Bitcoin, bullion and carbon credits: control without possession? Commercial drafting for new and evolving forms of property
The legal characterisation of new forms of property is developing quickly. Bitcoin, tokenised assets, digital gold and statutory environmental units may all be described as “assets”, but that description tells the commercial lawyer very little about the legal rights actually held by the client.
The practical question is not simply whether something is “property”. It is:
What is the transaction trying to achieve, what is the relevant asset or right, who owns it, who can exercise control over it, how is it transferred, and what happens if something goes wrong?
That was the focus of my recent Queensland Law Society presentation, Bitcoin, bullion and carbon credits: control without possession?
The presentation considers three very different legal architectures:
Bitcoin is a protocol-native asset. There is no issuer and no conventional registry of legal title. The practical ability to transact depends on private keys and the rules of the network. Recent Australian litigation has therefore required courts to consider not merely whether Bitcoin is property, but whether an intangible digital asset can be possessed and whether control through a private key is capable of supporting possessory remedies.
Bullion presents an older legal problem in a modern form. Legal ownership, beneficial ownership, physical possession, custody and the power to give instructions may all sit with different persons. Allocated bullion may be held on bailment. Unallocated bullion may involve only a contractual claim. Digital or tokenised gold may add a further technological layer without answering the underlying question: what does the investor actually own?
Australian Carbon Credit Units (ACCUs) provide a different model again. They are statutory personal property. Legal ownership and transfer are mediated through a statutory registry. The registry is central to the architecture, but account authority or practical control should not be confused automatically with ownership.
These examples lead to a broader drafting principle.
Start with the commercial function
Before deciding which legal category applies, ask what the parties are trying to achieve.
Is ownership intended to pass? Is the asset being held in custody? Is it being provided as security for a loan? Is the investor acquiring the underlying asset, a beneficial interest, a contractual claim, a redemption right or merely economic exposure?
Once the commercial function is identified, the document can be drafted around the legal and operational risks that matter.
Tokenisation does not necessarily simplify ownership
Tokenisation may improve settlement, transferability, fractionalisation, record-keeping and access to markets. But from the investor's perspective it can also introduce another layer of legal analysis.
A token may represent direct ownership of an underlying asset. It may instead represent a trust interest, a contractual entitlement, an interest in a managed investment scheme, a redemption right or economic exposure.
Accordingly:owning the token and owning what the token represents are not necessarily the same thing.
This is why the legal documentation remains critical.
There is a useful analogy with general law title to land. Before Torrens title, a purchaser could not establish good title merely by looking at the latest conveyance. The chain of title had to be examined to determine whether each link was effective and whether there were competing interests, defects or other matters affecting ownership.
Tokenisation can raise a similar problem. A blockchain may provide very strong evidence that a particular token was transferred from one address to another. But that does not necessarily establish that the person who created or transferred the token had good title to the underlying asset, or that the token holder has the proprietary rights they assume they have acquired.
The technology may therefore make the record of transfer more efficient without necessarily making the legal title more certain.
Drafting for uncertainty
The role of the commercial lawyer is not necessarily to eliminate legal uncertainty. Often that cannot be done.The task is to identify where the uncertainty lies and allocate the resulting risks in a way that reflects the parties' commercial intentions.
That may require the agreement to deal expressly with ownership, custody, control mechanisms, transfer events, registry entries, private keys, security interests, insolvency, segregation of assets,
third-party override rights and changes in law or technology.
For example, a contract may need to state expressly that the grant of custody, account authority or signing authority does not itself transfer ownership. It may also need to define the precise event at which a transfer becomes legally effective rather than simply assuming that initiation of a technological process constitutes legal completion.
What comes next?
The same questions are likely to arise with an increasing range of emerging assets and rights.
One particularly interesting Australian development is the biodiversity certificate under the Nature Repair Market. Like an ACCU, it represents a statutory form of personal property supported by a registry architecture.
Other areas likely to require increasing attention include tokenised real-world assets, environmental and ecosystem credits, data and data-access rights, digitally recorded commodity interests, AI and compute-related contractual rights, and other forms of statutory or technologically mediated property.
The terminology may be new, but many of the legal questions are not.
What is the thing?
Who owns it?
Who can control it?
How does it move?
What happens on insolvency?
What exactly is the contract intended to achieve?
Those questions remain the foundation of sound commercial drafting.
Presentation:Bitcoin, bullion and carbon credits: control without possession?
Queensland Law Society Specialist Practice Conference, 2026.
Helen Fielder, Legal Practitioner Director, CCG Lawyers
This paper is provided for general information only and does not constitute legal advice. The law and regulatory treatment of digital assets and other emerging forms of property continue to develop.
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