AUSTRALIA Law and Practice Contributed by: Steven Pettigrove, Katrina Sharman, Luke Higgins and William Deeb, Piper Alderman
products and services. Australia does not currently recognise a discrete “right to be forgotten”; instead, obligations focus on taking reasonable steps to pro- tect personal information and to destroy or de-iden- tify it when no longer required, alongside providing mechanisms for correction. These requirements can create tension with blockchain’s immutability. As a result organisations typically need to take care when assessing their design, particularly regarding the storage and management of personal information, to ensure compliance with Privacy Act obligations. 1.1.4 Smart Contracts Whether a smart contract is legally enforceable in Australia continues to depend on the form of the par- ticular arrangement. There remains no bespoke legal framework governing the enforceability of smart con- tracts; instead, each contract is assessed by refer- ence to the traditional elements of contract formation to determine whether it is binding. Specifically, there must be an intention to create legal relations, consid- eration, offer and acceptance. General unfair contract terms provisions, such as duress, undue influence or unconscionable conduct, can render a smart contract void, notwithstanding its self-executing digital nature. Smart contracts that adopt a “the code is the con- tract” model raise particular concerns. In these cases, the operative terms exist solely as machine-readable code. This raises practical difficulties in establishing a counterparty’s identity and capacity to enter into the contract. Australian courts have yet to address a smart contract dispute and there remains limited judicial guidance on whether they will adopt reasoning akin to the United States Court of Appeals decision in Van Loon v OFAC , where a smart contract can be ownerless and may be entered into unilaterally and is operator-less. 1.1.5 Industry and Trade Bodies The Digital Economy Council of Australia (DECA) is a representative organisation for participants in the blockchain and cryptocurrency sector. DECA repre- sents blockchain businesses and market participants more broadly and administers the Australian Digital Currency Industry Code of Conduct, which operates as an audited, self regulatory framework. Under this framework, Australian digital asset exchanges that
obtain certification can demonstrate adherence to defined best practice standards in the operation of their businesses. These standards address, among other items: • legal compliance; • the reputation, fitness and propriety of owners and operators; • AML/CTF safeguards and reporting; and • consumer protection measures, including transpar- ent pricing, dispute resolution processes and data security. 1.2 Crypto-Assets 1.2.1 Property Considerations Judicial Consideration Australian courts have increasingly treated crypto- assets as a form of property at common law. In Re Blockchain Tech Pty Ltd [2024] VSC 690, the Supreme Court of Victoria confirmed that bitcoin satisfies the recognised indicia of property. Subsequent criminal and insolvency proceedings have proceeded on the same basis, treating crypto-assets as capable of pro- prietary classification. While this position is increasingly accepted, it remains subject to further appellate consideration. The High Court of Australia has granted special leave to con- sider whether Bitcoin constitutes “property” under Australian law following the decision of Poulton v Con- rad [2025] TASFC 7. That appeal raises fundamental questions as to whether crypto-assets are best char- acterised as property, mere information or as a form of control-based entitlement. The outcome is expected to clarify how traditional property concepts (including possession and choses in action) apply to decentral- ised digital assets. In practice, enforcement of proprietary rights in cryp- to-assets differs from that of tangible property. Con- trol of crypto-assets, typically through private keys or custodial arrangements, is central to both possession and recoverability. Courts have adapted existing pro- cedural mechanisms accordingly, including permit- ting substituted service via digital means in fraud and recovery actions (see Siegers v Nest Services Ltd & Ors [2026] VCC 15). However, the underlying analysis
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