Australia moves to regulate Bitcoin

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In a significant step towards making digital currency mainstream, the Australian government has introduced into parliament a bill to regulate the activities of digital currency exchange service providers.

If enacted in its current form, the provisions of the Anti-Money Laundering and Counter-Terrorism Financing Amendment Bill 2017 will mean that businesses providing convertible digital currency exchange services (for example, by exchanging money for bitcoin or vice-versa) will need to be registered with, and subject to mandatory reporting obligations to, the Australian Transaction Reports and Analysis Centre (Austrac), Australia’s financial intelligence and regulatory agency.

The key measures of the bill affecting digital currency exchanges are:

  • digital currency exchanges will be required to:
    • obtain registration with Austrac. Registrations can be granted subject to conditions and, in some circumstances, cancellation;
    • perform customer due diligence by identifying and verifying the identities of their customers;
    • report to Austrac certain suspicious matters, and any transactions involving physical currency of A$10,000 (US$7,600) or more;
    • adopt and maintain an anti-money laundering and counter-terrorism financing programmes to identify and manage money laundering and terrorism financing risks;
    • keep certain records about transactions and customer identification for seven years;
  • it will be a criminal offence to provide digital currency exchange services without an Austrac registration. Penalties of up to two years’ imprisonment and/or 500 penalty units (currently equal to A$105,000) apply for a first offence, with significantly increased penalties applying for repeat offences. Offenders can alternatively be pursued under the civil penalty provisions, which currently provides for penalties of up to A$2.1 million for corporations and A$420,000 for individuals;
  • the establishment of a digital currency exchange register recording details of those approved by Austrac to provide digital currency exchange services.

The bill marks the first legislative steps taken by the Australian government to impose reporting obligations on virtual currency exchanges under Australia’s anti-money laundering and terrorism financing laws.

The measures contained in the bill implement some of the recommendations made in the government’s statutory review of Australia’s anti-money laundering legislation in April 2016, and will bring Australia’s laws into line with similar measures already in place in the US, Canada and the EU.

By focusing on the activities of bitcoin exchange providers, the bill effectively targets the “entry and exit” points of the digital currency system – that is, when people use regular money to buy digital currency, or when they seek to convert digital currency back into regular money.

As a result, the bill’s measures will not affect how digital currency can be transferred between users, and in particular will not affect the privacy of such transactions.

The bill was introduced in the lower house on 17 August 2017 and has been scrutinized by the Senate Legal and Constitutional Affairs Legislation Committee. The committee reported on 16 October 2017 recommending that the government further consider certain definitions used in the bill, and also that the bill be passed. On 24 October 2017 the bill was referred to the federation chamber, a subordinate body of the House of Representatives that is able to consider bills in detail and make amendments to them.

Business Law Digest is compiled with the assistance of Baker McKenzie. Readers should not act on this information without seeking professional legal advice. You can contact Baker McKenzie by emailing Danian Zhang at danian.zhang@bakermckenzie.com.