AUSTRALIA Law and Practice Contributed by: Steven Pettigrove, Katrina Sharman, Luke Higgins and William Deeb, Piper Alderman
• product disclosure statement (PDS); and • target market determination (TMD), if offered to retail clients. 2.4 Token Issuance Historically, Australia has had very few crypto-asset issuance (ICOs and TGEs) owing to the risks of breaching existing financial services laws. There is no bespoke regime governing token issuance. Instead, ASIC applies a technology neutral, substance based approach, under which the key issue is whether the token constitutes a “financial product” under the Cor- porations Act. If a token confers rights analogous to shares, deriva- tives or interests in a managed investment scheme (ie, profit rights or pooled investment), it will be treated as a financial product. In that case, the token issuer and any intermediaries must hold an AFSL and comply with licensing, disclosure and conduct obligations. The clarification of ASIC’s position on the boundaries of financial services law, as specified in INFO 225, potentially opens the door to regulated token sales under the AFSL framework, asset tokenisation and non-financial products subject to compliance with consumer laws. Australia does not require a formal White Paper for token offerings. However, disclosure obligations depend on classification. If the token is a financial product, issuers must provide a regulated disclosure document (typically a TMD, PDS and FSG) for retail offers and ensure that the disclosures are accurate and not misleading. While White Papers are com- monly used, they do not replace formal disclosure obligations. 2.5 Market Abuse Australia has a well-developed market abuse frame- work under the Corporations Act, which applies to misconduct involving “financial products” and is enforced by ASIC. This includes insider trading and market manipulation.
Insider trading is prohibited under Section 1043A and covers: • trading while in possession of inside information; • procuring another person to trade; and • communicating (or “tipping”) such information to others. “Inside information” is information that is not gener- ally available and that would have a material effect on the price or value of a financial product if disclosed. The regime also prohibits broader market misconduct, including creating false or misleading trading activ- ity, manipulating prices and making misleading state- ments to induce trading. As a result, traditional securities markets have a clear prohibition on market abuse. Where crypto-assets fall within the financial product regime under the Corpo- rations Act, similar offences apply to insider trading conduct. It is expected that DAF Act reforms will require licen- sees to comply with new surveillance and reporting obligations regarding market conduct involving even Australian regulators have demonstrated an increas- ingly active and deterrence focused enforcement approach toward non compliance. Recent Regulatory Enforcement Actions The Australian Securities and Investments Commis- sion’s recent enforcement activity reflects its increased scrutiny of crypto-asset offerings that mimic “financial products” and services. The regulator has repeatedly warned that “simply because a product hinges on a crypto-asset does not mean it falls outside financial services law”. This stance became evident in ASIC’s proceedings against Qoin, Block Earner and Finder Wallet, which each concerned the alleged offer of unlicensed financial services involving crypto-assets. A notable example is Australian Securities and Invest- ments Commission v BPS Financial Pty Ltd ( Penalty ) [2026] FCA 18, where the Federal Court imposed AUD14 million in penalties for unlicensed conduct non-financial products. 2.6 Non-Compliance
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