In a recent speech, Justice Jackman of the Federal Court of Australia provided a compelling argument for recognising cryptocurrency as property under Australian common law. This perspective challenges traditional notions of property and adapts legal principles to the digital age.
The core of Justice Jackman’s argument rests on the versatile nature of property in Australian law. Drawing from landmark cases (like Yanner v Eaton (1990) 201 CLR 351), his Honour emphasises that property is not the thing itself, but rather a legally endorsed concentration of power over things and resources. This flexible definition allows for the inclusion of novel forms of assets, including cryptocurrencies.
A key insight from the speech is the Australian interpretation of “choses in action”. Unlike some jurisdictions that struggle to classify cryptocurrencies due to their lack of a counterparty, Australian law does not require choses in action to be enforceable by court action. This broader interpretation easily accommodates cryptocurrencies within existing legal frameworks.
Justice Jackman also addresses the common objection that cryptocurrency is mere information, and therefore not property. He argues that while a private key in isolation might be considered information, the entire cryptocurrency system – including public data, private keys, and consensus rules – creates a unique, rivalrous asset that prevents double-spending and simultaneous control by different parties.
Importantly, the speech highlights the practical reality of cryptocurrency’s widespread use in commerce. The fact that cryptocurrencies are actively traded, held in trust, and bequeathed in wills strongly supports their recognition as property. Justice Jackman argues that the law should align with the reasonable expectations of ordinary people engaging with these assets.
For a full reading of the speech, see here.
