AUSTRALIA Trends and Developments Contributed by: Steven Pettigrove, Katrina Sharman, Luke Higgins and William Deeb, Piper Alderman
The New DAF Act Regime The DAF Act adopts an activity-based framework embedded within Chapter 7 of the Corporations Act. This focuses on the functional activity performed rather than the characteristics of one or other assets. However, as we discuss below, a case-by-case assessment of tokens remains important in deter- mining whether additional licence authorisations are required to carry on the business. At the centre of the DAF framework are two new finan- cial products:
In the absence of bespoke legislation, the Australian Taxation Office (ATO) has issued a range of rulings and non–binding guidance. This includes: • Taxation Determination TD 2014/25: “Income tax: is bitcoin a ‘foreign currency’ for the purposes of Division 775 of the Income Tax Assessment Act 1997?”; • Taxation Determination TD 2014/26: “Income tax: is bitcoin a ‘CGT asset’ for the purposes of sub- section 108-5 (1) of the Income Tax Assessment Act 1997?”; • Taxation Determination TD 2014/27: “Income tax: is bitcoin trading stock for the purposes of subsec- tion 70-10 (1) of the Income Tax Assessment Act 1997?”; • Taxation Determination TD 2014/28: “Fringe ben- efits tax: is the provision of bitcoin by an employer to an employee in respect of their employment a property fringe benefit for the purposes of subsec- tion 136 (1) of the Fringe Benefits Tax Assessment Act 1986?”; • non-binding web guidance for Australian small businesses on how to deal with crypto-assets; • non-binding web guidance for individuals engag- ing in a broad range of crypto-asset activities, including specific guidance involving gift cards and gambling; • non-binding web guidance on goods and services tax (GST) on certain digital currency interactions; and • various edited versions of private advice by the ATO regarding the treatment of taxpayer-specific digital asset interactions. Enforcement activity has increased in recent years, with the ATO undertaking targeted risk reviews and audits and using private rulings and test cases to clarify the application of existing tax laws to digital assets. Most recently, on 7 May 2026, the Commis- sioner of Taxation filed to intervene in a civil proceed- ing in Australia’s highest court (the High Court of Aus- tralia), Poulton v Conrad H1/2026. The Commissioner is seeking to intervene to contend that an interest in bitcoin is property for the purposes of Australian com- mon law and thereby taxable by the Commissioner under Australia’s capital gains taxation regime or as an item of trading stock.
• digital asset platforms (DAPs); and • tokenised custody platforms (TCPs).
Together, these concepts extend the AFSL regime to cover two types of custodial activity in relation to digi- tal assets and impose additional obligations in relation to trading and settlement of digital assets. The DAF Act does not seek to regulate the entirety of “crypto” or all blockchain activity. It includes targeted exemp- tions for public digital asset infrastructure, custodial staking (under licence) and certain ancillary activities. New Concepts Under the DAF Act DAPs The definition of a DAP under the newly introduced Section 761GC of the Corporations Act covers cir- cumstances in which the operator acts as a trustee or bailee or is obliged to ensure that digital assets are handled in accordance with a person’s instructions. A person becomes a client of a platform when they enter into the facility by accepting its terms on open- ing an account. This definition is broad enough to cover platforms that: • solely provide custody of digital tokens; or • enable operators or third parties to act on behalf of clients (eg, using, transferring or staking tokens), with the operator holding the underlying assets in a manner analogous to physical custody. TCPs A TCP is defined in the new Section 761GD of the Cor- porations Act as a facility in which an operator identi- fies specific real-world assets (other than money) and
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