Bitcoin, Property or Money? Reframing the debate before the High Court

Helen Fielder LLB, LLM (Melb), Grad Cert Prop & Plan (UTS, Syd), Grad Dip Law (Syd)

Introduction

The appeal in Poulton v Conrad presently before the High Court of Australia has largely been framed as a dispute about whether Bitcoin constitutes property at common law and, if so, whether traditional proprietary remedies such as detinue and conversion are available. ¹

The submissions before the Court reveal, however, that the parties are often addressing different questions. The appellant focuses on Bitcoin as information recorded on a distributed ledger. The respondent emphasises Bitcoin's transactional functionality. The Commissioner of Taxation approaches the issue through established property doctrine. A fourth perspective focuses on Bitcoin's monetary characteristics and the practical reality of cryptographic control.

Viewed together, these competing approaches suggest that the central issue may not be whether Bitcoin is property, but how the law should characterise exclusive control over a digitally scarce economic resource.

The appeal therefore presents an opportunity not only to clarify the proprietary status of Bitcoin but also to consider whether traditional legal categories remain adequate for assets that exist solely within decentralised digital networks.

Why this case matters beyond Bitcoin

Although the appeal concerns Bitcoin, its implications extend far beyond cryptocurrency.

The Court's treatment of Bitcoin may influence how Australian law approaches a growing range of digital and tokenised assets, including stablecoins, tokenised securities, carbon credits, digital commodities and other blockchain-based rights. The decision may also affect the development of secured lending, insolvency administration, estate planning and asset recovery in circumstances where control is exercised through cryptographic authentication rather than physical possession.

The taxation consequences are equally significant. For more than a decade the Australian Taxation Office has administered the taxation system on the basis that Bitcoin constitutes property and is capable of being a CGT asset. A judicial reconsideration of Bitcoin's legal character therefore has implications extending well beyond private disputes between cryptocurrency holders.

The appeal may also expose a broader challenge within Australian commercial law. Traditional legal categories were largely developed for physical assets, documentary intangibles and bilateral legal relationships. Digital assets such as Bitcoin do not fit neatly within those frameworks. They are not tangible property, yet neither are they conventional choses in action dependent upon a debtor, issuer or contractual counterparty.

For secured transaction lawyers, the case raises an additional question. The Personal Property Securities Act 2009 (Cth) generally prioritises legal rights through concepts such as attachment, perfection and registration. Bitcoin, however, is controlled in practice through possession of private keys. The person who controls the private key ordinarily controls the asset. The extent to which Australian law should recognise and accommodate that commercial reality remains an important unresolved issue.

Accordingly, while the immediate dispute concerns the proprietary status of Bitcoin, the broader significance of the appeal lies in its potential to influence how Australian law conceptualises ownership, control and value in an increasingly digital economy.

Competing perspectives

The following table summarises the principal approaches advanced in the appeal and related commentary.

Position	What it gets right	What it does not fully address	Preferred analysis
Appellant	Correctly identifies that Bitcoin is not a tangible object and exists as data recorded on a distributed ledger.²	Treats Bitcoin as little more than information. Modern commercial law already recognises valuable rights represented entirely by information, including bank accounts, securities and other intangible assets.	The relevant question is not whether Bitcoin is information, but whether the information represents a legally recognised economic resource capable of exclusive control.
Respondent	Correctly emphasises Bitcoin's transactional functionality and the ability of private key holders to exercise practical control. ³	Does not fully explain why transactional functionality alone should determine proprietary status.	Transactional functionality provides a persuasive explanation for why Bitcoin attracts proprietary protection.
Commissioner of Taxation	Correctly focuses on property as a legal relationship rather than a thing. ⁴ Consistent with long-established Australian authority.	Tends to fit Bitcoin within existing doctrinal categories rather than questioning whether those categories remain sufficient.	Provides the strongest doctrinal foundation and preserves coherence across taxation and commercial law.
Monetary Function Approach	Recognises that Bitcoin is acquired and used because it performs functions traditionally associated with money, including storing and transferring value. ⁵	Bitcoin is not presently legal tender, and courts may regard monetary classification as a matter for legislative rather than judicial development.	Monetary functionality remains relevant because it explains why Bitcoin has value and why proprietary protection is sought.
Control-Based Approach	Recognises that practical control is exercised through possession of private keys and that economic control follows cryptographic control.	Existing legislation has not yet fully adapted to this reality.	Offers the most coherent explanation for custody, enforcement and secured lending involving digital assets.

The difficulty with the information analysis

A recurring theme in the appellant's submissions is that Bitcoin is merely information recorded within a distributed database. ⁶

At one level this is undoubtedly correct. Bitcoin consists of entries recorded on a blockchain ledger and can only exist through the operation of software and network consensus rules.

However, many valuable assets ultimately depend upon information. A bank account consists of ledger entries maintained by a financial institution. A shareholding recorded through CHESS is represented electronically. Intellectual property rights are themselves intangible legal constructs.

The fact that an asset is represented digitally has never been sufficient, by itself, to deny proprietary recognition.

The critical question is whether the holder enjoys a legally significant relationship with the asset.

The Respondent's functional analysis

The respondent's submissions place greater emphasis on what Bitcoin allows its holder to do. ⁷ Bitcoin may be stored, transferred, exchanged and inherited. A holder with knowledge of the relevant private key may authorise transactions recognised by the network. Those practical powers create a form of exclusivity that resembles traditional proprietary interests.

This approach reflects the observation of Professor David Fox that digital assets are better understood as a form of "transactional power" rather than as mere data. ⁸ The concept is useful because it focuses attention on practical control and economic reality rather than technological form.

The Commissioner's property analysis

The Commissioner of Taxation approaches the matter from a different perspective.

Rather than focusing on the nature of Bitcoin itself, the Commissioner emphasises that property describes a legal relationship between a person and a subject matter. ⁹ This approach reflects the observations of the High Court in Yanner v Eaton and more recently in Hocking v Director-General of the National Archives of Australia. ¹⁰

The Commissioner's intervention is unsurprising. For more than a decade the Australian Taxation Office has administered the taxation system on the basis that Bitcoin constitutes property and is capable of being a CGT asset. ¹¹

The Commissioner's position therefore provides doctrinal continuity and commercial certainty.

The missing question: why does Bitcoin have value?

The submissions devote considerable attention to property doctrine, but comparatively little attention to a more fundamental question.

Why do people acquire Bitcoin? The answer is not because it is information. People acquire Bitcoin because it performs economic functions traditionally associated with money.

Bitcoin may be used to store value, transfer value and settle transactions. While it is not legal tender under Australian law, it nonetheless performs many of the functions historically associated with money.¹²

This observation does not require Bitcoin to be classified as currency. Rather, it suggests that monetary functionality should inform legal characterisation.

Historically, gold and silver functioned as money before formal legal recognition. Commercial practice often develops ahead of legal doctrine.

Possession, control and the PPSA challenge

The appeal also highlights a broader challenge for Australian commercial law.

Traditional proprietary concepts evolved around physical possession and bilateral legal relationships. Bitcoin fits does not fit comfortably within either category. There is no issuer. There is no debtor. There is no contractual promise. Yet there is undeniable economic value.

Practical control is exercised through possession of private keys. The person who controls the private key controls the ability to transfer the asset. In commercial reality, control and value converge in the same place.

This creates a potential mismatch within existing Personal Property Securities Act frameworks. Legal priority rules applicable to intangible property may not always align with the practical reality that control of private keys determines effective control of the asset itself.¹³

The issue extends beyond Bitcoin and may ultimately influence the treatment of tokenised assets, digital commodities and other blockchain-based property rights.

A possible path forward

The most likely outcome is not that Bitcoin will be classified as money in the strict legal sense. Australian courts have traditionally treated questions concerning legal tender and currency as matters for Parliament. A more probable outcome is recognition that Bitcoin constitutes a novel form of property capable of exclusive control through cryptographic authentication.

Such an approach would:

·       preserve consistency with existing taxation law;

·       recognise the commercial reality of digital assets;

·       avoid forcing Bitcoin into inappropriate historical categories; and

·       permit the continued development of proprietary remedies suitable for digital assets.

Conclusion

The real challenge presented by Bitcoin is not whether it is property.

The more difficult question is whether legal doctrines developed for physical assets and bilateral obligations remain adequate for a digitally native asset capable of exclusive control without physical possession or contractual rights.

The competing submissions before the High Court demonstrate that Bitcoin can be viewed through multiple legal lenses: information, property, transactional power and money.

The future development of Australian law may ultimately depend less on deciding which label is correct and more on recognising that cryptographic control has become a commercially significant form of control in its own right.

Footnotes

1. Poulton v Conrad H1/2026, High Court of Australia.

2. Appellant's Submissions, Poulton v Conrad H1/2026 at [20]-[25].

3. Respondent's Submissions, Poulton v Conrad H1/2026 at [13]-[15].

4. Federal Commissioner of Taxation, Intervener's Submissions, Poulton v Conrad H1/2026 at [9]-[14].

5. See generally Helen Fielder, "Bitcoin: Commodity, Property or Money? Reconsidering the Legal Classification of Digital Assets in Australia" (2026).

6. Appellant's Submissions, Poulton v Conrad H1/2026 at [20].

7. Respondent's Submissions, Poulton v Conrad H1/2026 at [15].

8. David Fox, "Digital Assets as Transactional Power" (2022) 1 Journal of International Banking and Financial Law 3.

9. Federal Commissioner of Taxation, Intervener's Submissions, Poulton v Conrad H1/2026 at [9]-[13].

10. Yanner v Eaton (1999) 201 CLR 351; Hocking v Director-General of the National Archives of Australia (2020) 271 CLR 1.

11. TD 2014/26; TD 2014/27.

12. Helen Fielder, "Is Bitcoin Money?" (Lexology, 2020).

13. Personal Property Securities Act 2009 (Cth); see also Helen Fielder, "Bitcoin: Commodity, Property or Money? Reconsidering the Legal Classification of Digital Assets in Australia" (2026).