Commonwealth: Export Finance and Insurance Corporation Act 1991 (Cth)

Export Finance and Insurance Corporation Act 1991 No. 148, 1991 Compilation No. 25 Compilation date: 11 December 2024 Includes amendments: Act No. 120, 2024 About this compilation This compilation This is a compilation of the Export Finance and Insurance Corporation Act 1991 that shows the text of the law as amended and in force on 11 December 2024 (the compilation date). The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law. Uncommenced amendments The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the Register for the compiled law. Application, saving and transitional provisions for provisions and amendments If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes. Editorial changes For more information about any editorial changes made in this compilation, see the endnotes. Modifications If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the Register for the compiled law. Self‑repealing provisions If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes. Contents Part 1—Preliminary 1 Short title 2 Commencement 3 Interpretation 3A Meaning of large business 3B Meaning of eligible activity 3C Terms and conditions of insurance, financial services or products for certain activities carried out by constitutional corporations 4 Extension to Territories 5 Application of Act outside Australia 5A Application of the Criminal Code Part 2—Establishment and functions of Export Finance and Insurance Corporation 6 Establishment of EFIC 7 Functions of EFIC 8 Primary duties of EFIC 9 Ministerial directions to EFIC 10 Reimbursement of cost of complying with directions Part 3—General powers and duties of EFIC 11 General powers of EFIC 12 Offices of EFIC 13 Formation of companies, partnerships etc. Part 4—Insurance and financial services and products 14 Export payments insurance contracts 15 Reinsurance etc. in relation to business of EFIC 16 Guarantees and subsidies in relation to loans to Australian suppliers 17 Guarantees and subsidies in relation to loans to overseas buyers etc. 18 Guarantees to co‑lenders in relation to export transactions 18A Guarantees in relation to overseas infrastructure development 19 Tender guarantees and performance guarantees 20 Reinsurance of guarantees, insurance etc. relating to export business etc. 21 Approved causes of loss 22 Insurance in respect of overseas investment transactions 23 Loans to finance eligible export transactions 23A Loans to support overseas infrastructure development 23B Services and products to support EFIC's national economy and net zero transformation functions 23C Approval required before providing services or products to finance certain coal, crude oil or natural gas activities Part 5—National interest transactions 24 Interpretation 25 Reference of applications to Minister 26 Ministerial directions regarding reference of applications 27 Approval of EFIC entering into contracts etc. 28 Conditional approvals 29 Ministerial directions regarding entry into national interest contracts etc. 30 Gazettal of national interest contracts etc. 31 Reinsurance etc. in relation to EFIC business under Part 5 Part 6—Board 32 Establishment of the Board 33 Functions of the Board 34 Membership of the Board 35 Term of office and conditions of office of members 36 Terms and conditions of appointment 37 Remuneration etc. of appointed members 38 Acting Chairperson and acting Deputy Chairperson 39 Acting members 40 Leave of absence of appointed members 41 Resignation of appointed members 42 General provision for termination of appointment of appointed members 43 Termination of appointment of appointed members at instance of Board or for non‑performance etc. 44 Meetings of the Board 46 Resolutions without meetings 47 Committees Part 7—Corporate plans 49 Matters to be included in corporate plans Part 8—Finance 52 Capital of EFIC 53 Transfers to capital from reserves 54 Callable capital of EFIC 55 Payment of annual dividends to the Commonwealth 55A Payment of additional dividends to the Commonwealth 56 Maintenance of adequate capital and reserves 58 Borrowings from the Commonwealth 59 Other borrowings 60 Security 61 Limitation on borrowing etc. 61A Debt neutrality charge 62 Guarantee by Commonwealth 62A Guarantee fees 63 Exemptions from taxation 63A Tax‑equivalent payments 64 Transactions in the national interest: EFIC share of liability 65 Contracts and guarantees in the national interest 66 Loans made in the national interest 66A DIFF loans—assumption of risk by the Commonwealth 67 Subsidy to EFIC 68 Maximum contingent liability under Part 4 69 Limit of total amount of loans under Part 4 70 Annual report Part 9—Managing Director and Deputy Managing Director 71 Appointment of Managing Director and Deputy Managing Director 72 Appointments to be full‑time and at Board's pleasure 73 Terms and conditions of appointment 74 Disclosure of interests 75 Exclusion from certain Board deliberations 77 Duties of Managing Director and Deputy Managing Director 78 Outside employment 79 Acting Managing Director and acting Deputy Managing Director 80 Resignation Part 10—Miscellaneous 81 Use of name of Corporation 82 Application of the Lands Acquisition Act 1989 83 Delegations by Minister and Managing Director 84 Delegation by the Board 84A EFIC must charge for certain services 85 Annual reports 87 Secrecy 88 Offences 89 Effectiveness of acts of EFIC 90 Staff 91 Regulations Endnotes Endnote 1—About the endnotes Endnote 2—Abbreviation key Endnote 3—Legislation history Endnote 4—Amendment history An Act to establish an Export Finance and Insurance Corporation for the purpose of facilitating and encouraging Australian export trade and overseas infrastructure development, and for related purposes Part 1—Preliminary 1 Short title This Act may be cited as the Export Finance and Insurance Corporation Act 1991. 2 Commencement This Act commences on 1 November 1991. 3 Interpretation (1) In this Act, unless the contrary intention appears: ADI has the same meaning as in the Banking Act 1959. Note: ADI is short for authorised deposit‑taking institution. appointed member means a member, other than the Managing Director of EFIC. Australian benefit means a benefit that flows (whether directly or indirectly) from overseas to: (a) Australia; or (b) a person carrying on business or other activities in Australia. Australia's greenhouse gas emissions reduction targets means: (a) if: (i) Australia's current nationally determined contribution was communicated in accordance with Article 4 of the Paris Agreement in June 2022; and (ii) that nationally determined contribution has not been adjusted in accordance with paragraph 11 of Article 4 of the Paris Agreement; the greenhouse gas emissions reduction targets set out in paragraphs 10(1)(a) and (b) of the Climate Change Act 2022; or (b) in any other case—the greenhouse gas emissions reduction targets included in: (i) Australia's current nationally determined contribution communicated in accordance with Article 4 of the Paris Agreement; or (ii) if that nationally determined contribution has been adjusted in accordance with paragraph 11 of Article 4 of the Paris Agreement—that nationally determined contribution, as adjusted and in force from time to time. Board means the Export Finance and Insurance Corporation Board. called capital, in relation to EFIC at a particular time, means the total amount paid by the Commonwealth to EFIC under subsection 54(4), less any amounts paid by EFIC to the Commonwealth under subsection 54(6). Chairperson includes a person acting as Chairperson. Commonwealth company has the same meaning as in the Public Governance, Performance and Accountability Act 2013. Commonwealth entity has the same meaning as in the Public Governance, Performance and Accountability Act 2013. constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies. Deputy Chairperson includes a person acting as Deputy Chairperson. Deputy Managing Director includes a person acting as Deputy Managing Director. EFIC means the Export Finance and Insurance Corporation. EFIC's Commonwealth entities function means the function set out in paragraph 7(1)(dc). EFIC's national economy function means the function set out in paragraph 7(1)(df). EFIC's net zero function means the function set out in paragraph 7(1)(dg). EFIC's Northern Australia economic infrastructure functions means the functions set out in paragraphs 7(1)(da) and (db). EFIC's overseas infrastructure financing functions means the functions set out in paragraphs 7(1)(dd) and (de). eligible activity: see section 3B. export contract means a contract or arrangement: (a) for the export of goods produced or manufactured wholly or in part in Australia; or (b) for the rendering (whether inside or outside Australia) of a service to a person outside Australia. Finance Minister means the Minister who administers the Public Governance, Performance and Accountability Act 2013. guarantee includes the provision of stand‑by credit and any other form of monetary commitment supporting the performance of an obligation. large business: see section 3A. Managing Director includes a person acting as Managing Director. member means a member of the Board, and includes the Chairperson, the Deputy Chairperson and a person acting as a member of the Board. net zero transformation means achieving Australia's greenhouse gas emissions reduction targets and contributing to the reduction of global greenhouse gas emissions. Northern Australia economic infrastructure has the same meaning as in the Northern Australia Infrastructure Facility Act 2016. overseas infrastructure development means the development or enhancement of infrastructure that will be, or is, located or used wholly or substantially outside Australia. overseas infrastructure financing means lending money to support overseas infrastructure development, if EFIC reasonably believes that lending the money is likely to result in an Australian benefit. Note: Lending money includes providing finance, providing a financial accommodation or making an equity investment, in any form: see subsection (2). overseas investment transaction means: (a) the acquisition of shares or stock, or of any other interest, in a corporation incorporated in a foreign country, being a corporation: (i) that, either alone or with other persons, carries on, or proposes to carry on, a business in a foreign country; or (ii) that has a substantial shareholding in another corporation that, either alone or with other persons, carries on, or proposes to carry on, a business in a foreign country; or (b) the acquisition of a right to share in the income or assets, or the income and assets, of a business carried on, or proposed to be carried on, in a foreign country, whether as a partnership or otherwise; or (c) the lending of money to a person for use by that person in, or in connection with, a business carried on, or proposed to be carried on, by the person in a foreign country or the guaranteeing of, or the provision of other support for, the repayment of money so lent and the payment of interest or other charges that may become payable in respect of money so lent; or (d) the transferring of money to, or the importing of equipment or other goods into, a foreign country for use in, or in connection with, a business carried on, or proposed to be carried on, in a foreign country by the person transferring the money or importing the equipment or other goods; or (e) the transferring of money, or the supply of equipment or other goods, by a corporation to another corporation in which that first‑mentioned corporation has a substantial shareholding, being money, equipment or goods for use in, or in connection with, a business carried on, or proposed to be carried on, by that other corporation in a foreign country. Paris Agreement means the Paris Agreement, done at Paris on 12 December 2015, as amended and in force for Australia from time to time. Note: The Agreement is in Australian Treaty Series 2016 No. 24 ([2016] ATS 24) and could in 2022 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au). related party, for a business, has the meaning given by section 228 of the Corporations Act 2001. responsible Ministers means: (a) the Minister administering this Act; and (b) the Finance Minister. short‑term insurance contract means an export payments insurance contract under section 14 that covers a loss or detriment arising out of a contract or arrangement whose initial payment term is no longer than 360 days, but does not include an export payments insurance contract that EFIC has entered into, whether wholly or partly, in accordance with an approval or direction under Part 5. substantial part of a business means a part of a business that is substantial and not minor or insignificant. Loans and lending of money (2) In this Act, a reference to a loan or to the lending of money includes a reference to the provision of finance, the provision of a financial accommodation or the making of equity investments, in any form. Eligible export transactions (3) For the purposes of this Act, a transaction is an eligible export transaction if, in whole or in part, it involves, is associated with, or is incidental or related to: (a) the export from Australia of goods produced or manufactured wholly or substantially in Australia; or (b) the production or manufacture in Australia, wholly or substantially, of goods that are to be exported from Australia; or (c) the supply, installation, erection, operation, maintenance or repair of goods produced or manufactured wholly or substantially in Australia and exported from Australia; or (d) the rendering in Australia or a foreign country: (i) of any services in or in connection with the supply, installation, erection, operation, maintenance or repair of goods produced or manufactured wholly or substantially in Australia and exported from Australia; or (ii) of any construction, technological, managerial or other services (whether in connection with such goods or otherwise) for a person carrying on business in a foreign country or for the government, or an agency of the government, of that country or of any political subdivision of that country; or (e) the supply to persons who are not ordinarily resident in Australia of services relating to tourism; or (f) the conduct of an online business with customers outside Australia; or (g) the sale or licensing of intellectual property and related rights to persons outside Australia; or (h) direct investment outside Australia where a benefit flows back to Australia (whether directly or indirectly). Australian export trade (5) In this Act, a reference to Australian export trade includes a reference to any transaction (including the rendering of a service) involving a benefit flowing directly or indirectly from overseas to a person carrying on business or other activities in Australia. 3A Meaning of large business (1) A business is a large business at a particular time in a financial year (the current financial year) if: (a) its revenue for the previous financial year is $150,000,000 or more; or (b) if there was no time in the previous financial year when the business was carried on—its revenue for the current financial year is as at that time $150,000,000 or more. (2) Revenue is to be calculated for the purposes of this section in accordance with accounting standards in force at the relevant time. 3B Meaning of eligible activity For the purposes of this Act, an activity is an eligible activity if it is one or more of the following: (a) an activity carried out with respect to trade and commerce: (i) between Australia and places outside Australia; or (ii) among the States; or (iii) within a Territory, between a State and a Territory or between 2 Territories; (b) an activity carried out with respect to the defence of Australia; (c) an activity with respect to a postal, telegraphic, telephonic or other like service (within the meaning of paragraph 51(v) of the Constitution); (d) an activity that contributes to the achievement of Australia's obligations under the Paris Agreement; (e) an activity that contributes to the achievement of Australia's obligations under an international agreement other than the Paris Agreement; (f) an activity with respect to the provision of medical or dental services by the Commonwealth; (g) an activity with respect to a fishery to which paragraph 51(x) of the Constitution applies; (h) an activity with respect to astronomical or meteorological observations; (i) an activity the carrying on of which would be supported by the power of the Parliament to make laws with respect to nationhood; (j) an activity carried out in, or in relation to, a Territory; (k) an activity carried out in, or in relation to, a Commonwealth place (within the meaning of the Commonwealth Places (Application of Laws) Act 1970); (l) an activity with respect to persons, places, matters or things outside Australia; (m) an activity that a constitutional corporation carries out in the performance or development of its activities, functions, relationships or business. 3C Terms and conditions of insurance, financial services or products for certain activities carried out by constitutional corporations (1) This section applies if EFIC enters into a contract of insurance, or provides a financial service or product, in relation to one or more activities carried out by a constitutional corporation that are not eligible activities under one or more of paragraphs 3B(a) to (l). (2) The terms and conditions on which the contract is entered into, or the financial service or product is provided, must be set out in a written agreement between EFIC and the constitutional corporation. (3) The constitutional corporation must comply with the terms and conditions. (4) Without limiting subsection (2), the terms and conditions must provide for the circumstances in which the constitutional corporation must repay amounts to EFIC. (5) An amount payable to EFIC under the agreement: (a) is a debt due to EFIC; and (b) may be recovered by EFIC in a court of competent jurisdiction. 4 Extension to Territories (1) Subject to subsection (2), this Act extends to all the Territories. (2) The Minister may, by notice published in the Gazette, declare that, on a specified day, this Act is to cease to extend to a specified external Territory. (3) On and from the day specified in the notice: (a) this Act does not extend to the specified Territory; and (b) a reference in this Act to a Territory does not include the specified Territory; and (c) this Act has effect as if the specified Territory were a foreign country. 5 Application of Act outside Australia This Act applies both within and outside Australia. 5A Application of the Criminal Code Chapter 2 of the Criminal Code applies to all offences against this Act. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. Part 2—Establishment and functions of Export Finance and Insurance Corporation 6 Establishment of EFIC (1) There is established by this Act a corporation called the Export Finance and Insurance Corporation. (2) EFIC: (a) is a body corporate; and (b) is to have a seal; and (c) may acquire, hold and dispose of real and personal property; and (d) may sue and be sued in its corporate name. Note: The Public Governance, Performance and Accountability Act 2013 applies to EFIC. That Act deals with matters relating to corporate Commonwealth entities, including reporting and the use and management of public resources. (3) The seal of EFIC is to be kept in such custody as the Board directs, and must not be used except as authorised by the Board. (4) All courts, judges and persons acting judicially are to take judicial notice of the imprint of the seal of EFIC appearing on a document and are to presume that the document was duly sealed. 7 Functions of EFIC (1) The functions of EFIC are as follows: (a) to facilitate and encourage Australian export trade by providing insurance and financial services and products to persons involved directly or indirectly in such trade; (b) to encourage ADIs, and other financial institutions, carrying on business in Australia to finance, or assist in financing, export contracts or eligible export transactions; (c) in relation to overseas aid projects that involve the making of payments under export contracts out of money made available by the Commonwealth or a Commonwealth instrumentality, on behalf of the Commonwealth or that instrumentality, as the case may be: (i) to manage the application of money made available by the Commonwealth or the Commonwealth instrumentality; and (ii) to ensure that payments under those contracts are properly authorised; and (iii) to attend to payments out of that money; (d) to provide information and advice to any person regarding insurance or financial arrangements available to support Australian export trade; (da) to assist the Northern Australia Infrastructure Facility in the performance of the functions of the Facility; (db) as agreed between EFIC and the States and Territories, to provide incidental assistance to the States and Territories in relation to financial arrangements and agreements related to the terms and conditions of grants of financial assistance for the construction of Northern Australia economic infrastructure; (dc) as directed by the Minister, to assist Commonwealth entities and Commonwealth companies in performing their functions or achieving their purposes by providing services in relation to financial arrangements and agreements; (dd) to engage in overseas infrastructure financing under section 23A; (de) to encourage and facilitate overseas infrastructure financing by: (i) giving guarantees under section 18A; and (ii) encouraging ADIs, and other financial institutions, carrying on business in Australia to engage in, or assist in, overseas infrastructure financing; and (iii) providing information and advice to any person regarding overseas infrastructure financing; (df) to encourage and facilitate eligible activities that support Australia's economic resilience and security; (dg) to encourage and facilitate activities that support the net zero transformation; (e) to do any other act or thing required by or under this or any other Act to be done by EFIC. (2) For the purposes of paragraph (1)(c), an overseas aid project is a project under which the Commonwealth, or an instrumentality of the Commonwealth, proposes to provide funds to assist in the social and economic development of a foreign country. (3) The reference in paragraph (1)(dc) to providing services in relation to financial arrangements and agreements does not include the provision of loans, insurance or guarantees. Note: The provision of loans includes providing finance, providing a financial accommodation or making an equity investment, in any form: see subsection 3(2). 8 Primary duties of EFIC (1) EFIC is to perform its functions in such a manner as will best assist the development of Australian export trade. (2) In performing its functions, EFIC must: (a) comply with any directions given under section 9; and (b) have regard to: (i) the desirability of improving and extending the range of insurance and other financial services and products available (whether from EFIC or otherwise) to persons involved, or likely to be involved, directly or indirectly, in Australian export trade; and (ii) the need to provide its services and products as efficiently and economically as possible; and (iii) Australia's obligations under international agreements (including the Paris Agreement), and Australia's greenhouse gas emissions reduction targets; and (iv) in the case of EFIC's overseas infrastructure financing functions—Australia's commitments under the Statement on International Public Support for the Clean Energy Transition. (3) Subsection (1) and subparagraphs (2)(b)(i) and (iii) do not apply in relation to: (a) EFIC's Northern Australia economic infrastructure functions; or (b) EFIC's Commonwealth entities function. EFIC's overseas infrastructure financing functions (4) EFIC is to perform EFIC's overseas infrastructure financing functions in such a manner as EFIC reasonably believes is likely to result in the maximum Australian benefits. (5) Subsection (1) and subparagraph (2)(b)(i) do not apply in relation to EFIC's overseas infrastructure financing functions. EFIC's national economy and net zero functions (6) Subsection (1) and subparagraph (2)(b)(i) do not apply in relation to EFIC's national economy and net zero functions. 9 Ministerial directions to EFIC (1) Except as expressly provided by this Act, EFIC is not subject to direction by either of the responsible Ministers. (2) The responsible Ministers may give written directions to EFIC with respect to the performance of its functions or the exercise of its powers if the responsible Ministers are satisfied that it is desirable in the public interest that the directions be given. (3) EFIC must comply with any direction under subsection (2). (4) Particulars of directions under subsection (2) are to be included in the annual report of EFIC in accordance with subsection 85(2). (5) Subsection (2) is not intended to authorise a direction: (a) requiring any Minister's approval of the entry by EFIC into a particular contract or the giving by EFIC of a particular guarantee or the making of a particular loan; or (b) giving any Minister power to determine that EFIC is or is not to enter into a particular contract, give a particular guarantee or make a particular loan. (6) Subsection (5) does not apply in relation to: (a) EFIC's Northern Australia economic infrastructure functions; or (b) EFIC's Commonwealth entities function. 10 Reimbursement of cost of complying with directions (1) If the responsible Ministers are satisfied that, during a particular period, EFIC has suffered financial detriment as a result of complying with a direction under section 9, EFIC is entitled to be reimbursed by the Commonwealth the amount of the detriment as determined in writing by the responsible Ministers. (2) The reference in subsection (1) to EFIC suffering financial detriment as a result of complying with a direction includes a reference to EFIC: (a) suffering a loss in complying with the direction; or (b) incurring costs in complying with the direction that EFIC would not otherwise have incurred; or (c) incurring costs in complying with the direction that are greater than the costs EFIC would otherwise have incurred; or (d) in complying with the direction, forgoing revenue that EFIC could otherwise have received. (3) This section does not apply to a direction expressed to be given in accordance with the general policy of the Commonwealth Government. Part 3—General powers and duties of EFIC 11 General powers of EFIC (1) EFIC has power to do all things necessary or convenient to be done for or in connection with, or incidental to, the performance of its functions. (2) In particular, EFIC may: (a) enter into contracts; and (b) appoint agents and attorneys, and act as agent for other persons; and (c) engage persons to perform services for EFIC; and (d) enter into: (i) arrangements known as swaps, foreign exchange agreements, forward rate agreements, options or hedge agreements; or (ii) arrangements having a similar purpose or effect; and (e) accept gifts, grants, bequests and devises made to it, and act as trustee of money or other property vested in it on trust; and (f) do anything incidental to any of its powers or the exercise of any of those powers. Note: Section 59 of the Public Governance, Performance and Accountability Act 2013 also gives EFIC the power to invest money that is not immediately required for the purposes of EFIC. (3) A power conferred by subsection (1) is not to be taken to be limited merely by implication from another provision, whether of this or any other Act, that confers a power on EFIC. (4) So far as practicable, EFIC must exercise its powers in a way that will give effect to the corporate plan in force at the time. (5) EFIC may provide insurance or financial services or products, information or advice for reward. (6) EFIC's powers may be exercised within or outside Australia. 12 Offices of EFIC EFIC may have offices in such places, whether in Australia or elsewhere, as the Board thinks appropriate to further the efficient performance of EFIC's functions. 13 Formation of companies, partnerships etc. (1) EFIC may: (a) arrange for the formation of a company; or (b) join in the formation of a company, partnership, joint venture or other business association; for any purpose connected with, or incidental to, EFIC's functions. (2) EFIC may only exercise a power under subsection (1) if: (a) the exercise of the power would be consistent with the achievement of the objectives of EFIC as set out in the corporate plan in force at the time; and (b) the power is exercised on terms and conditions approved in writing by the Minister. Part 4—Insurance and financial services and products 14 Export payments insurance contracts (1) EFIC may enter into export payments insurance contracts with, or for the benefit of, persons carrying on business or other activities in Australia. (2) An export payments insurance contract is a contract of insurance against risk of direct or indirect monetary loss or other detriment resulting from failure to receive payment in connection with, or otherwise arising out of, acts or transactions in the course of, or for the purposes of, Australian export trade. 15 Reinsurance etc. in relation to business of EFIC (1) EFIC may enter into a contract of insurance or indemnity, take a guarantee or take security to cover any actual or contingent liability of EFIC in respect of contracts entered into, or guarantees given, under this Part. (2) EFIC may enter into any other contract in order to reduce or reschedule any actual or contingent liability of EFIC in respect of contracts entered into, or guarantees given, under this Part. 16 Guarantees and subsidies in relation to loans to Australian suppliers (1) Where: (a) a person (in this section called the lender) has lent, or proposes to lend, other than in the form of an equity investment, money to a person who is carrying on business in Australia; and (b) the purpose of the loan or proposed loan is the financing, in whole or in part, of Australian export trade; EFIC may guarantee to the lender the repayment of the whole, or any part, of the money lent, or proposed to be lent, and the payment of the whole, or a part, of any interest or other charges that may become payable to the lender in respect of the money lent. (2) Where EFIC has given, or proposes to give, a guarantee to the lender, EFIC may enter into a contract with the lender under which, in consideration of the lender making or agreeing to make the loan, EFIC agrees to pay the lender, in specified circumstances, an amount ascertained in accordance with the contract. (3) However, EFIC must not make a guarantee or enter into a contract under this section in relation to a loan or a proposed loan that is to be used for the dominant purpose of direct investment outside Australia unless the requirements in subsection (4) are satisfied. (4) For the purposes of subsection (3), the requirements are the following: (a) the person who carries on the business must certify, by writing given to EFIC, that the person reasonably believes that the loan will result in a net increase in the number of people employed in Australia by the business, or a related party of the business, during the term of the loan; (b) at the completion of the loan, the person carrying on the business must certify to EFIC whether the loan has resulted in a net increase in the number of people employed in Australia by the business, or a related party of the business; (c) if the business is a large business—the person who carries on the business must certify, by writing given to EFIC, that the loan will not be used to move the whole or a substantial part of the business, or of a related party of the business, overseas; and (d) EFIC must ensure that it publicly discloses copies of the certification it receives under subsection (4)(b). 17 Guarantees and subsidies in relation to loans to overseas buyers etc. (1) Where a person (in this section called the lender) has lent, or proposes to lend, other than in the form of an equity investment, money to a person for the purpose of financing, in whole or in part, the making of payments under: (a) an export contract; or (b) a contract for the sale of goods, or for the performance of works or services outside Australia, for the purpose of performing which a party to the contract has entered into an export contract; EFIC may guarantee to the lender the repayment of the whole, or any part, of the money lent, or proposed to be lent, and the payment of the whole or a part of any interest or other charges that may become payable to the lender in respect of the money lent. (2) Where EFIC has given, or proposes to give, a guarantee to the lender, EFIC may enter into a contract with the lender under which, in consideration of the lender making or agreeing to make the loan, EFIC agrees to pay the lender, in specified circumstances, an amount ascertained in accordance with the contract. 18 Guarantees to co‑lenders in relation to export transactions Where, for the purpose of financing, in whole or in part, an eligible export transaction: (a) EFIC has lent, or proposes to lend, other than in the form of an equity investment, money under section 23 to a person; and (b) another person (in this section called the co‑lender), by arrangement with EFIC, has also lent, or proposes to lend, other than in the form of an equity investment, money to that person, or to another person; EFIC may guarantee to the co‑lender the repayment of the whole or any part of the money lent, or to be lent, by the co‑lender and the payment of the whole or a part of any interest or other charges that may become payable to the co‑lender in respect of the money lent, or to be lent, by the co‑lender. 18A Guarantees in relation to overseas infrastructure development If a person (in this section called the lender) has lent, or proposes to lend (other than in the form of an equity investment) money to a person for the purpose of supporting overseas infrastructure development, EFIC may guarantee to the lender: (a) the repayment of the whole, or any part, of the money lent, or to be lent; and (b) the payment of the whole or a part of any interest or other charges that may become payable to the lender in respect of the money lent, or to be lent. 19 Tender guarantees and performance guarantees (1) EFIC may enter into a contract under which an indemnity or guarantee is given to a person in relation to a tender or proposed tender for, or in relation to the performance of, a contract or proposed contract that is, or will be: (a) an export contract; or (b) either in whole or in part, an eligible export transaction; or (c) a contract associated with such a transaction. (2) Subsection (1) applies to a contract which, however expressed and in whatever form, is in substance an indemnity or guarantee. 20 Reinsurance of guarantees, insurance etc. relating to export business etc. (1) EFIC may enter into a contract under which it gives an indemnity or guarantee to a person in respect of a liability to which this section applies. (2) The liabilities to which this section applies are as follows: (a) the liability of an insurer under a contract, whether entered into in Australia or elsewhere, to give an indemnity or guarantee in respect of monetary loss or other detriment suffered in connection with a transaction involving: (i) goods exported, or to be exported, under an export contract; or (ii) goods in the production or treatment of which goods referred to in subparagraph (i) have been, or are to be, used; or (iii) services rendered, or to be rendered, under an export contract; (b) the liability of a person under a contract under which the person has given a guarantee in respect of the loan, or proposed loan, of moneys for the purpose of financing, in whole or in part, the making of payments under a contract referred to in subsection 17(1); (c) the liability of a person under an indemnity or guarantee given, or proposed to be given, by the person in relation to a tender or proposed tender of a kind referred to in subsection 19(1). (3) An indemnity or guarantee given in respect of a liability referred to in paragraph (2)(a) must relate only to such part of the liability as may reasonably be regarded as related to the goods or services referred to in subsection (2). (4) An indemnity or guarantee given in relation to a liability referred to in paragraph (2)(b) must relate only to so much of the liability as does not exceed: (a) where the indemnity or guarantee under which the liability arises relates to money lent, or proposed to be lent, for the purpose of financing payments under an export contract—the amount, or the total of the amounts, payable under that contract in respect of goods or services to which that export contract relates; or (b) where the indemnity or guarantee under which the liability arises relates to money lent, or proposed to be lent, for the purpose of financing payments under a contract for the purpose of performing which a party to that contract has entered into an export contract—the amount, or the total of the amounts, payable under that export contract in respect of goods or services to which that export contract relates. (5) A reference in this section to a contract under which an indemnity or guarantee is given is a reference to a contract which, however expressed and in whatever form, is in substance a contract for the giving of an indemnity or guarantee. 21 Approved causes of loss (1) EFIC may declare a specified cause of loss to be an approved cause of loss for the purposes of this Part. (2) A declaration under subsection (1): (a) must be in writing; and (b) takes effect on the day specified in the declaration. (3) As soon as practicable after making or revoking a declaration, EFIC must cause a copy of the declaration or the instrument of revocation to be published in the Gazette. 22 Insurance in respect of overseas investment transactions (1) This section applies to: (a) a person who carries on business in Australia; and (b) any corporation in which such a person has a substantial shareholding. (2) A person to whom this section applies who proposes to enter into an overseas investment transaction may apply to EFIC to enter into a contract of insurance insuring the person against risk of direct or indirect monetary loss or other detriment in respect of the transaction arising out of an approved cause of loss specified in the application. (3) A person to whom this section applies who has entered into an overseas investment transaction may apply to EFIC to enter into a contract of insurance insuring the person against risk of direct or indirect monetary loss in respect of payments generated by the transaction where the loss or detriment arises out of an approved cause of loss specified in the application. (4) The reference in subsection (3) to payments generated by a transaction is a reference to payments generated after the application is made to EFIC. (5) An application must be in writing. (6) On receipt of an application, EFIC may enter into a contract of insurance of the kind referred to in subsection (2) or (3), as the case may be, in respect of the whole or a part of the overseas investment transaction to which the application relates. (7) EFIC must not enter into a contract of insurance under which a person is insured against loss or detriment attributable to circumstances within the control of the person. 23 Loans to finance eligible export transactions (1) Where an eligible export transaction has been entered into, or is proposed to be entered into, EFIC may lend money for the purpose of financing the transaction in whole or in part. Note: EFIC's power under subsection (1) to lend money includes the power to provide finance, to provide a financial accommodation or to make an equity investment, in any form: see subsection 3(2). (2) The money may be lent to such person or persons as EFIC thinks appropriate, whether or not the person or persons are, or will be, party to the transaction or proposed transaction. (3) However, EFIC must not lend money (other than in the form of an equity investment) under this section for the purpose of financing a transaction whose dominant purpose is direct investment outside Australia by a person carrying on business in Australia unless the requirements in subsection (4) are satisfied. (4) For the purposes of subsection (3), the requirements are the following: (a) a person to whom the money is lent must certify, by writing given to EFIC, that the person reasonably believes that the loan will result in a net increase in the number of people employed in Australia by the business, or a related party of the business, during the term of the loan; (b) at the completion of the loan, the person carrying on the business must certify to EFIC whether the loan has resulted in a net increase in the number of people employed in Australia by the business, or a related party of the business; (c) if the business is a large business—the person who carries on the business must certify, by writing given to EFIC, that the loan will not be used to move the whole or a substantial part of the business, or of a related party of the business, overseas; and (d) EFIC must ensure that it publicly discloses copies of the certification it receives under subsection (4)(b). (5) In addition, EFIC must not lend money in the form of an equity investment under this section unless an application for the loan has been referred to the Minister under section 25. Note: A direction under section 26 may prevent such applications from being referred to the Minister. EFIC cannot lend money under this section in those circumstances. 23A Loans to support overseas infrastructure development (1) EFIC may lend money for the purpose of supporting overseas infrastructure development. Note: EFIC's power under subsection (1) to lend money includes the power to provide finance, to provide a financial accommodation or to make an equity investment, in any form: see subsection 3(2). (2) The money may be lent to such person or persons as EFIC thinks appropriate. (3) However, EFIC must not lend money under this section unless EFIC reasonably believes that lending the money is likely to result in an Australian benefit. Note: See also subsection 8(4). (4) In addition, EFIC must not lend money in the form of an equity investment under this section unless the application for the loan has been referred to the Minister under section 25. Note: A direction under section 26 may prevent such applications from being referred to the Minister. EFIC cannot lend money under this section in those circumstances. 23B Services and products to support EFIC's national economy and net zero transformation functions (1) EFIC may do one or more of the following for the purposes of EFIC's national economy and net zero functions: (a) enter into a contract of insurance or indemnity; (b) give a guarantee; (c) make a loan. Note: A reference to a loan or to the lending of money includes a reference to the provision of finance, the provision of a financial accommodation or the making of equity investments, in any form: see subsection 3(2). (2) However, EFIC must not provide a service or product under this section unless an application for the service or product has been referred to the Minister under section 25. Note 1: A direction under section 26 may prevent such applications from being referred to the Minister. EFIC cannot provide support under this section in those circumstances. Note 2: The Future Made in Australia Act 2024 may also prevent the provision of a service or product under this section in certain circumstances: see paragraph 10(2)(b) and section 10A of that Act (Future Made in Australia support not to be provided for coal, natural gas or crude oil etc.). 23C Approval required before providing services or products to finance certain coal, crude oil or natural gas activities Despite any other provision of this Part, EFIC must not provide a service or product under this Part that would: (a) directly finance the extraction of coal, crude oil or natural gas; or (b) directly finance the construction of infrastructure for the primary purpose of extracting coal, crude oil or natural gas; or (c) directly finance investments for the sole purpose of the use of coal, crude oil or natural gas; unless an application for the service or product has been referred to the Minister under section 25. Note: A direction under section 26 may prevent such applications from being referred to the Minister. EFIC cannot provide a service or product covered by this section in those circumstances. Part 5—National interest transactions 24 Interpretation In this Part, referred application means an application that has been referred to the Minister under section 25. 25 Reference of applications to Minister (1) Subject to any directions under section 26, EFIC may refer to the Minister an application for EFIC to: (a) enter into a contract of insurance or indemnity under Part 4; or (b) give a guarantee under Part 4; or (c) make a loan under Part 4. (2) An application relating to a proposed contract or a proposed guarantee may be referred to the Minister whether or not EFIC is authorised to enter into the contract or give the guarantee and whether or not it would do so in the ordinary course of business. (3) An application relating to a proposed loan may be referred to the Minister: (a) whether or not EFIC is authorised to make the loan, or to make the loan on the terms and conditions proposed; and (b) whether or not EFIC would make the loan, or would make the loan on the terms and conditions proposed, in the ordinary course of business. 26 Ministerial directions regarding reference of applications (1) The Minister may give EFIC written directions regarding the circumstances in which applications are, or are not, to be referred to the Minister. (2) EFIC must comply with the Minister's directions. 27 Approval of EFIC entering into contracts etc. (1) The Minister may approve of EFIC entering into a contract of insurance or indemnity (other than a contract under section 22) if the Minister is satisfied that it is in the national interest for EFIC to enter into the contract. (2) The Minister may approve of EFIC giving a guarantee if the Minister is satisfied that it is in the national interest for EFIC to give the guarantee. (3) The Minister may approve of EFIC entering into a contract of insurance under section 22 if the Minister is satisfied that: (a) an overseas investment transaction to which the contract will relate will assist in the social and economic development of a foreign country; and (b) it is in the national interest that EFIC enter into the contract in respect of the whole or a part of that transaction. (4) The Minister may approve of EFIC making a loan under section 23 in respect of an eligible export transaction if the Minister is satisfied that it is in the national interest that EFIC make the loan in respect of the transaction. Note: The provision of loans includes providing finance, providing a financial accommodation or making an equity investment, in any form: see subsection 3(2). (4A) The Minister may approve of EFIC making a loan under section 23A in respect of overseas infrastructure development if the Minister is satisfied that it is in the national interest that EFIC make the loan in respect of the development. Note: The provision of loans includes providing finance, providing a financial accommodation or making an equity investment, in any form: see subsection 3(2). (4B) The Minister may approve of EFIC making a loan under section 23B if the Minister is satisfied that it is in the national interest that EFIC make the loan. Note: The provision of loans includes providing finance, providing a financial accommodation or making an equity investment, in any form: see subsection 3(2). (5) The Minister's approval of entry into a contract of insurance under section 22 may be an approval of entry into the contract in relation to the whole or a specified part of the overseas investment transaction concerned. (6) The Minister must not approve the entry by EFIC into a contract of insurance under section 22 under which a person would be insured against loss or detriment attributable to circumstances within the control of the person. (7) The Minister's approval is to be in writing. (8) EFIC has power to enter into a contract, give a guarantee, or make a loan in accordance with an approval under this section. (9) While an approval under this section remains in force, EFIC must not decline a request that it enter into a contract, give a guarantee, or make a loan in accordance with the approval. 28 Conditional approvals An approval under section 27 may be given subject to conditions, including: (a) where the approval relates to a contract of insurance or indemnity under Part 4 (other than a contract of insurance under section 22) or a guarantee under Part 4—conditions relating to the amount of the premium or fee to be charged by EFIC; and (b) where the approval relates to a contract of insurance under section 22—conditions relating to: (i) the amount of the premium or fee to be charged by EFIC; and (ii) the cause of the loss or detriment to which the contract may relate; and (c) where the approval relates to a loan under Part 4—conditions relating to the amount of the loan, the rate of interest to be charged (if applicable), other terms and conditions of the loan and the security (if any) to be given. 29 Ministerial directions regarding entry into national interest contracts etc. (1) The Minister may direct that whenever EFIC receives an application for EFIC to enter into a contract of insurance or indemnity included in a specified class of contracts of insurance or indemnity under Part 4, EFIC is to enter into the transaction, whether or not EFIC would, apart from this section, be authorised to enter into the transaction and whether or not EFIC would enter into the transaction in the ordinary course of business. (2) The Minister may direct that whenever EFIC receives an application for EFIC to give a guarantee included in a specified class of guarantees under Part 4, EFIC is to give the guarantee, whether or not EFIC would, apart from this section, be authorised to give the guarantee or would give the guarantee in the ordinary course of business. (3) The Minister may direct that whenever EFIC receives an application for EFIC to make a loan included in a specified class of loans under Part 4, EFIC is to make the loan, whether or not EFIC would, apart from this section, be authorised to make the loan or to make the loan on the terms and conditions proposed and whether or not EFIC would make the loan, or would make the loan on the terms and conditions proposed, in the ordinary course of business. (4) The Minister may only give a direction if he or she considers it is in the national interest that the direction be given. (5) A direction may include requirements relating to: (a) where the direction relates to a contract of insurance or indemnity (other than a contract of insurance under section 22) or a guarantee—the amount of the premium or fee to be charged by EFIC; or (b) where the direction relates to a contract of insurance under section 22: (i) the amount of the premium to be charged by EFIC; and (ii) the cause of the loss or detriment to which the contract may relate; or (c) where the direction relates to a loan under Part 4—the amount of the loan, the rate of interest to be charged (if applicable), other terms and conditions of the loan and security (if any) to be given. (6) The Minister must not direct EFIC to enter into a contract of insurance that would have the effect of a person being insured against loss or detriment attributable to circumstances within the control of the person. (7) A direction under this section must be in writing. (8) EFIC has power to enter into a contract, give a guarantee or make a loan, in accordance with a direction under this section. (9) While a direction under this section remains in force, EFIC must not decline a request that it enter into a contract, give a guarantee or make a loan, in accordance with the direction. 30 Gazettal of national interest contracts etc. (1) Where EFIC enters into a contract, gives a guarantee or makes a loan in accordance with an approval or direction under this Part, EFIC must cause notice of the contract, guarantee or loan to be published in the Gazette. (2) A notice under subsection (1) must set out the following particulars: (a) in the case of a contract of insurance or indemnity—particulars of the nature and extent of the insurance or indemnity; (b) in the case of a guarantee—particulars of the nature and extent of the guarantee; (c) in the case of a loan—particulars of the amount of the loan and the rate of interest to be charged (if applicable) on the money lent. (3) A notice under subsection (1) must also set out particulars of: (a) in the case of a contract or guarantee—the proportion of the liability under the contract or guarantee that is to be borne by the Commonwealth; or (b) in the case of a loan—the proportion (if any) of the risk associated with the loan that is to be borne by the Commonwealth. (4) A notice under subsection (1) must not state the name of any of the parties to a contract or of any person in respect of whom a guarantee has been given by EFIC. 31 Reinsurance etc. in relation to EFIC business under Part 5 (1) EFIC may, with the written approval of the Minister, enter into a contract of insurance or indemnity, take a guarantee or take security to cover any actual or contingent liability of EFIC in respect of contracts entered into, or guarantees given, in accordance with an approval or direction under this Part. (2) EFIC may, with the written approval of the Minister, enter into any other contract in order to reduce or reschedule any actual or contingent liability of EFIC in respect of contracts entered into, or guarantees given, in accordance with an approval or direction under this Part. (3) The Minister may, in writing, direct EFIC to exercise its power under subsection (1) or (2) in respect of a contract entered into, or a guarantee given, in accordance with an approval or direction under this Part. (4) EFIC must comply with a direction. Part 6—Board 32 Establishment of the Board There is established an Export Finance and Insurance Corporation Board. 33 Functions of the Board (1) It is the function of the Board to manage the affairs of EFIC. (2) The Board's role under subsection (1) includes the determination of the policy to be followed in the conduct of the affairs of EFIC. (3) A decision of the Board is not invalid merely because the Board has limited the exercise of its discretion in the particular case and made the decision in accordance with a general policy determined by the Board. (4) Anything done by the Board in the name of, or on behalf of, EFIC for the purposes of this Act or any other Act that confers powers or functions on EFIC is taken to have been done by EFIC. 34 Membership of the Board (1) The Board consists of the following members: (a) the Chairperson; (b) the Deputy Chairperson; (c) the Managing Director; (e) the government member; (f) as many other members, not fewer than 2 nor more than 5, as the responsible Ministers determine in writing to be appropriate. (2) The members of the Board, other than the Managing Director of EFIC, are appointed by the responsible Ministers. (3) Appointed members are to be appointed on a part‑time basis. (4) The exercise of a power, or the performance of a function, of the Board is not affected merely because of a vacancy or vacancies in the membership of the Board or because the number of appointed members referred to in paragraph (1)(f) falls below 2 for not longer than 6 months. 35 Term of office and conditions of office of members (1) An appointed member, other than the government member, must be appointed for a term of 3 years. (1A) An appointed member, other than the government member, is eligible for reappointment but must not hold office as a member of the Board for a total of more than: (a) 2 terms; or (b) if the member has been appointed at any time as the Chairperson—3 terms. (2) The government member holds office during the responsible Ministers' pleasure. 36 Terms and conditions of appointment Appointed members hold office on such terms and conditions (if any) in respect of matters not provided for by this Act as are determined in writing by the responsible Ministers. 37 Remuneration etc. of appointed members (1) An appointed member (other than the government member) is to be paid: (a) such remuneration as is determined by the Remuneration Tribunal; and (b) such allowances as are prescribed. (2) This section has effect subject to the Remuneration Tribunal Act 1973. 38 Acting Chairperson and acting Deputy Chairperson (1) Whenever: (a) there is a vacancy in the office of Chairperson (whether or not an appointment has previously been made to the office); or (b) the Chairperson is absent from duty or is, for any other reason, unable to perform the functions of the office; the Deputy Chairperson is to act as Chairperson. Note: For rules that apply to persons acting as the Chairperson, see section 33A of the Acts Interpretation Act 1901. (2) The responsible Ministers may appoint a person to act as Deputy Chairperson: (a) during a vacancy in the office of Deputy Chairperson (whether or not an appointment has previously been made to the office); or (b) during any period, or during all periods, when the Deputy Chairperson is absent from Australia or is, for any other reason (including the reason that the Deputy Chairperson is acting as Chairperson) unable to perform the functions of the office. Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901. (3) The Managing Director or Deputy Managing Director is not entitled to any remuneration or allowances in relation to an appointment under this section. 39 Acting members (1) The responsible Ministers may appoint a person to act as a member of the Board referred to in paragraph 34(1)(f): (a) during a vacancy in the office of such a member (whether or not an appointment has previously been made to the office); or (b) during any period, or during all periods, when such a member is acting as Chairperson or Deputy Chairperson, is absent from Australia or is, for any other reason, unable to perform the duties of the office. Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901. (2) The responsible Ministers may appoint a person to act as the government member during any period, or during all periods, when the government member is unable, for any reason, to attend meetings of the Board. Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901. 40 Leave of absence of appointed members (1) The Minister may give leave of absence to the Chairperson on such terms and conditions as the Minister determines. (2) The Chairperson may give any other appointed member leave of absence from a meeting. (3) The Minister must notify the Finance Minister if the Minister grants the Chairperson a leave of absence. 41 Resignation of appointed members An appointed member may resign by giving a signed notice of resignation to the responsible Ministers. 42 General provision for termination of appointment of appointed members (1) This section only applies to members referred to in paragraphs 34(1)(a), (b) and (f). (2) The responsible Ministers may terminate the appointment of an appointed member for misbehaviour or physical or mental incapacity. (3) The responsible Ministers must terminate the appointment of an appointed member who: (a) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit; or (b) is absent, except on leave of absence, from 3 consecutive meetings of the Board. Note: The appointment of an appointed member may also be terminated under section 30 of the Public Governance, Performance and Accountability Act 2013 (which deals with terminating the appointment of an accountable authority, or a member of an accountable authority, for contravening general duties of officials). 43 Termination of appointment of appointed members at instance of Board or for non‑performance etc. (1) This section only applies to members referred to in paragraphs 34(1)(a), (b) and (f). (2) The responsible Ministers may terminate the appointment of a member if: (a) the Board has resolved that the appointment of the member be terminated; and (b) the resolution was passed at a meeting of the Board convened for the purpose of considering a motion that the appointment of the member be terminated; and (c) the resolution was passed by not less than a two‑thirds majority of the members present, excluding the member to whom the resolution relates. (3) The responsible Ministers may terminate the appointment of a member if the responsible Ministers are satisfied: (a) that it is not in the best interests of EFIC that the member continue in office; or (b) that the performance of the member has been unsatisfactory for a significant period. 44 Meetings of the Board (1) The Board is to hold such meetings as are necessary for the performance of its functions. (2) The Minister or the Chairperson may at any time convene a meeting of the Board. (3) The Chairperson must convene a meeting of the Board on the written request of 2 or more members. (4) The Chairperson is to preside at all meetings of the Board at which he or she is present. (5) If the Chairperson is not present at a meeting of the Board, the Deputy Chairperson, if present, is to preside. (6) If neither the Chairperson nor the Deputy Chairperson is present at a meeting of the Board, the members present may elect one of their number to preside. (7) At a meeting of the Board, a quorum consists of 3 members. (8) A question arising at a meeting of the Board is to be decided by a majority of the votes of the members present and voting. (9) The member presiding at a meeting of the Board has a deliberative vote and, if the votes are equal, also has a casting vote. 46 Resolutions without meetings (1) Where a majority of the members (being a majority that includes the Chairperson) sign a document containing a statement that they are in favour of a resolution in terms set out in the document, a resolution in those terms is taken to have been passed at a duly constituted meeting of the Board held on the day the document was signed, or, if the members sign the document on different days, on the last of those days. (2) For the purpose of subsection (1), 2 or more documents containing statements in identical terms each of which is signed by one or more memb