granted ASIC special leave to appeal Block Earner.
In July 2025 the Full Federal Court handed down its decision in ASIC v Wallet Ventures Pty Ltd [2025] FCAFC 93, dismissing ASIC’s appeal against the 2024 decision of the Federal Court that found that a crypto product, Finder Earn, was not a debenture and therefore a financial product requiring an AFSL.
Following those decisions, in September 2025, the Government released exposure draft legislation, the Treasury Laws Amendment Bill 2025: Digital Asset, and Tokenised Custody, Platforms. The consultation occurred in September-October 2025. Treasury is yet to publish the submissions it received.
Policy position of non-government parties/independents
Senator Andrew Bragg released 2 successive private senators’ Bills aimed at regulating digital assets in Australia. These were the Digital Assets (Market Regulation) Bill 2022 and the Digital Assets (Market Regulation) Bill 2023, the latter of which was introduced and reported on by the Senate Economics Legislation Committee (the Bill lapsed at the end of the 47th Parliament). In April 2025, the then Shadow Treasurer, Angus Taylor, promised (if elected) to introduce digital asset regulation within 100 days of the election (p. 12).
The Opposition, other non-government parties and independents do not appear to have yet stated a policy position on the Bill.
Key issues and provisions
Several stakeholders, including the Australian Banking Association, the Australian Custodial Services Association (ACSA), the Australian Financial Markets Association (AFMA), Blockchain Australia, the Digital Economy Council of Australia (DECA), the Financial Services Council, KPMG, the Law Council of Australia (LCA), and the registered crypto exchange Swyftx were supportive of the general approach proposed in the Exposure Draft and/or 2023 Treasury Proposal paper, while providing detailed comments on the measure. In contrast, the Australian Bitcoin Industry Body (ABIB) was opposed to the approach.
AFMA stated in relation to the Exposure Draft:
AFMA supports the general approach of continuing the application of financial services law unless expressly exempted by the legislation … We also support the regime’s regulatory neutrality and agree with the underlying view that ‘same risk, same regulation’ is appropriate given the same risks are present in different forms in schemes implemented with different technologies. We also support the technological neutral approach which is silent on the underlying technology and seeks instead to work from the basis of legal rights. (pp. 1-2)
In relation to the Exposure Draft law firm Allens pointed out:
The new regime will not change the characterisation of whether the underlying digital assets or tokens are themselves financial products, or the obligations of issuers or those providing other services in relation to digital assets or tokens (other than the provision of digital asset platforms or tokenised custody platforms). The existing regime and ASIC's current guidance on these matters will continue to be relevant.
Meaning of ‘digital token’
The Bill adopts the term ‘digital token’ which is defined in item 1, proposed subsection 761GB of the Corporations Act as:
an electronic record that one or more persons are capable of factually controlling or
an electronic record prescribed by regulations.
DECA commented:
… the Draft Bill adopts the term “digital token” across sections 761GB to 761GD, while AUSTRAC uses “virtual asset” as a globally recognised term. This divergence risks confusion when applying AML/CTF reporting obligations and the Travel Rule, and causes misalignment between Treasury, AUSTRAC and international partners. It also causes unnecessary legal complexity in an already complex legal framework. There is strong precedent for AML/CTF laws and Corporations Act laws to be consistent … (p. 8)
ACSA argued that ‘digital token’ was broad and potentially duplicative. It asked:
Specifically, how will overlapping or conflicting obligations be managed when assets traditionally regulated under other regimes (e.g., cash, securities) are held or transacted via digital tokens? How will the regime address situations where a digital token is representation of an existing regulated product (e.g., tokenised government bonds, tokenised deposits)? (pp. 1-2)
Meaning of ‘control’ and ‘factual control’
AFMA raised the meaning of ‘control’ and ‘factual control’ (as opposed to legal control) of a digital token (item 1, proposed subsection 761GB(2)). That provision states:
A person is capable of factually controlling an electronic record if the person can (whether alone or jointly with one or more other persons):
(a) transfer the electronic record; and
(b) exclude one or more other persons from transferring the electronic record; and
(c) demonstrate that the person can do the things in paragraphs (a) and (b).
Note: A person who can do all of these things possesses the digital token (see paragraph 86(2)(a)).
The Explanatory Memorandum (EM) (pp. 22-23) clarifies the meaning of joint possession as covered by item 30, proposed paragraph 86(2)(a) and subsection 86(3), stating that where 2 or more people are concurrently capable of factually controlling the same digital token but the degree of control they have is unequal, the person who (for example) requires the consent of the other to transfer the token does not possess the token.
AFMA suggested that: ‘Control might apply in ways that are likely not intended to be captured such as where a provider of systems or storage to a digital asset inadvertently has the ability to exclude others including the owner of the asset.’ It also suggested that ‘factual control might be better framed as factual control in accordance with the law’ (p. 3). DECA argued the term ‘control’ should be refined to mean actual unilateral authority to move assets,not joint or technical control (p. 9). While the term ‘factual control’ appears uncommon in the law, the concept of ‘effective control’ is used in taxation and criminal law (proceeds of crime) contexts.
Proposed paragraph 761GB(1) allows the regulations to prescribe that an electronic record is or is not a digital token. This provision gives the Government flexibility to expand or narrow the scope of what is regulated without parliamentary amendment (although any regulation would be subject to parliamentary scrutiny and disallowance), which could significantly affect industry obligations.
Meaning of ‘digital asset platform’ and ‘tokenised customer platform’
According to paragraph 1.78 of the EM a digital asset platform (DAP) is a facility under which the operation:
possesses digital tokens and
records clients’ interests in an account (item 1, proposed section 761GC).
According to paragraph 1.78 of the EM, a tokenised custody platform (TCP) holds assets or possesses digital tokens, and records clients’ interests as digital tokens. Paragraph 1.91 of the EM clarifies a digital token is issued for each underlying asset and:
possession of the digital token gives the holder a right to redeem or direct delivery of that asset and
the TCP holds the asset for, or must deal with it on the instructions of, the digital token holder ‘as a trustee or bailee’ (item 1, proposed section 761GD).
The difference between the two is that a DAP generally manages existing digital tokens, while a TCP specifically creates tokens that represent a right to redeem a linked, underlying real‑world asset (like gold or shares) held by the platform, acting as both issuer and custodian.
In commenting on the Exposure Draft Bill, the LCA (at para 6) and DECA (pp. 11-12) criticised the definition of a DAP and a TCP as holding digital tokens on trust. The LCA said:
As is well known, many centralised cryptocurrency exchange (CEx) platform operators do not promise to hold digital tokens on trust for, or on behalf of their users; rather digital tokens are owned by the platform operator and the user merely obtains a chose in action [an intangible personal property right] representing their right to have equivalent tokens reconveyed upon demand, the value and denomination of the chose in action fluctuating according to account balances.
This issue appears to have been addressed in the Bill. Item 1, proposed paragraphs 761GC(1)(b) and 761GD(1)(d) now relevantly read:
the underlying assets are so possessed/held for or on behalf of another person … including by the operator:
acting as trustee or bailee; or
being obliged to ensure that the underlying assets are dealt with on the instructions of the other person. (emphasis added)
According to paragraph 1.84 of the EM:
Arrangements that involve a person holding assets on behalf of another as trustee or bailee are captured. So too are arrangements for a client to transfer full title in digital tokens in return for a contractual right to instruct the operator in relation to how those digital tokens are dealt with. [emphasis and underline added]
ACSA commented in relation to the exposure draft legislation:
We request further clarification on the relationship between central securities depository (CSD) services, traditional custodial services, and the new categories of DAP and TCP. Specifically, what are the substantive differences between the regulatory regime for DAP/TCP and the existing frameworks for central depositories and custodians? How will the new rules apply in practice to platforms that perform similar functions to CSDs? (p. 2)
Possible regulatory duplication and overreach by ASIC
Law firm KWM has commented: ‘The breadth of several concepts including “digital token” … makes these proposals potentially relevant to multiple platforms that have nothing to do with Bitcoin or other blockchain-based assets.’
DECA stated:
The Bill also lacks clear boundary tests distinguishing between DAPs, Tokenised Custody Platforms (TCPs), managed investment schemes (MISs), and financial markets, leading to potential double regulation and uncertainty in classification. (p. 12)
AFMA suggested:
… a list of specific exclusions [from the concept of ‘digital token’] that can be expanded by the Minister over time, might reduce unnecessary considerations of unintended crossover of the new regime with existing arrangements. For example, a bank account password might be stored on a cloud storage file system, the bank account qualifying as a Digital object, the password as a token, and the cloud storage provider as a Digital Asset Platform. (p. 2)
While ASIC is of the view that many digital assets are financial products under the current law, the changes would confirm this to be the case, resulting in a significant increase in ASIC’s remit. In relation to digital assets held under a DAP or a TCP, it would be able to:
supervise compliance with custody, settlement, and client money rules
enforce consumer protection measures, including issuing product intervention orders and prohibitions on misleading conduct and unfair contract terms
apply design and distribution obligations, disclosure requirements, and significant civil penalties for breaches.
ABIB has asserted that Bitcoin is a commodity and not a financial product (p. 14). Further, it has claimed that the Bill’s broad definition of DAP would ‘extend AFSL-level obligations into a new market that deliberately ignores the fundamental differences between securities, managed investments, and commodity-like assets such as Bitcoin.’ Industry critics like ABIB are concerned that the Bill blurs the distinctions between different products and expands ASIC’s powers into the area of commodity regulation.
It can also be argued that failures like Terra and FTX have been attributed to fraud and defects in internal systems (pp. 8-9), more than issues related to regulatory classification or licensing.
Requirement to obtain an AFSL
Under the Bill, DAPs and TCPs would be required to hold an Australian Financial Services Licence (AFSL) (EM, para 1.109). Their obligations would be tailored to reflect their structure and risk profile.
DECA commented in relation to the Exposure Draft (p. 14):
The Draft Bill overlays new DAP and TCP authorisations on top of existing Australian Financial Services Licence (AFSL) categories without a clear sequencing mechanism. It remains unclear whether platforms must hold both DAP/TCP authorisations and existing custody or dealing permissions before commencing operations … Treasury should confirm that DAPs and TCPs holding an AFSL are not required to obtain separate custodial and depository authorisations.
Opponents of the Bill are quoted as saying that smaller or specialized crypto platforms, particularly those dealing only in Bitcoin, might struggle with the administrative and financial burden of obtaining an AFSL under the expanded licensing regime. This could reduce market competition or force consolidation. This is despite the exemption for ‘genuinely small’ operators (discussed below).
Minister’s deeming powers
Item 14, proposed section 767B would empower the Minister (by legislative instrument) to extend the definition of a financial market to include certain digital asset platforms that deal in digital tokens which are not otherwise financial products. Under proposed subsection 767B(2), the declaration may be unconditional or conditional, and may apply for a specified period or indefinitely.
While a legislative instrument would be disallowable, this might be regarded as a ‘Henry VIII clause’ which would allow the Government to effectively alter the application of primary legislation. The Senate Standing Committee for the Scrutiny of Bills has frequently commented on Henry VIII clauses. The clause means that significant regulatory change could occur through delegated legislation rather than being subject to full parliamentary debate. It could lead to uncertainty for industry and ‘scope creep’, and reduce Parliament’s role in setting the regulatory framework for financial markets.
On the other hand, AFMA argued for wider Ministerial deeming powers:
[O]ur main recommendation is that Treasury adjust the Exposure Draft to extend the deeming powers of the Minister proposed under 767B to bring types of products and platforms into, or carve them out of, the regime as needed from time to time. This should go to the definitions of Digital Object, Digital Token, but it should also grant more general powers in relation to types of Digital Asset Platforms and Tokenised Custody Platform. Gaining post-legislation flexibility would de-risk the project for Treasury and increase the potential for the arrangements to evolve with sometimes fast changing international developments. (p. 1)
This recommendation appears to have been partially adopted by proposed paragraph 761GB(1)(b), discussed above, which enables an electronic record to be prescribed not to be a digital token.
Supervision and ministerial powers
In relation to the Exposure Draft, DECA raised concerns about the powers given to the Minister to prohibit certain conduct and transactions from occurring through DAPs or TCPs:
Sections 912BH to 912BI of the Draft Bill grant the Minister broad powers to declare, prohibit, or vary digital asset activities without defined statutory criteria, timelines, or procedural safeguards. ASIC also gains open-ended authority under section 912BE to issue standards governing capital, custody, disclosure, and conduct, without a mandatory requirement for public consultation or ministerial oversight. The absence of proportionality tests and review mechanisms risks arbitrary or inconsistent application of powers, deterring innovation and investment in the domestic market. (p. 18)
Despite these concerns, as with the exposure draft provisions, proposed sections 912BH and 912BI contain safeguards. Proposed section 912BI specifies certain matters to which the Minister must have regard in deciding whether to make a declaration under proposed subsections 912BH(1) or (3). Importantly, ASIC, APRA and the Reserve Bank are all permitted to provide advice to the Minister on their own initiative about any proposed prohibitions and are also required to provide such advice if requested by the Minister.
Exemptions for public digital token infrastructure and custodial staking arrangements
Public digital token infrastructure refers to open, decentralized systems (like certain blockchains) that facilitate the transmission, processing and recording of data in relation to digital tokens without needing permission from any central authority or gatekeeper. A custodial staking arrangement has been defined in the US as a service where a third party, such as a cryptocurrency exchange or specialized service provider, takes control (custody) of a user's digital assets to perform the technical process of staking on their behalf (staking is defined above).
Both public digital token infrastructure (defined in items 58 and 59, amended section 9 and proposed section 9E) and custodial staking arrangements (item 59, proposed section 9F) would be exempt from regulation as a MIS or financial product under the Bill. DECA commented:
The Draft Bill’s treatment of exemptions for self-custody [EM, p. 20], intermediated staking, and public infrastructure is too narrow and lacks clarity. The absence of explicit carve-outs for wallet software, validator nodes, and infrastructure providers risks capturing non-custodial or technical services that do not handle client assets. Additionally, uncertainty remains over whether intermediated staking exemptions extend to non-reward benefits or to tokenised representations issued by licensed TCPs. (p. 17)
Exemptions for 'genuinely small and lower risk' operators
According to paragraph 1.232 of the EM (p. 54):
There are two categories of service providers that are exempt from holding an AFS licence because they are considered to pose a minimal risk as:
they are low-value (i.e. not meeting a prescribed financial threshold); or
the services they provide are not considered a significant part of their business.
Platforms that hold less than $5,000 in digital assets per customer and process under $10 million in total transaction volume per year do not need an AFSL. The $5,000 and $10 million amounts can be increased by prescribing in regulations a higher amount (items 67 to 70, proposed subparagraph 911A(2)(ja), and subsection 911A(4B)).
Supporters argue that this approach allows early-stage projects (and other lower risk operators) to operate without facing full financial services requirements from day one. KPMG considered that:
… the exemption for low value facilities may be difficult to monitor given fluctuations in value. Consideration could be given as to whether the dollar amount thresholds should be assessed on an ongoing basis (i.e. at any given point in time), or over a reasonable time period to allow for fluctuations and also to enable providers to take action in response to reaching a threshold. (p. 3)
Under proposed paragraph 911A(2)(jb), there would be an exemption where a person advises another person about the existence of, or arranges for another person to use, a DAP or TCP in the ordinary course of the first person’s business and this is an insignificant part of their business - for example, a grocery business that provides a variety of payment methods for customers to purchase goods and services (paragraph 1.241 of the EM).
Capital and financial adequacy standards
As set out in ASIC guidance such as Regulatory Guides 133 and 166 and ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648, ASIC capital and asset‑holding standards are prudential‑style requirements imposed on certain AFS licensees,particularly market intermediaries, custodians, and platform operators. These requirements include solvency and net tangible assets and cash needs. The Treasury Proposal Paper stated that platforms that hold, control, or intermediate access to client digital assets create similar risks to consumers as traditional custodial and market intermediaries (p. 2) . According to para 1.170 of the EM, applying such standards ‘ensures consumers receive a consistent level of protection [e.g. from loss of capital] regardless of whether their assets are held under [DAPs], [TCPs] or other asset-holding arrangements.’
According to DECA:
Section 912BE [‘asset-holding standards’] empowers ASIC to establish written standards for licensees, including rules for financial resources, custodial conduct, and governance. However, no statutory limits or consultation requirements are imposed. ASIC could set net-tangible-asset (NTA) or capital thresholds comparable to those for traditional custodians … which would be disproportionate for smaller DAPs and TCPs … Comparable frameworks, such as Singapore’s Payment Services Act 2019 and the United Kingdom’s FCA [Financial Conduct Authority] handbook, apply tiered capital requirements calibrated to transaction volume and systemic importance. (pp. 6-7)
Item 37, proposed paragraph 912BE(2)(a), states that ASIC must be reasonably satisfied that a proposed standard is ‘adequate, effective and appropriate … including by being reasonably proportionate for differences in the size, scale or nature of such platforms’.
Proposed paragraph 912BE(1)(c) enables ASIC to make standards in relation to ‘any matter prescribed by regulations for the purposes of this paragraph’. While not a Henry VIII clause, this could raise Scrutiny of Bills issues because it gives ASIC substantial latitude to prescribe asset-holding standards. The EM (paras 1.173-1.175) states that the power is justified, including because it would help reduce the complexity of the Act, would allow the Government to make timely changes to the framework, and would require ASIC to be satisfied of several matters before making a standard.
Treatment of wrapped tokens
The Bill clarifies the treatment of ‘wrapped’ digital tokens under the financial services law. According to OSL.com:
Wrapped tokens are digital assets that represent another cryptocurrency on a different blockchain … For example, a Bitcoin cannot be directly used on the Ethereum blockchain because these two networks have different architectures. However, a wrapped token can solve this issue by creating a tokenised version of Bitcoin that operates on the Ethereum network.
Item 3, proposed section 765E would define wrapped token as a digital token that confers a right (the ‘redemption right’) to redeem, or direct the delivery of, specific things defined as ‘related assets’. The redemption right must be disregarded when determining whether it should be classified as a financial product. However, this rule does not apply if:
the related asset is a financial product and the person who possesses the token does not have rights or interests equivalent to holding the asset directly, or
the regulations specify otherwise.
According to law firm Hall & Wilcox, this means that ‘wrapped‘ tokens will not, for example, be treated as derivatives or managed investment schemes solely on the basis of containing a redemption feature.
Also, ASIC has registered ASIC Corporations (Stablecoin and Wrapped Token) Instrument 2025/867, providing temporary regulatory relief from the AFSL requirement for distributors of eligible stablecoins and eligible wrapped tokens.
Decentralised platforms
Decentralized Autonomous Organisations (DAOs) (digital entities operating through blockchain technology) and decentralised platforms often have no central legal entity or identifiable owner. Governance is distributed among token holders, who may be pseudonymous and globally dispersed. This makes it hard for regulators (including ASIC) to determine who is responsible for compliance or liable for breaches.
The LCA stated:
As for decentralised cryptocurrency exchange (DEx) platforms, we assume the intent is that they be outside the regime altogether. We believe such an outcome would be appropriate, both as being in line with the approaches taken in major jurisdictions such as the European Union, and also in light of the difficulty of addressing and enforcing against entities that may be operating as unincorporated businesses. (p. 2)
However, example 1.17 in the EM (p. 23) indicates that DAOs are intended to be covered. In the example, one hundred people each hold a key to a smart-contract wallet containing digital tokens worth $10,000, with each person having contributed $100 worth of digital tokens. The wallet requires 51 keys to authorise any transfer. It stated: ‘each of the 100 key holders is capable of controlling (and therefore possesses) the tokens contingent on cooperation with 50 other persons.’
INFO 225 makes clear ASIC’s view the laws apply whether arrangements are decentralised or not. However, traditional enforcement mechanisms rely on serving legal process to a company or its directors. DAOs lack a registered office, directors, or physical presence, complicating service of process and jurisdiction. Therefore, ASIC may find enforcement challenging.
Offshore enforcement
Elements of the Bill rely on the power under section 51(xx) of the Constitution in relation to ‘foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth’. As explained in ASIC Regulatory Guide 121 Doing financial services business in Australia (RG 121) (pp. 14-17), ASIC’s enforcement powers apply primarily to entities ‘carrying on business in Australia’ or ‘inducing’ people in Australia to use their services (section 911D of the Corporations Act).
ASIC’s view in INFO 225 is that:
The use of offshore or decentralised structures does not mean that key obligations under Australian laws do not apply or can be ignored: see Regulatory Guide 121 Doing financial services business in Australia (RG 121). Australian laws apply where the digital asset is promoted or sold, or services are provided in relation to them, in Australia, including from offshore. We encourage entities to build their products and services in a way that complies with the intention of the laws in place to safeguard consumers and the integrity of financial markets in Australia.
Cross-border enforcement is likely to be an issue under the proposed law. The Bill does not create new international enforcement mechanisms. According to DECA ‘The Bill … lacks provisions for supervisory cooperation or substituted compliance with equivalent foreign regimes, which could undermine Australia’s global competitiveness and alignment with international best practice.’ (p. 10)
In the absence of a local presence or local assets, ASIC will need to rely on mutual assistance treaties and cooperation with foreign regulators, and existing frameworks like International Organization of Securities Commissions (IOSCO) agreements for information sharing. As indicated by law firm Walkers Global, fragmented global rules may create jurisdictional arbitrage opportunities as firms choose to relocate to low-regulation jurisdictions.
Licensing of crypto advice
As noted above, digital assets,such as cryptocurrencies, tokens, and tokenised assets,may (or may not) qualify as financial products. This will affect whether financial advice can be provided by a licensed financial adviser.
Swyftx suggested that the ‘financialised functions’ of token trading and token staking be considered a ‘financial service’ that can be provided through a single facility (originally known as a digital asset facility (DAF)). It argued this could also be structured to address the gap in relation to financial advice. It stated:
At present, the Proposal would permit licensed financial advice providers to provide advice in relation to DAFs, but not digital assets, themselves (unless a particular digital asset was determined to be a financial product). In other words, a licensed financial advisor could provide advice in relation to Swyftx and our competitors, but not in relation to whether to invest in Bitcoin or Ethereum … Our discussions with customers and financial planners are that, overwhelmingly people want advice on the digital assets, themselves, not exclusively where they should have their digital assets held. Similarly, there is a section of the financial planning market that wants to provide advice in relation to digital asset investments, but they want the certainty that they will be covered when doing so. (pp. 5‑6).
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An Act to amend the law relating to corporations and financial services, and for related purposes
[Assented to 8 April 2026]
The Parliament of Australia enacts:
1 Short title
This Act is the Corporations Amendment (Digital Assets Framework) Act 2026.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
The whole of this Act
The day after the end of the period of 12 months beginning on the day this Act receives the Royal Assent.
8 April 2027
Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
3 Schedules
Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1,Digital asset platforms and tokenised custody platforms
Part 1,Core concepts
Division 1,Main amendments
Corporations Act 2001
1 After section 761GA
Insert:
761GB Meaning of digital token
(1) A digital token is:
(a) an electronic record that one or more persons are capable of factually controlling as described in subsection (2); or
(b) an electronic record prescribed by regulations made for the purposes of this paragraph;
but does not include an electronic record that, under the regulations, is prescribed not to be a digital token.
Note: The regulations may prescribe a class of electronic record (see subsection 13(3) of the Legislation Act 2003).
When a person is capable of factually controlling an electronic record
(2) A person is capable of factually controlling an electronic record if the person can (whether alone or jointly with one or more other persons):
(a) transfer the electronic record; and
(b) exclude one or more other persons from transferring the electronic record; and
(c) demonstrate that the person can do the things in paragraphs (a) and (b).
Note: A person who can do all of these things possesses the digital token (see paragraph 86(2)(a)).
(3) In working out whether a person can do a thing in paragraph (2)(a), (b) or (c):
(a) it only matters what the person can do as a matter of fact rather than law; and
(b) it does not matter if another person can also do that thing.
Note 1: An example of when an electronic record is a digital token is if:
(a) the electronic record is created by a payment provider on a distributed ledger to identify a person entitled to withdraw money; and
(b) the person transfers the money by transferring the electronic record to another person, who the provider then recognises as entitled to withdraw the money.
Note 2: An example of when an electronic record is a digital token is if:
(a) the electronic record is created by a custodian on a distributed ledger to identify a person with beneficial ownership of property; and
(b) the person transfers the property by transferring the electronic record to another person, who the provider then recognises as a beneficial owner of the property.
Note 3: An example of when an electronic record is not a digital token is if:
(a) the electronic record is in a ledger maintained by a bank to record a specific account holder’s balance of money that can be withdrawn; and
(b) a transfer of money is effected by the bank altering the electronic record to reflect an updated balance, but not by transferring the electronic record itself.
Note 4: An example of when an electronic record is not a digital token is if:
(a) the electronic record is in a database maintained by a custodian to identify a client with beneficial ownership of property; and
(b) a transfer of the property is effected by the custodian altering the electronic record to reflect the new beneficial owner, but not by transferring the electronic record itself.
761GC Meaning of digital asset platform
(1) A digital asset platform is a facility under which:
(a) a person (the operator) possesses one or more digital tokens (the underlying assets); and
(b) the underlying assets are so possessed for or on behalf of another person, including by the operator:
(i) acting as trustee or bailee; or
(ii) being obliged to ensure that the underlying assets are dealt with on the instructions of the other person.
Note 1: Paragraph (a) can be satisfied if an agent of the operator possesses the underlying assets, because the operator is taken to have done anything that the agent does (see subsection 761GE(2)).
Note 2: The operator is the issuer of the platform (see section 761E).
(2) For the purposes of paragraph (1)(b), the other person must be a client under the facility or a nominee of such a client.
(3) The facility may also authorise the operator or one or more other persons to engage in conduct:
(a) in relation to an underlying asset; and
(b) for or on behalf of the client or the client nominee.
(4) Despite subsection (1), a tokenised custody platform cannot be a digital asset platform.
761GD Meaning of tokenised custody platform
(1) A tokenised custody platform is a facility under which:
(a) a person (the operator) identifies one or more assets other than money (the underlying assets); and
(b) for each underlying asset:
(i) the operator creates a single digital token; and
(ii) possessing the digital token confers a right to redeem, or direct the delivery of, the underlying asset; and
(c) the operator holds each underlying asset; and
(d) each underlying asset is so held for or on behalf of another person who possesses the digital token for the underlying asset, including by the operator:
(i) acting as trustee or bailee; or
(ii) being obliged to ensure that the underlying asset is dealt with on the instructions of the other person.
Note 1: Paragraph (c) can be satisfied if an agent of the operator holds the underlying asset, because the operator is taken to have done anything that the agent does (see subsection 761GE(2)).
Note 2: The operator is the issuer of the platform (see section 761E).
(2) The facility may also authorise the operator or one or more other persons to engage in conduct in relation to an underlying asset for, or on behalf of, a person who:
(a) possesses the digital token for the underlying asset; and
(b) is a client under the facility.
Note: If a person is not the first to possess a digital token, merely possessing the digital token does not make the person a client under the facility. For a facility that is an arrangement, the person would need to enter into the arrangement as a client under the facility (see item 5 of the table in subsection 761E(3)).
(3) In this section:
holds: for a digital token, a person holds the digital token if the person possesses the digital token.
761GE Agents appointed by operators of digital asset platforms or tokenised custody platforms
(1) This section applies if the operator of a facility appoints an agent to do anything that the operator is authorised to do in connection with the facility.
(2) For the purposes of determining:
(a) whether the facility is a digital asset platform or a tokenised custody platform; and
(b) if the facility is a digital asset platform or a tokenised custody platform:
(i) whether there is a liability to a client under the facility; or
(ii) whether this Act has been complied with for the facility; or
(iii) whether the platform rules of the facility have been complied with; or
(iv) whether the asset‑holding standards or the transactional and settlement standards have been complied with for the facility;
the operator is taken to have done (or failed to do) anything that the agent has done (or failed to do) because of the appointment, even if the agent was acting fraudulently or outside the scope of the agent’s authority.
(3) An agent appointed by:
(a) an agent appointed by the operator as described in subsection (1); or
(b) a person who is taken under this subsection to be an agent of the operator;
to do anything that the operator is authorised to do in connection with the facility is taken to be an agent appointed by the operator to do that thing for the purposes of subsections (1) and (2).
2 After paragraph 764A(1)(l)
Insert:
(la) a digital asset platform, unless the platform is a managed investment scheme;
(lb) a tokenised custody platform, unless the platform is a managed investment scheme;
3 At the end of Division 3 of Part 7.1
Add:
Subdivision E,Related matters
765E Disregard redemption rights when working out whether wrapped tokens etc. are financial products
(1) In this section, a digital token is a wrapped token if possessing the digital token confers a right (the redemption right) to redeem, or direct the delivery of, one of the following (the related asset):
(a) an underlying asset of a tokenised custody platform;
(b) a digital token held through:
(i) decentralised wrapping software; or
(ii) public digital token infrastructure;
(c) an asset of a kind prescribed by regulations made for the purposes of this paragraph.
Disregard the redemption right when working out whether the wrapped token etc. is a financial product
(2) Disregard the redemption right when working out whether the wrapped token is, or whether rights or interests attached to the wrapped token are, a financial product.
(3) However, subsection (2) does not apply if:
(a) where the related asset is a financial product,a person who possesses the wrapped token has rights or interests that are not equivalent to those the person would have if the person held the related asset directly; or
(b) circumstances prescribed by regulations made for the purposes of this paragraph apply for the wrapped token.
Definitions
(4) In this section:
decentralised wrapping software, for a wrapped token, means software:
(a) through which the wrapped token’s related asset is held; and
(b) that would be a tokenised custody platform if the following things done by the software were instead done by an operator (within the meaning of subsection 761GD(1)):
(i) creating the wrapped token;
(ii) holding the related asset for or on behalf of the person who possesses the wrapped token.
holds: for a digital token, a person holds the digital token if the person possesses the digital token.
4 Division 4 of Part 7.1 (after the heading)
Insert:
Subdivision A,General meanings
5 After paragraph 766C(1)(c)
Insert:
(ca) in relation to a digital asset platform or a tokenised custody platform,any conduct of a client under the platform (after the platform has been issued to the client);
6 At the end of subsection 766C(1)
Add:
Note: Paragraph (ca) covers conduct of a client under the platform on behalf of the client’s own customers. In contrast, conduct of the client under the platform for the client’s internal purposes is not a dealing in the platform (see subsection (3)).
7 Subsection 766D(2)
Repeal the subsection, substitute:
(2) Paragraph (1)(a) does not apply to a person stating prices at which the person proposes to acquire or dispose of financial products if:
(a) the person is the issuer of the products, and the products are:
(i) superannuation products; or
(ii) managed investment products; or
(iii) financial products referred to in paragraph 764A(1)(ba) (which relates to certain managed investment schemes that are not registered schemes); or
(iv) foreign passport fund products; or
(b) the person is the issuer of a tokenised custody platform, and the person is stating prices for the purposes of holding, redeeming or directing the delivery of the financial products under the platform.
8 After paragraph 766E(3)(ca)
Insert:
(cb) dealing in a digital asset platform, or the possessing of digital tokens under such a platform;
(cc) dealing in a tokenised custody platform, or the holding (within the meaning of section 761GD) of assets under such a platform;
9 At the end of Division 4 of Part 7.1
Add:
Subdivision B,Specific limitations
766K Conduct relating to certain platforms is a financial service only if engaged in by, or on behalf of, a constitutionally‑covered corporation
Despite anything in Subdivision A, conduct that:
(a) relates to a digital asset platform, or a tokenised custody platform, that is a financial product only because of paragraph 764A(1)(la) or (lb); and
(b) would, apart from this section, be a financial service (or a kind of financial service);
is a financial service (or a kind of financial service) only if the conduct is engaged in by, or on behalf of, a constitutionally‑covered corporation.
Note: Dealing in a financial product is an example of a kind of financial service (see section 766A).
Subdivision C,Related matters
766M Certain services must be provided by constitutionally‑covered corporations
Person providing service directly, and not through a representative etc.
(1) A person contravenes this section if:
(a) the person is providing a service (the applicable service), but not as an agent or representative of any other person; and
(b) the person uses a postal, telegraphic, telephonic or other like service (within the meaning of paragraph 51(v) of the Constitution) to provide all or part of the applicable service; and
(c) the applicable service would be a financial service involving:
(i) providing financial product advice relating to a digital asset platform or a tokenised custody platform; or
(ii) dealing in a digital asset platform or a tokenised custody platform; or
(iii) engaging in conduct relating to a digital asset platform, or a tokenised custody platform, that is conduct of a kind prescribed for the purposes of paragraph 766A(1)(f);
if the person were a constitutionally‑covered corporation; and
(d) the person is not a constitutionally‑covered corporation.
Note: This section is a civil penalty provision (see section 1317E).
Person providing service through a representative etc.
(2) A person contravenes this section if:
(a) another person is providing a service (the applicable service) as an agent or representative of the first‑mentioned person; and
(b) the other person uses a postal, telegraphic, telephonic or other like service (within the meaning of paragraph 51(v) of the Constitution) to provide all or part of the applicable service; and
(c) the applicable service would be a financial service involving:
(i) providing financial product advice relating to a digital asset platform or a tokenised custody platform; or
(ii) dealing in a digital asset platform or a tokenised custody platform; or
(iii) engaging in conduct relating to a digital asset platform, or a tokenised custody platform, that is conduct of a kind prescribed for the purposes of paragraph 766A(1)(f);
if the first‑mentioned person were a constitutionally‑covered corporation; and
(d) the first‑mentioned person is not a constitutionally‑covered corporation.
Note: This section is a civil penalty provision (see section 1317E).
10 Division 5 of Part 7.1 (after the heading)
Insert:
Subdivision A,General meaning
11 At the end of subsection 767A(1)
Add:
Note 1: A facility covered by the definition of digital asset platform can be a financial market in either or both of the following ways:
(a) if this subsection applies to it;
(b) if it is declared under subsection 767B(1), in which case it is a financial market to the extent that the facility relates to the digital tokens specified in the declaration (see subsection (6) of this section).
Note 2: If a facility is covered by the definitions of digital asset platform and financial market, the facility is not a financial product to the extent that the facility is a financial market (see section 762B and subparagraph 765A(1)(l)(i)).
12 At the end of subsection 767A(2)
Add:
Note: For further exemptions, see Subdivision C.
13 At the end of section 767A
Add:
Digital asset platforms
(6) If a declaration is in force under subsection 767B(1) for a digital asset platform in relation to one or more classes of digital tokens:
(a) the platform is a financial market to the extent that the platform relates to the digital tokens; and
(b) for the purposes of provisions regulating the platform as a financial market, the digital tokens are financial products to the extent that the digital tokens are related to the platform.
14 After section 767A
Insert:
Subdivision B,Extensions to the meaning of financial market
767B Extension,certain digital asset platforms providing a market for digital tokens that are not financial products
Minister may extend the meaning of financial market
(1) The Minister may, by legislative instrument, declare that a digital asset platform is a financial market if:
(a) the platform would be a facility to which subsection 767A(1) applies in relation to one or more specified classes of digital tokens if those digital tokens were financial products; and
(b) the platform is operated by, or on behalf of, a constitutionally‑covered corporation.
Note 1: While the declaration is in force, the platform is a financial market to the extent that it relates to the digital tokens (see subsection 767A(6)).
Note 2: In making a declaration, the Minister must have regard to the matters in subsection (5).
Note 3: The declaration may declare a class of digital asset platforms (see subsection 13(3) of the Legislation Act 2003).
(2) The declaration may apply:
(a) unconditionally or subject to specified conditions; and
(b) for a specified period or indefinitely (the extension duration).
Varying or revoking an extension
(3) The Minister may, at any time by legislative instrument:
(a) vary a declaration given under subsection (1) to:
(i) impose conditions, or additional conditions, on the declaration; or
(ii) vary or revoke any of the conditions on the declaration; or
(iii) extend or shorten the extension duration (including as affected by any variation from a previous operation of this subparagraph); or
(b) revoke a declaration given under subsection (1).
(4) However, the Minister may only take action under subsection (3) after:
(a) giving notice, and an opportunity to make submissions on the proposed action, to the operator of each facility known by the Minister to be covered by the declaration; and
(b) both:
(i) the Minister has caused a notice to be published on ASIC’s website allowing a reasonable period within which the operator of each facility covered by the declaration may make submissions on the proposed action; and
(ii) that period has ended; and
(c) having regard to the matters in paragraphs (1)(a) and (b) and (5)(a) to (e).
Matters relevant to giving an extension etc.
(5) In considering whether to make a declaration under subsection (1), the Minister must have regard to the following:
(a) the likely effect on the Australian economy, and on the efficiency, integrity and stability of the Australian financial system;
(b) any impact on competition in the operation of financial markets or on the provision of digital asset platforms;
(c) the likely regulatory impact;
(d) whether each facility that could be covered by the declaration has a material connection with this jurisdiction;
(e) any relevant advice the Minister has received under subsection (6).
The Minister may also have regard to any other matters that the Minister considers relevant.
Regulators may advise the Minister
(6) ASIC, APRA, the Reserve Bank or AUSTRAC may (on its own initiative) and must (at the request of the Minister):
(a) consider whether a declaration should be made, varied or revoked under this section; and
(b) advise the Minister accordingly.
Subdivision C,Exemptions to the meaning of financial market
767C Exemption,certain digital asset platforms are not financial markets for certain financial products
Minister may exempt certain digital asset platforms from the meaning of financial market
(1) The Minister may, by legislative instrument, declare that a digital asset platform is not a financial market in relation to one or more specified financial products.
Note 1: In making a declaration, the Minister must have regard to the matters in subsection (5).
Note 2: The declaration may declare one or more classes of digital asset platforms or specify one or more classes of financial products (see subsection 13(3) of the Legislation Act 2003).
(2) The declaration may apply:
(a) unconditionally or subject to specified conditions; and
(b) for a specified period or indefinitely (the exemption duration);
and applies despite anything in Subdivision A or B.
Varying or revoking an extension
(3) The Minister may, at any time by legislative instrument:
(a) vary a declaration given under subsection (1) to:
(i) impose conditions, or additional conditions, on the declaration; or
(ii) vary or revoke any of the conditions on the declaration; or
(iii) extend or shorten the exemption duration (including as affected by any variation from a previous operation of this subparagraph); or
(b) revoke a declaration given under subsection (1).
(4) However, the Minister may only take action under subsection (3) after:
(a) giving notice, and an opportunity to make submissions on the proposed action, to the operator of each platform known by the Minister to be covered by the declaration; and
(b) both:
(i) the Minister has caused a notice to be published on ASIC’s website allowing a reasonable period within which the operator of each platform covered by the declaration may make submissions on the proposed action; and
(ii) that period has ended; and
(c) having regard to the matters in paragraphs (5)(a) to (d).
Matters relevant to giving an exemption etc.
(5) In considering whether to make a declaration under subsection (1), the Minister must have regard to the following:
(a) the likely effect on the Australian economy, and on the efficiency, integrity and stability of the Australian financial system;
(b) any impact on competition in the operation of financial markets or on the provision of digital asset platforms;
(c) the likely regulatory impact;
(d) any relevant advice the Minister has received under subsection (6).
The Minister may also have regard to any other matters that the Minister considers relevant.
Regulators may advise the Minister
(6) ASIC, APRA, the Reserve Bank or AUSTRAC may (on its own initiative) and must (at the request of the Minister):
(a) consider whether a declaration should be made, varied or revoked under this section; and
(b) advise the Minister accordingly.
15 Division 6 of Part 7.1 (after the heading)
Insert:
Subdivision A,General meaning
16 At the end of subsection 768A(1) (after the examples)
Add:
Note 1: A facility covered by the definition of digital asset platform can be a clearing and settlement facility in either or both of the following ways:
(a) if this subsection applies to it;
(b) if it is declared under subsection 768B(1), in which case it is a clearing and settlement facility to the extent that the facility relates to the digital tokens specified in the declaration (see subsection (5) of this section).
Note 2: If a facility is covered by the definitions of digital asset platform and clearing and settlement facility, the facility is not a financial product to the extent that the facility is a clearing and settlement facility (see section 762B and subparagraph 765A(1)(l)(ii)).
17 At the end of subsection 768A(2)
Add:
Note: For further exemptions, see Subdivision C.
18 At the end of section 768A
Add:
Digital asset platforms
(5) If a declaration is in force under subsection 768B(1) for a digital asset platform in relation to one or more classes of digital tokens:
(a) the platform is a clearing and settlement facility to the extent that the platform relates to the digital tokens; and
(b) for the purposes of provisions regulating the platform as a clearing and settlement facility, the digital tokens are financial products to the extent that the digital tokens are related to the platform.
19 After section 768A
Insert:
Subdivision B,Extensions to the meaning of clearing and settlement facility
768B Extension,certain digital asset platforms providing a clearing and settlement mechanism for digital tokens that are not financial products
Minister may extend the meaning of clearing and settlement facility
(1) The Minister may, by legislative instrument, declare that a digital asset platform is a clearing and settlement facility if:
(a) the platform would be a facility to which subsection 768A(1) applies in relation to one or more specified classes of digital tokens if those digital tokens were financial products; and
(b) the platform is operated by, or on behalf of, a constitutionally‑covered corporation.
Note 1: While the declaration is in force, the platform is a clearing and settlement facility to the extent that it relates to the digital tokens (see subsection 768A(5)).
Note 2: In making a declaration, the Minister must have regard to the matters in subsection (5).
Note 3: The declaration may declare a class of digital asset platforms (see subsection 13(3) of the Legislation Act 2003).
(2) The declaration may apply:
(a) unconditionally or subject to specified conditions; and
(b) for a specified period or indefinitely (the extension duration).
Varying or revoking an extension
(3) The Minister may, at any time by legislative instrument:
(a) vary a declaration given under subsection (1) to:
(i) impose conditions, or additional conditions, on the declaration; or
(ii) vary or revoke any of the conditions on the declaration; or
(iii) extend or shorten the extension duration (including as affected by any variation from a previous operation of this subparagraph); or
(b) revoke a declaration given under subsection (1).
(4) However, the Minister may only take action under subsection (3) after:
(a) giving notice, and an opportunity to make submissions on the proposed action, to the operator of each facility known by the Minister to be covered by the declaration; and
(b) both:
(i) the Minister has caused a notice to be published on ASIC’s website allowing a reasonable period within which the operator of each facility covered by the declaration may make submissions on the proposed action; and
(ii) that period has ended; and
(c) having regard to the matters in paragraphs (1)(a) and (b) and (5)(a) to (e).
Matters relevant to giving an extension etc.
(5) In considering whether to make a declaration under subsection (1), the Minister must have regard to the following:
(a) the likely effect on the Australian economy, and on the efficiency, integrity and stability of the Australian financial system;
(b) any impact on competition in the operation of clearing and settlement facilities or on the provision of digital asset platforms;
(c) the likely regulatory impact;
(d) whether each facility that could be covered by the declaration has a material connection with this jurisdiction;
(e) any relevant advice the Minister has received under subsection (6).
The Minister may also have regard to any other matters that the Minister considers relevant.
Regulators may advise the Minister
(6) ASIC, APRA, the Reserve Bank or AUSTRAC may (on its own initiative) and must (at the request of the Minister):
(a) consider whether a declaration should be made, varied or revoked under this section; and
(b) advise the Minister accordingly.
Subdivision C,Exemptions to the meaning of clearing and settlement facility
768C Exemption,certain digital asset platforms are not clearing and settlement facilities for certain financial products
Minister may exempt certain digital asset platforms from the meaning of clearing and settlement facility
(1) The Minister may, by legislative instrument, declare that a digital asset platform is not a clearing and settlement facility in relation to one or more specified financial products.
Note 1: In making a declaration, the Minister must have regard to the matters in subsection (5).
Note 2: The declaration may declare one or more classes of digital asset platforms or specify one or more classes of financial products (see subsection 13(3) of the Legislation Act 2003).
(2) The declaration may apply:
(a) unconditionally or subject to specified conditions; and
(b) for a specified period or indefinitely (the exemption duration);
and applies despite anything in Subdivision A or B.
Varying or revoking an extension
(3) The Minister may, at any time by legislative instrument:
(a) vary a declaration given under subsection (1) to:
(i) impose conditions, or additional conditions, on the declaration; or
(ii) vary or revoke any of the conditions on the declaration; or
(iii) extend or shorten the exemption duration (including as affected by any variation from a previous operation of this subparagraph); or
(b) revoke a declaration given under subsection (1).
(4) However, the Minister may only take action under subsection (3) after:
(a) giving notice, and an opportunity to make submissions on the proposed action, to the operator of each platform known by the Minister to be covered by the declaration; and
(b) both:
(i) the Minister has caused a notice to be published on ASIC’s website allowing a reasonable period within which the operator of each platform covered by the declaration may make submissions on the proposed action; and
(ii) that period has ended; and
(c) having regard to the matters in paragraphs (5)(a) to (d).
Matters relevant to giving an exemption etc.
(5) In considering whether to make a declaration under subsection (1), the Minister must have regard to the following:
(a) the likely effect on the Australian economy, and on the efficiency, integrity and stability of the Australian financial system;
(b) any impact on competition in the operation of clearing and settlement facilities or on the provision of digital asset platforms;
(c) the likely regulatory impact;
(d) any relevant advice the Minister has received under subsection (6).
The Minister may also have regard to any other matters that the Minister considers relevant.
Regulators may advise the Minister
(6) ASIC, APRA, the Reserve Bank or AUSTRAC may (on its own initiative) and must (at the request of the Minister):
(a) consider whether a declaration should be made, varied or revoked under this section; and
(b) advise the Minister accordingly.
Division 2,Related amendments
Corporations Act 2001
20 Section 9
Insert:
AUSTRAC means the Australian Transaction Reports and Analysis Centre.
21 Section 9 (paragraph (a) of the definition of clearing and settlement facility)
Omit “section 768A”, substitute “Division 6 of Part 7.1”.
22 Section 9 (after paragraph (d) of the definition of client)
Insert:
(e) under a digital asset platform,means a person who is a client under the platform as described in item 5 of the table in subsection 761E(3); and
(f) under a tokenised custody platform,means a person who is a client under the platform as described in item 5 of the table in subsection 761E(3).
23 Section 9
Insert:
constitutionally‑covered corporation means:
(a) a corporation to which paragraph 51(xx) of the Constitution applies; or
(b) a body that is a corporation within the meaning of this Act as originally enacted (see section 57A).
24 Section 9 (definition of custodian)
Repeal the definition, substitute:
custodian:
(a) of a digital asset platform,means a person who possesses an underlying asset of the platform; or
(b) of a tokenised custody platform,means a person who holds (within the meaning of section 761GD) an underlying asset of the platform; or
(c) in relation to a registrable superannuation entity,has the same meaning as in the Superannuation Industry (Supervision) Act 1993.
25 Section 9
Insert:
digital asset platform has the meaning given by section 761GC.
digital token has the meaning given by section 761GB.
26 Section 9 (definition of financial market)
Omit “section 767A”, substitute “Division 5 of Part 7.1”.
27 Section 9 (after paragraph (mb) of the definition of managed investment scheme)
Insert:
(mc) a digital asset platform if, under the platform:
(i) clients under the platform have the right to redeem, or direct the delivery of, the underlying assets of the platform; and
(ii) the operator of the platform acts only on client instructions in relation to any decisions about the acquisition, disposal or use of the underlying assets; and
(iii) the operator cannot negotiate or determine, to a material extent, any rights of the clients relating to the underlying assets;
(md) a tokenised custody platform if, under the platform:
(i) clients under the platform have the right to redeem, or direct the delivery of, the underlying assets of the platform; and
(ii) the operator of the platform acts only on client instructions in relation to any decisions about the acquisition, disposal or use of the underlying assets; and
(iii) the operator cannot negotiate or determine, to a material extent, any rights of the clients relating to the underlying assets; and
(iv) all of the underlying assets must belong to the same class of asset; and
(v) the digital token created for an underlying asset can only be divisible to the same extent that the underlying asset is reasonably capable of being divisible in a way that each part can be physically delivered;
28 Section 9 (definition of operator)
Repeal the definition, substitute:
operator:
(a) of a digital asset platform,has the meaning given by subsection 761GC(1); or
(b) of a passport fund,means the entity that is the operator of the fund under the Passport Rules for this jurisdiction; or
(c) of a tokenised custody platform,has the meaning given by subsection 761GD(1).
29 Section 9
Insert:
tokenised custody platform has the meaning given by section 761GD.
underlying asset:
(a) of a digital asset platform,has the meaning given by subsection 761GC(1); or
(b) of a tokenised custody platform,has the meaning given by paragraph 761GD(1)(a).
30 Section 86
Repeal the section, substitute:
86 Meaning of possession
General (things other than digital tokens)
(1) A thing that is in a person’s custody or under a person’s control is in the person’s possession.
Digital tokens
(2) However, a person possesses a digital token if:
(a) for an electronic record that is a digital token because of paragraph 761GB(1)(a),the person is capable of factually controlling the electronic record as described in subsection 761GB(2); or
(b) otherwise,the conditions prescribed by regulations made for the purposes of this paragraph are met for the person and the digital token;
unless, under the regulations, prescribed circumstances exist such that the person does not possess the digital token.
(3) Despite paragraph (2)(a), a person does not (jointly) possess an electronic record that is a digital token if:
(a) the person needs the express cooperation of another person in order to be able to satisfy paragraph 761GB(2)(a), (b) or (c) for the electronic record; and
(b) that other person can unilaterally satisfy that paragraph for the electronic record.
31 Subsection 761E(3) (at the end of the table)
Add:
5
a facility that is:
(a) a digital asset platform; or
(b) a tokenised custody platform
the person:
(a) if the facility is an arrangement,enters into the arrangement as a client under the facility; or
(b) otherwise,becomes a client under the facility
32 After paragraph 761E(3A)(d)
Insert:
(da) any conduct of the client under a digital asset platform or a tokenised custody platform (after the platform has been issued to the client);
33 At the end of subsection 791D(1)
Add:
; or (c) is covered by a declaration in force under subsection 767B(1) (about certain digital asset platforms).
34 At the end of subsection 820D(1)
Add:
; or (c) is covered by a declaration in force under subsection 768B(1) (about certain digital asset platforms).
35 Subsection 1317E(3) (before the table item dealing with subsection 791A(3))
Insert:
subsections 766M(1) and (2)
certain services must be provided by constitutionally‑covered corporations
uncategorised
Part 2,Australian financial service licences
Division 1,Minimum standards, platform rules and prohibitions for licensees
Corporations Act 2001
36 Section 9
Insert:
asset‑holding standards means standards in force under section 912BE.
platform rules, of a digital asset platform or tokenised custody platform, means any rules (however described) that are made by the issuer of the platform, or contained in the issuer’s constitution, and that deal with the activities or conduct of persons in relation to the platform.
Note: For the content of the rules, see section 912BG.
transactional and settlement standards means standards in force under section 912BF.
37 After Subdivision A of Division 3 of Part 7.6
Insert:
Subdivision AA,Specific obligations for financial services businesses involving certain platforms
912BA Scope of this Subdivision
This Subdivision applies in relation to:
(a) a financial services licensee; and
(b) a digital asset platform or a tokenised custody platform;
to the extent that one or more of the financial services authorised by the licence relate to the issuing of the platform.
912BB Compliance with standards
The licensee must comply with the following standards to the extent that the standards relate to the financial services:
(a) the asset‑holding standards;
(b) the transactional and settlement standards.
Note 1: This section is a civil penalty provision (see section 1317E).
Note 2: For the making of these standards, see sections 912BE and 912BF.
912BC Having adequate platform rules
The licensee must have platform rules for the platform that comply with subsection 912BG(1).
Note: This section is a civil penalty provision (see section 1317E).
912BD Compliance with declaration prohibiting transactions etc. involving certain financial products through certain platforms
The licensee must comply with a prohibition in force under section 912BH relating to the financial services and the platform.
Note: This section is a civil penalty provision (see section 1317E).
912BE Asset‑holding standards
(1) ASIC may, by legislative instrument, make standards (the asset‑holding standards) that deal with the following in relation to each digital asset platform or tokenised custody platform issued by one or more financial services licensees:
(a) the activities or conduct of the licensees, or of the authorised representatives of the licensees, in relation to:
(i) possessing and safeguarding the underlying assets of the platforms; or
(ii) recordkeeping, reconciliation and reporting for the underlying assets of the platforms; or
(iii) using the underlying assets of the platforms;
(b) the provision by the licensees of supplementary services relating to the underlying assets of the platforms, including services concerning fund accounting, compliance monitoring, performance reporting, and tax;
(c) any matter prescribed by regulations made for the purposes of this paragraph.
Note 1: An asset includes a right (see section 9AB).
Note 2: Different standards may apply to different classes of assets (see subsection 33(3A) of the Acts Interpretation Act 1901).
(2) In considering whether to make a standard under subsection (1), ASIC must be reasonably satisfied that the proposed standard:
(a) is adequate, effective and appropriate for all digital asset platforms and tokenised custody platforms, including by being reasonably proportionate for differences in the size, scale or nature of such platforms; and
(b) requires any money held under a digital asset platform or tokenised custody platform (that is not an underlying asset of the platform) to be held in trust for, or on behalf of, a client under the platform; and
(c) provides to the operator of:
(i) a digital asset platform; or
(ii) a tokenised custody platform;
options for holding money for or on behalf of a client under the platform, to assist the operator to mitigate the impacts of a bank refusing to provide services ordinarily provided by a bank; and
(d) does not prohibit a licensee who issues a digital asset platform or tokenised custody platform from:
(i) providing particular services; or
(ii) arranging for particular services to be provided;
to clients under the platform; and
(e) does not prohibit a licensee who issues a digital asset platform, or a tokenised custody platform, from possessing digital tokens under the platform:
(i) in one address or location on public digital token infrastructure or similar infrastructure; or
(ii) in one wallet;
if the licensee’s internal accounting system identifies the digital tokens as the client’s; and
(f) includes any requirement or limitation, or achieves any outcome, prescribed by the regulations for the purposes of this paragraph.
912BF Transactional and settlement standards
(1) ASIC may, by legislative instrument, make standards (the transactional and settlement standards) dealing with:
(a) the conduct of persons in relation to the underlying assets of:
(i) digital asset platforms; or
(ii) tokenised custody platforms;
issued by financial services licensees; and
(b) any matter prescribed by regulations made for the purposes of this paragraph.
(2) For the purposes of (but without limiting) subsection (1), the conduct the standards can deal with includes the following:
(a) facilitating acquisitions, disposals, encumbrances or settlements of the underlying assets of a digital asset platform or tokenised custody platform;
(b) matched principal trading and other execution models that involve the intermediary facilitation of such transactions;
(c) handling, prioritising and executing the instructions of a client under such a platform (including across different business models such as market operation, market making, liquidity provision, brokerage, or dealing);
(d) the conduct of persons engaged by the issuer of such a platform in relation to the performance of a function in any of the above paragraphs (including the conduct of authorised representatives, agents and subcontractors).
(3) In considering whether to make a standard under subsection (1), ASIC must be reasonably satisfied that the proposed standard:
(a) is adequate, effective and appropriate for all digital asset platforms and tokenised custody platforms, including by being reasonably proportionate for differences in the size, scale or nature of such platforms; and
(b) allows for a client under such a platform to direct the exercise, for or on the client’s behalf, of specified rights that:
(i) relate to the underlying assets of the platform; and
(ii) are provided under the platform; and
(c) does not prevent the issuer of such a platform from sourcing liquidity from platforms operating:
(i) outside of this jurisdiction; and
(ii) with or without a licence under this Act; and
(d) requires the issuer of such a platform to:
(i) enter into an enforceable written arrangement with each person providing liquidity to, or pursuing market‑making strategies through, the platform; and
(ii) monitor the activities or conduct of that person under the arrangement; and
(iii) enforce the arrangement; and
(e) includes any requirement or limitation, or achieves any outcome, prescribed by the regulations for the purposes of this paragraph.
912BG Platform rules of a digital asset platform or tokenised custody platform
Content of the platform rules
(1) The platform rules of a digital asset platform or tokenised custody platform issued by a financial services licensee must include:
(a) transparent and non‑discriminatory eligibility criteria for identifying who can become a client under the platform; and
(b) any ongoing obligations of a client under the platform; and
(c) the method (the settlement method) for executing client instructions to execute and settle transactions involving the acquisition or disposal of underlying assets of the platform; and
(d) a requirement for the licensee to disclose to a potential client under the platform:
(i) the settlement method for transactions involving the acquisition or disposal of underlying assets of the platform; and
(ii) whether external liquidity sources will be used in relation to such transactions and, if so, the extent to which the licensee remains responsible for the execution and settlement of such transactions; and
(iii) who bears any counterparty or operational risk during execution and settlement of such transactions; and
(iv) how any changes to the settlement method will be communicated to clients; and
(v) whether and how a client’s acquisition of an underlying asset of the platform will be recorded in any legal or technical register; and
(vi) any other matter prescribed by the regulations for the purposes of this subparagraph; and
(e) information about the types of assets that are or will be available as underlying assets of the platform; and
(f) the method for how the licensee, or any custodian of the platform, will determine what assets are or will be available as underlying assets of the platform; and
(g) the arrangements for depositing, redeeming and directing the delivery of underlying assets in their actual form (rather than their money’s worth); and
(h) any other rules prescribed by regulations made for the purposes of this subsection.
Note: The licensee must comply with this provision as it is part of the financial services law (see paragraph 912A(1)(c)).
Legal effect of the platform rules
(2) The platform rules of a digital asset platform or tokenised custody platform have effect as a contract under seal:
(a) between the licensee and each client under the platform; and
(b) if, under the platform, clients can have dealings with each other,between a client under the platform and each other client under the platform;
under which each of those persons agrees to observe the platform rules to the extent that they apply to the person and to engage in conduct that the person is required by the platform rules to engage in.
Note: A failure to comply with the platform rules may be a breach of an implied warranty (see section 12ED of the ASIC Act).
(3) However, if there is an inconsistency between the platform rules of the platform, and any of the following other instruments:
(a) the transactional and settlement standards;
(b) an instrument of a kind prescribed by the regulations for the purposes of this paragraph;
those other instruments prevail over the platform rules to the extent of the inconsistency.
912BH Prohibition by the Minister,transactions etc. involving certain financial products must not happen through digital asset platforms or tokenised custody platforms
Prohibition
(1) The Minister may, by legislative instrument, declare that conduct involving a specified financial product must not happen through:
(a) a specified digital asset platform; or
(b) a specified tokenised custody platform;
if one or more of the financial services authorised by an Australian financial services licence relate to the issuing of the platform.
Note 1: Such a licensee must comply with this prohibition (see section 912BD).
Note 2: The Minister could, for example, declare that a particular class of financial products must not be held as underlying assets of a particular digital asset platform or tokenised custody platform.
Note 3: A declaration may:
(a) declare one or more classes of conduct; or
(b) specify one or more (or all) classes of financial products or platforms;
(see subsection 13(3) of the Legislation Act 2003).
Note 4: In making a declaration, the Minister must have regard to the matters in subsection 912BI(1).
(2) The prohibition may apply:
(a) unconditionally or subject to specified conditions; and
(b) for a specified period or indefinitely (the prohibition duration).
Varying or revoking a prohibition
(3) The Minister may, at any time by legislative instrument, make a declaration:
(a) varying a prohibition declared under subsection (1) to:
(i) impose conditions, or additional conditions, on the prohibition; or
(ii) vary or revoke any of the conditions on the prohibition; or
(iii) extend or shorten the prohibition duration (including as affected by any variation from a previous operation of this subparagraph); or
(b) revoking a prohibition declared under subsection (1).
(4) However, the Minister may only take action under subsection (3) after:
(a) giving notice, and an opportunity to make submissions on the proposed action, to each financial services licensee known by the Minister to be covered by the prohibition; and
(b) both:
(i) the Minister has caused a notice to be published on ASIC’s website allowing a reasonable period within which each financial services licensee covered by the prohibition may make submissions on the proposed action; and
(ii) that period has ended.
912BI Prohibition by the Minister,matters to which the Minister has regard
(1) In considering whether to make a declaration under subsection 912BH(1) or (3) prohibiting conduct in relation to one or more financial products, the Minister must have regard to:
(a) the likely effect on the Australian economy, and on the efficiency, integrity and stability of the Australian financial system; and
(b) any impact on the provision of digital asset platforms or tokenised custody platforms (as applicable); and
(c) the likely regulatory impact; and
(d) whether the conduct or financial products have resulted, or will or are likely to result, in significant consumer detriment; and
(e) any relevant advice the Minister has received under subsection (3).
(2) The Minister may also have regard to any other matters that the Minister considers relevant.
ASIC, APRA or Reserve Bank may advise the Minister
(3) ASIC, APRA or the Reserve Bank may (on its own initiative) and must (at the request of the Minister):
(a) consider whether a declaration under subsection 912BH(1) or (3) should be made; and
(b) advise the Minister accordingly.
38 Paragraph 912D(3)(a)
Omit “or 912B”, substitute “, 912B, 912BB, 912BC or 912BD”.
39 Subsection 1317E(3) (after the table item dealing with subsection 912A(5A))
Insert:
section 912BB
complying with standards
uncategorised
section 912BC
having adequate platform rules
uncategorised
section 912BD
licensee must comply with declared prohibitions
uncategorised
Division 2,Other matters
Corporations Act 2001
40 At the end of subsection 921C(1)
Add:
; (d) the relevant financial products are digital asset platforms or tokenised custody platforms that:
(i) are financial products only because of paragraph 764A(1)(la) or (lb); and
(ii) are not operated by constitutionally‑covered corporations.
41 After subsection 926A(5)
Insert:
(5A) Despite paragraph (2)(c), a declaration under that paragraph has no effect to the extent that it relates to:
(a) a digital asset platform or a tokenised custody platform; or
(b) a platform in a class of digital asset platforms or tokenised custody platforms;
in circumstances where:
(c) a provision resulting from the declaration does not relate to the platform in connection with a financial service; and
(d) the platform:
(i) is a financial product only because of paragraph 764A(1)(la) or (lb); and
(ii) is not operated by a constitutionally‑covered corporation.
42 At the end of section 926B
Add:
(6) Despite paragraph (1)(c), a regulation made for the purposes of that paragraph has no effect to the extent that it relates to:
(a) a digital asset platform or a tokenised custody platform; or
(b) a platform in a class of digital asset platforms or tokenised custody platforms;
in circumstances where:
(c) a provision resulting from the regulation does not relate to the platform in connection with a financial service; and
(d) the platform:
(i) is a financial product only because of paragraph 764A(1)(la) or (lb); and
(ii) is not operated by a constitutionally‑covered corporation.
Part 3,Financial services disclosure, financial product disclosure, and design and distribution requirements etc.
Corporations Act 2001
43 Section 9
Insert:
DAP/TCP Guide means a guide required to be given under section 1020AN.
voting policy, for a digital asset platform or tokenised custody platform, means a policy required under section 1020AP.
44 After subsection 952E(4)
Insert:
(4A) A person does not contravene subsection (1) or (2) to the extent that the disclosure document or statement:
(a) is a Financial Services Guide, Supplementary Financial Services Guide or website disclosure information; and
(b) relates to a digital asset platform or tokenised custody platform; and
(c) is defective in a part of the disclosure document or statement:
(i) for which another financial services licensee states it is responsible in the disclosure document or statement; and
(ii) that relates to the financial services that are to be or are likely to be performed by that other financial services licensee.
Note: In criminal proceedings, a defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code.
45 At the end of section 952G
Add:
(11) A person does not contravene subsection (2), (4) or (6) to the extent that the disclosure document or statement:
(a) is a Financial Services Guide, Supplementary Financial Services Guide or website disclosure information; and
(b) relates to a digital asset platform or tokenised custody platform; and
(c) is defective in a part of the disclosure document or statement:
(i) for which another financial services licensee states it is responsible in the disclosure document or statement; and
(ii) that relates to the financial services that are to be or are likely to be performed by that other financial services licensee.
Note: In criminal proceedings, a defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code.
46 After subsection 953B(6)
Insert:
(6A) A person is not liable under subsection (2) in a situation described in paragraph (1)(b) or (ba) to the extent that the disclosure document or statement:
(a) is a Financial Services Guide, Supplementary Financial Services Guide or website disclosure information; and
(b) relates to a digital asset platform or tokenised custody platform; and
(c) is defective in a part of the disclosure document or statement:
(i) for which another financial services licensee states it is responsible in the disclosure document or statement; and
(ii) that relates to the financial services that are to be or are likely to be performed by that other financial services licensee.
47 Paragraph 994B(1)(b)
Repeal the paragraph, substitute:
(b) under Part 7.9, the person is required to prepare:
(i) a Product Disclosure Statement for the product; or
(ii) a DAP/TCP Guide for the product; or
48 Section 1010B (heading)
Repeal the heading, substitute:
1010B Part does not apply to financial products in some circumstances
49 At the end of section 1010B
Add:
Digital asset platforms and tokenised custody platforms
(3) A person who:
(a) is the operator of a digital asset platform or tokenised custody platform; or
(b) is otherwise involved in the operation or promotion of such a platform;
does not have to comply with Division 2 for a recommendation situation, an issue situation or a sale situation if the financial product for that situation is:
(c) the platform; or
(d) an equitable right or interest in another financial product arising because of a holding, or an offer to hold or arrange for the holding of, the other financial product through the platform.
Note: Disclosure obligations for these platforms are set out in Division 5D.
(4) A person does not have to comply with the designated provisions for a financial product if, because of subsection (3), the person does not have to comply with Division 2 for the financial product.
(5) In this section:
designated provisions are the following provisions of this Part:
(a) Divisions 3 to 5C (other than section 1017E);
(b) Division 6 (other than sections 1020D, 1020F and 1020G);
(c) Division 7 (other than section 1021O).
50 After Division 5C of Part 7.9
Insert:
Division 5D,Disclosure framework for digital asset platforms and tokenised custody platforms
1020AM Scope of this Division
This Division applies in relation to a digital asset platform or tokenised custody platform only if the platform is issued, or will be issued, by a financial services licensee in the course of a financial services business.
1020AN Giving a DAP/TCP Guide before issuing a platform
Giving the Guide before issuing a digital asset platform or tokenised custody platform to a person as a retail client
(1) The licensee must, before issuing a digital asset platform or tokenised custody platform to a person as a retail client under the platform, give the person a DAP/TCP Guide that:
(a) includes the information required by section 1020AO for the platform; and
(b) is written and presented in a clear, concise and effective manner.
Note 1: The Guide can consist of 2 or more documents if they are presented and given in a way that satisfies paragraphs (a) and (b).
Note 2: This subsection is a civil penalty provision (see section 1317E).
Guide is no longer accurate
(2) The licensee must not give a person a DAP/TCP Guide if the licensee becomes aware that:
(a) a material change has occurred to the information in it; or
(b) it has become misleading or deceptive or likely to mislead or deceive.
To avoid doubt, the licensee must still comply with subsection (1).
Note: This subsection is a civil penalty provision (see section 1317E).
Circumstances affecting accuracy of Guides that have been given
(3) If:
(a) the licensee gives a person a DAP/TCP Guide (the existing Guide) in accordance with subsection (1); but
(b) a new circumstance later arises so that the Guide no longer includes the information required by section 1020AO for the platform;
the licensee must, as soon as practicable after the new circumstance arises, give the person:
(c) updated information to enable the person to again readily have the information required by section 1020AO for the platform; and
(d) objective advice about whether the updated information is, when compared with the information in the existing Guide, materially adverse to a retail client under the platform.
Note 1: The updated information could take the form of a “Supplementary DAP/TCP Guide”, and could include information about how to readily access particular information on a website.
Note 2: For paragraph (b), examples of a new circumstance include the licensee becoming aware of the matters in paragraph (2)(a) or (b).
Note 3: This subsection is a civil penalty provision (see section 1317E).
1020AO Content of a DAP/TCP Guide
(1) A DAP/TCP Guide must include all information a person would reasonably require for the purposes of making a decision, as a retail client, whether to become a client under the platform, including such information that the person would reasonably require to:
(a) understand the nature of the platform and any risks associated with participation in the platform; and
(b) identify:
(i) the licensee (as the issuer of the platform); and
(ii) any custodians of the platform; and
(iii) the nature of the responsibilities of the issuer and of any custodians, and of the relationships between them; and
(c) understand the method and extent of all charges associated with the platform, including any right of the issuer or any other person to recoup expenses from a client’s assets; and
(d) understand any differences between the rights of a client under the platform and the rights of a person who (directly) holds an underlying asset of the platform, including information on any applicable:
(i) cooling‑off rights; and
(ii) voting rights; and
(iii) withdrawal rights under section 724 or 1016E; and
(e) understand how and to whom a client may make a complaint in relation to:
(i) the operation of the platform; and
(ii) the underlying assets of the platform (where this is possible); and
(iii) financial product advice provided to the client in relation to the platform that is not provided by or on behalf of the licensee; and
(f) understand a client’s rights to disclosure in relation to the underlying assets of the platform, including that a client may elect to receive copies of communications relating to those assets that:
(i) are sent to the holders of those assets; or
(ii) the holders of those assets may elect to receive; and
(g) understand how the licensee, or any custodians of the platform, determine what is or will be available as underlying assets of the platform; and
(h) understand any other matters prescribed by regulations made for the purposes of this paragraph.
(2) A DAP/TCP Guide must also include:
(a) a statement that copies of the platform’s voting policy are available free on request; and
(b) a statement to the effect that the total fees and expenses payable by a client will include the costs of the platform; and
(c) a statement to the effect that the fees and expenses for any conduct that:
(i) can be engaged in under the platform; and
(ii) is chosen by the client to be engaged in;
will be in addition to the fees charged for the platform; and
(d) examples, based on estimates, of the fees and expenses referred to in paragraphs (b) and (c), that satisfy any requirements prescribed by regulations made for the purposes of this paragraph; and
(e) anything else prescribed by regulations made for the purposes of this paragraph.
(3) Despite subsection (1), that subsection does not require a DAP/TCP Guide to include publicly‑available information, provided that the DAP/TCP Guide:
(a) refers to the information; and
(b) includes sufficient details about the information to enable a person to easily identify and locate it; and
(c) states that the information can be obtained free from the licensee on request; and
(d) if any of the information is about any significant benefits to which a person will or may become entitled under the platform,includes a summary of that information; and
(e) if any of the information is about any significant risks associated with the platform,includes a summary of those risks.
1020AP Having and administering a platform voting policy
(1) The licensee must, before issuing a digital asset platform or tokenised custody platform to a person as a retail client under the platform, ensure that there is a policy (the voting policy) for the platform that:
(a) deals with the exercise of any voting or governance rights arising for:
(i) the underlying assets of the platform; and
(ii) any other asset that is otherwise held or possessed through the platform; and
(b) includes the information required by section 1020AQ for the platform; and
(c) is written and presented in a clear, concise and effective manner.
Note: This subsection is a civil penalty provision (see section 1317E).
(2) The licensee must ensure that the voting policy:
(a) is kept accurate; and
(b) is administered for the platform by the licensee or by a custodian of the platform.
Note: This subsection is a civil penalty provision (see section 1317E).
(3) The regulations may prescribe how liability is to be dealt with for proxy voting relating to an asset of a kind covered by paragraph (1)(a).
1020AQ Content of a platform’s voting policy
A platform’s voting policy must:
(a) identify any rights a client under the platform will have in relation to any voting or governance rights arising for:
(i) each underlying asset of the platform; and
(ii) any other asset that is otherwise held or possessed through the platform;
for the client (whether directly or through a nominee); and
(b) state whether a client under the platform may instruct the licensee, or a custodian of the platform, (the authority) about the exercise of any such voting or governance rights; and
(c) if the client may give such instructions:
(i) require the authority to vote only when, and as, instructed by the client (including under a standing instruction); and
(ii) require clients to be given, as soon as practicable, copies of any relevant information received by the licensee or a custodian in relation to the assets that are the subject of the voting or governance rights; and
(iii) identify how copies of this relevant information are to be given to clients; and
(iv) identify the steps that are to be taken after voting instructions have been communicated by a client to the authority; and
(v) identify whether any costs are to be charged to the client for exercising voting or governance rights; and
(d) if the client may not give such instructions,require the authority not to exercise any such voting or governance rights; and
(e) state how any regulations made for the purposes of subsection 1020AP(3) (about proxy voting) relate to any such voting or governance rights.
1020AR Disclosure obligations for underlying assets etc. of platforms
Giving copies of communications about related assets
(1) If:
(a) a financial product, or a prescribed digital token, (the asset):
(i) is an underlying asset of a digital asset platform or tokenised custody platform; or
(ii) is otherwise held or possessed through such a platform;
for a client under the platform (whether directly or through a nominee); and
(b) communications are required by law to be given to the person who holds or possesses the asset (including communications required to be given on request);
the licensee who issues the platform must, on request, ensure the client is given a copy of such communications as soon as practicable after the communications are received by the licensee or by a custodian of the platform.
Note 1: The platform needs to be one that is issued, or will be issued, by a financial services licensee in the course of a financial services business (see section 1020AM).
Note 2: This subsection is a civil penalty provision (see section 1317E).
(2) The client’s request may be for a particular communication, or may be a standing request for one or more classes of such communications.
Disclosure requirements relating to acquisitions of prescribed digital tokens
(3) Regulations made for the purposes of this subsection may prescribe disclosure obligations before an acquisition of a prescribed digital token, by way of issue or sale, happens because of an instruction given:
(a) under a digital asset platform or tokenised custody platform; and
(b) by a client under the platform (whether directly or through a nominee).
(4) Without limiting subsection (3), such obligations could be imposed on one or more of the following:
(a) the licensee who issues the platform;
(b) a custodian of the platform;
(c) a person who is to issue or sell the prescribed digital token.
Note: The platform needs to be one that is issued, or will be issued, by a financial services licensee in the course of a financial services business (see section 1020AM).
(5) A person must comply with an obligation imposed on the person by regulations made for the purposes of subsection (3).
Note: This subsection is a civil penalty provision (see section 1317E).
Definitions
(6) In this section:
prescribed digital token means a digital token that:
(a) is not a financial product; and
(b) is of a class prescribed by regulations made for the purposes of this paragraph.
51 At the end of section 1020D
Add:
; or (c) if the acquisition occurs in circumstances in which the party is required by Division 5D to have been given a DAP/TCP Guide for the product,taken to have notice of any contract, document or matter not specifically referred to in:
(i) a DAP/TCP Guide given to the party; or
(ii) any information or advice given under subsection 1020AN(3) to the party.
52 Subsection 1317E(3) (after the table item dealing with subsection 1020A(5))
Insert:
subsection 1020AN(1)
giving a DAP/TCP guide
uncategorised
subsection 1020AN(2)
not giving a DAP/TCP guide if no longer accurate
uncategorised
subsection 1020AN(3)
giving updated information or advice
uncategorised
subsection 1020AP(1)
having a platform voting policy
uncategorised
subsection 1020AP(2)
administering an accurate platform voting policy
uncategorised
subsection 1020AR(1)
disclosing copies of communications
uncategorised
subsection 1020AR(5)
complying with disclosure obligations
uncategorised
Part 4,Product intervention orders
Corporations Act 2001
53 Section 1023B
Before “In”, insert “(1)”.
54 At the end of section 1023B
Add:
(2) However, in this Part financial product includes a digital asset platform or a tokenised custody platform only to the extent that:
(a) the platform is a financial product (within the meaning of Division 3 of Part 7.1) otherwise than because of paragraphs 764A(1)(la) and (lb); or
(b) the platform is available for acquisition by issue, or for regulated sale:
(i) by, or on behalf of, a constitutionally‑covered corporation; or
(ii) using a postal, telegraphic, telephonic or other like service (within the meaning of paragraph 51(v) of the Constitution).
Part 5,Market misconduct rules
Corporations Act 2001
55 At the end of Division 1 of Part 7.10
Add:
1040C How this Part applies in relation to digital asset platforms and tokenised custody platforms
This Part applies in relation to a digital asset platform or a tokenised custody platform only to the extent that:
(a) the platform is a financial product otherwise than because of paragraphs 764A(1)(la) and (lb); or
(b) the platform is a financial product that is issued by, or on behalf of, a constitutionally‑covered corporation; or
(c) the platform is a financial product, and that any prohibited conduct (see Division 2) engaged in in relation to the platform is engaged in:
(i) by, or on behalf of, a constitutionally‑covered corporation; or
(ii) using a postal, telegraphic, telephonic or other like service (within the meaning of paragraph 51(v) of the Constitution).
Part 6,Exemptions
Corporations Act 2001
56 Section 9
Insert:
custodial staking arrangement has the meaning given by section 9F.
57 Section 9 (before paragraph (n) of the definition of managed investment scheme)
Insert:
(me) so much of:
(i) a digital asset platform; or
(ii) a tokenised custody platform;
as relates to one or more custodial staking arrangements, if the issuer of the platform holds an Australian financial services licence authorising the provision of financial services relating to the issuing of the platform;
(mf) public digital token infrastructure;
58 Section 9
Insert:
public digital token infrastructure has the meaning given by section 9E.
59 After section 9D
Insert:
9E Meaning of public digital token infrastructure
(1) Public digital token infrastructure means any software, hardware, or combination of software or hardware, (the infrastructure):
(a) that is used for transmitting, processing, or recording:
(i) electronic records that are digital tokens; or
(ii) electronic records relating to digital tokens; and
(b) for which subsection (2) or (3) applies.
(2) This subsection applies if all of the following are satisfied for certain protocols that apply to the infrastructure:
(a) the protocols are a set of open source and publicly accessible standards for transmitting, processing and recording electronic records in a non‑discretionary manner;
(b) the protocols permit any person to contribute to the integrity, functionality and reliability of the infrastructure by conducting activities involving transmitting, processing and recording such electronic records;
(c) the protocols are not reliant on any participant having a role so critical that the transmitting, processing, or recording of such electronic records cannot happen without the participant;
(d) no regulations are made for the purposes of this paragraph to prescribe that this subsection does not apply for the protocols.
(3) This subsection applies for the infrastructure if it is prescribed by regulations made for the purposes of this subsection.
9F Meaning of custodial staking arrangement
(1) A custodial staking arrangement, for a digital asset platform or a tokenised custody platform, is an arrangement that:
(a) is entered into by the operator of the platform and by a beneficiary under the platform (whether directly or through a nominee); and
(b) is entered into through the facility that constitutes the platform; and
(c) permits the operator to allow one or more of the underlying assets possessed under the platform for the beneficiary (whether directly or through a nominee) to be used for activities (consensus activities) described in paragraph 9E(2)(b) if:
(i) the beneficiary; or
(ii) the nominee;
expressly authorises the operator to do so; and
(d) ensures that rewards from the consensus activities, after deducting any fees and charges, are passed on to the beneficiary (whether directly or through a nominee); and
(e) may benefit the beneficiary in one or more of the following ways:
(i) by allowing the underlying assets to be returned earlier than if the beneficiary had participated in consensus activities directly;
(ii) by allowing the underlying assets to be used in consensus activities if the beneficiary would otherwise have insufficient assets to be able to participate in consensus activities directly;
(iii) by protecting the beneficiary from, or by compensating the beneficiary for, any losses arising from the operation of public digital token infrastructure in relation to the underlying assets;
(iv) by allowing the beneficiary to pay lower transaction fees than if the beneficiary had participated in consensus activities directly;
(v) a way prescribed by regulations made for the purposes of this subparagraph.
(2) In this section:
beneficiary: a beneficiary under a platform means:
(a) for a digital asset platform,a client under the platform; or
(b) for a tokenised custody platform,a person who possesses a digital token created under the platform by the operator of the platform.
60 Before section 742
Insert:
741A Fundraising offers through a digital asset platform or tokenised custody platform
(1) A person who makes an offer of securities:
(a) under a digital asset platform or tokenised custody platform; and
(b) that needs disclosure to investors under Part 6D.2; and
(c) that results in the person lodging a disclosure document with ASIC;
must promptly notify the operator of the platform, and each custodian for the platform, if any of the following events happens:
(d) a supplementary or replacement document is lodged with ASIC in relation to the disclosure document;
(e) the person is prohibited under Division 1 of Part 6D.3 from making offers of securities under the disclosure document;
(f) the disclosure document is withdrawn before the expiry date specified in the disclosure document.
Note: This subsection is a civil penalty provision (see section 1317E).
(2) Nothing in Part 6D.2 or 6D.3 requires a disclosure document for offers of securities under a digital asset platform or tokenised custody platform to include information about:
(a) the platform; or
(b) the rights attached to the securities to the extent these rights differ from the rights that a person would have if they acquired the securities directly.
741B Fundraising exemptions relating to digital asset platforms and tokenised custody platforms
A person who:
(a) is the operator of a digital asset platform or of a tokenised custody platform; or
(b) is otherwise involved in the operation or promotion of such a platform;
is exempt from Parts 6D.2 and 6D.3 in relation to an offer to issue equitable rights or interests in securities arising because of an offer to hold, or arrange for the holding of, the securities through the platform.
61 After paragraph 765A(1)(p)
Insert:
(pa) so much of:
(i) a digital asset platform; or
(ii) a tokenised custody platform;
as relates to one or more custodial staking arrangements, if the issuer of the platform holds an Australian financial services licence authorising the provision of financial services relating to the issuing of the platform;
(pb) an interest in something that is not a managed investment scheme because of paragraph (me) or (mf) of the definition of managed investment scheme in section 9, whether or not the interest arises because of the possession of a digital token;
62 After paragraph 765A(1)(x)
Insert:
(xa) public digital token infrastructure;
(xb) a right, interest or benefit arising:
(i) out of conducting activities described in paragraph 9E(2)(b) (about consensus activities involving public digital token infrastructure); and
(ii) whether or not because of the possession of a digital token;
63 Subsection 766A(1)
After “paragraph (2)(b)”, insert “and subsection (3)”.
64 Subsection 766A(3)
Repeal the subsection, substitute:
Exceptions
(3) None of the following is the provision of a financial service:
(a) a person’s conduct done in the course of work of a kind ordinarily done by clerks or cashiers;
(b) conducting activities described in paragraph 9E(2)(b) (about consensus activities involving public digital token infrastructure).
65 After paragraph 768A(2)(h)
Insert:
(ha) conducting activities described in paragraph 9E(2)(b) (about consensus activities involving public digital token infrastructure);
66 Subsection 791C(7) (heading)
Repeal the heading, substitute:
Exemption of classes of financial markets and persons
67 After paragraph 911A(2)(j)
Insert:
(ja) the service is the issue of a digital asset platform if:
(i) no financial products are held under any digital asset platform (a relevant platform) issued by a member of the person’s closely‑related group; and
(ii) the total value of transactions in the last 12 months through all relevant platforms does not exceed $10 million; and
(iii) whenever a digital token begins to be an underlying asset of a relevant platform for a client (whether directly or through a nominee), the total of the entry values of all underlying assets of all relevant platforms for the client does not exceed $5,000; and
(iv) the person has lodged with ASIC, in the prescribed form, notice that the person intends to rely on the exemption in this paragraph for digital asset platforms;
(jb) the service consists only of either or both of the following:
(i) advising another person about the existence of a digital asset platform or tokenised custody platform;
(ii) arranging for another person to use a digital asset platform or tokenised custody platform;
and when the person provides the service:
(iii) the person does so in the ordinary course of the person’s business; and
(iv) such services are not a significant part of the person’s business;
68 After subsection 911A(4A)
Insert:
(4B) An amount in the exemption under paragraph (2)(ja) is taken to be replaced by any higher amount prescribed in, or worked out using a method prescribed in, regulations made for the purposes of this subsection.
69 Subsection 911A(5)
Omit “(2)(k) or (l)”, substitute “(2)(ja), (k) or (l)”.
70 Paragraph 911A(5)(a)
Omit “(2)(k)”, substitute “(2)(ja) or (k)”.
71 Subsection 911A(6)
Insert:
closely‑related group: a person’s closely‑related group has the following members:
(a) the person;
(b) each associated entity of the person;
(c) each entity for whom the person is an associated entity;
(d) each entity who is connected with the person;
(e) each entity that the person is connected with.
entry value, of a digital token that is an underlying asset of a digital asset platform, means the market value of the digital token when it begins to be an underlying asset of the platform.
72 Before section 992B
Insert:
992AC Exemptions relating to digital asset platforms and tokenised custody platforms
A person who:
(a) is the operator of a digital asset platform or of a tokenised custody platform; or
(b) is otherwise involved in the operation or promotion of such a platform;
is exempt from the other provisions of this Division in relation to an offer, request or invitation relating to a financial product that is an equitable right or interest in another financial product arising because of a holding, or an offer to hold or arrange for the holding of, the other financial product through the platform.
73 Subsection 1317E(3) (after the table item dealing with subsection 728(4))
Insert:
subsection 741A(1)
notifying of key events
uncategorised
Part 7,Amendment of the ASIC Act
Australian Securities and Investments Commission Act 2001
74 Subsection 12BA(1)
Insert:
clearing and settlement facility has the meaning given by subsections 12BAB(17) to (20).
financial market has the meaning given by subsections 12BAB(15) to (16B).
75 After paragraph 12BAA(7)(la)
Insert:
(lb) a digital asset platform, unless the platform is a managed investment scheme;
(lc) a tokenised custody platform, unless the platform is a managed investment scheme;
76 Subparagraph 12BAA(8)(k)(i)
Omit “or (m)”, substitute “, (m), (me) or (mf)”.
77 After paragraph 12BAA(8)(o)
Insert:
(oa) so much of:
(i) a digital asset platform; or
(ii) a tokenised custody platform;
as relates to one or more custodial staking arrangements, if the issuer of the platform holds an Australian financial services licence authorising the provision of financial services relating to the issuing of the platform;
(ob) an interest in something that is not a managed investment scheme because of paragraph (me) or (mf) of the definition of managed investment scheme in section 9 of the Corporations Act, whether or not the interest arises because of the possession of a digital token;
(oc) public digital token infrastructure;
(od) a right, interest or benefit arising:
(i) out of conducting activities described in paragraph 9E(2)(b) of the Corporations Act (about consensus activities involving public digital token infrastructure); and
(ii) whether or not because of the possession of a digital token;
78 After subsection 12BAA(8)
Insert:
Related matters
(8A) Section 765E of the Corporations Act also applies for the purposes of this Division as if references in that section to a financial product were references to a financial product within the meaning of this Division.
Note: That section allows for redemption rights to be disregarded when working out whether wrapped digital tokens are financial products.
79 Subsection 12BAB(1)
After “paragraph (2)(b)”, insert “and subsection (3)”.
80 Subsection 12BAB(1AA)
After “a financial product”, insert “(other than a digital asset platform, or a tokenised custody platform, that is a financial product only because of paragraph 12BAA(7)(lb) or (lc))”.
81 Before subsection 12BAB(2)
Insert:
Regulations may deal with various matters
82 After subsection 12BAB(2)
Insert:
Exceptions
(3) Conducting activities described in paragraph 9E(2)(b) of the Corporations Act (about consensus activities involving public digital token infrastructure) is not the provision of a financial service.
Meaning of operating a registered scheme
83 After paragraph 12BAB(7)(c)
Insert:
(ca) in relation to a digital asset platform or a tokenised custody platform,any conduct of a client under the platform (after the platform has been issued to the client);
84 After subsection 12BAB(11)
Insert:
(11A) Paragraph (11)(a) does not apply to a person stating prices at which the person proposes to acquire or dispose of financial products if the person:
(a) is the issuer of a tokenised custody platform; and
(b) is stating prices for the purposes of holding, redeeming or directing the delivery of the financial products under the platform.
85 After paragraph 12BAB(14)(c)
Insert:
(ca) dealing in a digital asset platform, or the possessing of digital tokens under such a platform;
(cb) dealing in a tokenised custody platform, or the holding (within the meaning of section 761GD of the Corporations Act) of assets or digital tokens under such a platform;
86 Subsection 12BAB(15)
Omit “this section”, substitute “this Division”.
87 After subsection 12BAB(16)
Insert:
(16A) If a declaration is in force under subsection 767B(1) of the Corporations Act for a digital asset platform in relation to one or more classes of digital tokens, then for the purposes of this Division:
(a) the platform is a financial market to the extent that the platform relates to the digital tokens; and
(b) for the purposes of provisions regulating the platform as a financial market, the digital tokens are financial products to the extent that the digital tokens are related to the platform.
(16B) If a declaration is in force under subsection 767C(1) of the Corporations Act for a digital asset platform in relation to one or more financial products, then:
(a) for the purposes of this Division; and
(b) despite subsection (15) of this section;
the platform is not a financial market in relation to those financial products.
88 Subsection 12BAB(17)
Omit “this section”, substitute “this Division”.
89 After paragraph 12BAB(18)(h)
Insert:
(ha) conducting activities described in paragraph 9E(2)(b) of the Corporations Act (about consensus activities involving public digital token infrastructure);
90 At the end of section 12BAB
Add:
(19) If a declaration is in force under subsection 768B(1) of the Corporations Act for a digital asset platform in relation to one or more classes of digital tokens, then for the purposes of this Division:
(a) the platform is a clearing and settlement facility to the extent that the platform relates to the digital tokens; and
(b) for the purposes of provisions regulating the platform as a clearing and settlement facility, the digital tokens are financial products to the extent that the digital tokens are related to the platform.
(20) If a declaration is in force under subsection 768C(1) of the Corporations Act for a digital asset platform in relation to one or more financial products, then:
(a) for the purposes of this Division; and
(b) despite subsection (17) of this section;
the platform is not a clearing and settlement facility in relation to those financial products.
91 After section 12BAB
Insert:
12BAC Conduct relating to certain platforms is a financial service only if engaged in by, or on behalf of, a constitutionally‑covered corporation
Despite anything in section 12BAB, conduct that:
(a) relates to a digital asset platform, or a tokenised custody platform, that is a financial product only because of paragraph 12BAA(7)(lb) or (lc); and
(b) would, apart from this section, be a financial service (or a kind of financial service);
is a financial service (or a kind of financial service) only if the conduct is engaged in by, or on behalf of, a constitutionally‑covered corporation.
Note: Dealing in a financial product is an example of a kind of financial service (see section 12BAB).
92 At the end of subsections 12BF(1), (2A) and (2C)
Add:
Note: Not all contracts that are digital asset platforms or tokenised custody platforms will be covered by this subsection (see subsection (9)).
93 At the end of section 12BF
Add:
(9) A reference in this section to a contract that is a financial product includes a digital asset platform or a tokenised custody platform only to the extent that the platform:
(a) is a financial product otherwise than because of paragraphs 12BAA(7)(lb) and (lc); or
(b) is issued:
(i) by, or on behalf of, a constitutionally‑covered corporation; or
(ii) using a postal, telegraphic, telephonic or other like service (within the meaning of paragraph 51(v) of the Constitution).
94 At the end of section 12BLC
Add:
(3) If:
(a) a financial services licensee is a party to a contract with one or more other persons; and
(b) either:
(i) some or all of the contract exists because of the platform rules of a digital asset platform or tokenised custody platform operated by the licensee; or
(ii) the licensee is the issuer of a digital asset platform or a tokenised custody platform;
this Subdivision does not apply to so much of the contract as exists in order for the licensee to comply with section 912BB of the Corporations Act.
Note 1: Section 912BB of the Corporations Act requires compliance with standards relating to such a platform.
Note 2: Such a standard could require the contract to include a particular term, in which case this subsection means that this Subdivision does not apply to that term of the contract.
95 At the end of subsection 12DK(6)
Add:
; and (d) a reference to a financial product includes a facility that:
(i) is a digital asset platform or tokenised custody platform; and
(ii) is a financial product only because of paragraph 12BAA(7)(lb) or (lc);
only to the extent that the platform is operated:
(iii) by, or on behalf of, a constitutionally‑covered corporation; or
(iv) using a postal, telegraphic, telephonic or other like service (within the meaning of paragraph 51(v) of the Constitution).
96 At the end of section 14
Add:
(5) Paragraph (2)(j) applies in relation to a facility that:
(a) is a digital asset platform or tokenised custody platform; and
(b) is a financial product only because of paragraph 764A(1)(la) or (lb) of the Corporations Act;
only to the extent that the conduct referred to in paragraph (2)(j) is engaged in:
(c) by, or on behalf of, a constitutionally‑covered corporation; or
(d) using a postal, telegraphic, telephonic or other like service (within the meaning of paragraph 51(v) of the Constitution).
97 After subsection 41(2)
Insert:
(2A) Subsection (2) applies in relation to a person and a facility that:
(a) is a digital asset platform or tokenised custody platform; and
(b) is a financial product only because of paragraph 764A(1)(la) or (lb) of the Corporations Act;
only to the extent that:
(c) the person is a constitutionally‑covered corporation; or
(d) the person acquired or disposed of the platform using a postal, telegraphic, telephonic or other like service (within the meaning of paragraph 51(v) of the Constitution); or
(e) if there is another person as described in subsection (2),the other person is a constitutionally‑covered corporation.
Part 8,Application and transitional provisions
Corporations Act 2001
98 In the appropriate position in Chapter 10
Insert:
Part 10.83,Transitional provisions relating to the Corporations Amendment (Digital Assets Framework) Act 2026
1730 Definitions
In this Part:
AFSL means an Australian financial services licence.
amended Corporations Act means this Act as in force on commencement.
commencement means the day Schedule 1 to the Corporations Amendment (Digital Assets Framework) Act 2026 commences.
Note: This is the day after the end of the 12‑month period beginning on the day that Act receives the Royal Assent.
DAP/TCP amendments means the amendments made by Schedule 1 to the Corporations Amendment (Digital Assets Framework) Act 2026.
DAP/TCP financial service means a financial service relating to:
(a) a digital asset platform; or
(b) a tokenised custody platform.
transition period means the 6‑month period starting on commencement.
1731 Application of amendments to financial services,general
The DAP/TCP amendments apply in relation to a DAP/TCP financial service to the extent that the service is provided on or after commencement.
1732 Transitional,delay in how amendments apply for AFSLs
(1) Despite section 1731, the DAP/TCP amendments do not apply in relation to the provision of a DAP/TCP financial service at any time during the transition period while the following person (the responsible person):
(a) if the person providing the service is doing so not as an agent or representative of any other person,the person providing the service;
(b) otherwise,the person on whose behalf the service is being provided;
does not hold an AFSL that is subject to a condition authorising the provision of the service.
Note: This subsection applies if the responsible person:
(a) does not hold an AFSL at all; or
(b) holds an AFSL that authorises only the provision of other services.
(2) However:
(a) during the transition period, the responsible person may apply under the amended Corporations Act for ASIC to decide whether or not to:
(i) grant the responsible person an AFSL that is subject to a condition authorising the provision of the service; or
(ii) vary the conditions on the responsible person’s AFSL to authorise the provision of the service; and
(b) ASIC may make such a decision under the amended Corporations Act in response to the application.
(3) Despite section 1731, if the responsible person applies as described in paragraph (2)(a) of this section, the DAP/TCP amendments do not apply in relation to the provision of the service until the day after the day ASIC makes a decision described in that paragraph in response to the application.
Note: If the responsible person fails to apply during the transition period, then the DAP/TCP amendments will start to apply immediately after the transition period.
1733 Application of amendments otherwise than in connection with financial services
If a provision of the amended Corporations Act:
(a) relates to a digital asset platform or tokenised custody platform; but
(b) does not relate to the platform in connection with a financial service;
then the DAP/TCP amendments of that provision apply in relation to the platform only if the platform is, or is to be, issued on or after commencement.
1734 Acquisition of property
(1) Despite section 1350, sections 1731 to 1733 do not apply, and are taken never to have applied, to the extent that their operation would result in an acquisition of property from a person otherwise than on just terms.
(2) In subsection (1), acquisition of property and just terms have the same meanings as in paragraph 51(xxxi) of the Constitution.
1735 Regulations
(1) The regulations may make provisions of a transitional, application or saving nature relating to this Part and the amendments and repeals made by the amending Schedule.
(2) Without limiting subsection (1), regulations made for the purpose of that subsection may modify provisions of this Act.