Purpose of the Bill

The purpose of the Export Finance and Insurance Corporation Amendment (Equity Investments and Other Measures) Bill 2021 (the Bill) is to give legislative effect to the Government’s decision to broaden the range of transactions that Export Finance Australia (EFA) can finance.

Specifically, the Bill will amend the Export Finance and Insurance Corporation Act 1991 (the EFIC Act) to:

• permit EFA to make equity investments and
• permit EFA Australia to offer standalone guarantees for overseas infrastructure transactions.

Structure of the Bill

The Bill consists of two Schedules:

• Schedule 1 sets out the amendments to allow EFA to make equity investments
• Schedule 2 sets out the amendments to allow EFA to offer standalone guarantees for overseas infrastructure transactions.

Background

What is Export Finance Australia?

EFA, previously known as the Export Finance and Insurance Corporation, is the Australian Government’s export credit agency. It provides finance to support Australian exporting businesses and overseas infrastructure projects that are likely to result in an Australian benefit.[1] Its mandate is to facilitate and encourage Australian export trade.[2]

Many governments have their own export credit agencies which promote exports from their country. The OECD provides an incomplete list of export credit agencies around the world.[3]

What types of financial services can Export Finance Australia provide?

The types of financial services EFA can provide are prescribed by the EFIC Act. Under Part 4 of the EFIC Act, EFA can provide:

• export payments insurance contracts
• guarantees and subsidies in relation to loans to Australian suppliers
• guarantees and subsidies in relation to loans to overseas buyers
• guarantees to co-lenders in relation to export transactions and overseas infrastructure development
• tender guarantees and performance guarantees
• reinsurance of guarantee, insurance, et cetera, relating to export business
• insurance in respect of overseas investment transactions and
• loans to finance eligible export transactions and overseas infrastructure development.[4]

Traditionally, export credit agencies such as EFA would function as a lender of last resort for exporting businesses. This meant that export credit agencies did not compete with private banks and would only step in when private sector financing was unavailable.[5]

In recent years, however, some governments have increasingly relied on their export credit agencies to provide a wider range of financial services to exporting businesses.[6] For example, the Export Finance and Insurance Corporation Amendment (Support for Infrastructure Financing) Act 2019 expanded the power of EFA and increased the its level of callable capital.[7]

If passed, the Bill will grant EFA additional powers to:

• make equity investments and
• offer standalone financial guarantees for overseas infrastructure transactions.

What is an equity investment?

The Government makes an equity investment (also called equity financing) when it purchases an ownership interest in a private business in anticipation of future returns.[8] As an analogy, the popular TV show ‘Shark Tank’ is based on the concept of equity investment where a panel of billionaire investors may offer to purchase a piece of equity in start-up businesses in anticipation of future revenues.

In an equity investment transaction, businesses typically sell partial ownership or equity to investors to raise more capital, avoid taking on debts, and access particular skills and contacts from the investors.

The Government (as an investor) may choose to make equity investments for public or foreign policy purposes in addition to anticipation of future returns.[9] For example, in his second reading speech, the Assistant Treasurer, Mr Michael Sukkar, said: ‘Importantly, the equity power will also be made available to the Australian Infrastructure Financing Facility for the Pacific, further supporting Australia's Pacific Step-up’.[10]

What is a financial guarantee?

The Government provides a financial guarantee when it promises to take responsibility for a borrower’s financial obligation if the borrower fails to meet that obligation.[11]

For example, EFA can help an Australian exporting company by providing a guarantee to private banks that specifies if the company fails to meet its borrowing obligations, then EFA will take responsibility for the repayment of the loan.[12] This guarantee reduces loan default risk for the banks and therefore encourages the banks to lend to the exporting company.

Arguments for and against export credit agencies

There are divided opinions about the effectiveness of export credit agencies. Supporters of export credit agencies argue that the agencies can be an effective tool in supporting a country’s employment and economic growth by promoting its exports.[13]

Supporters believe export credit agencies address market failures by providing valuable financial services to exporting businesses to help them grow and tap into overseas markets.[14] In other words, if export credit agencies do not provide finance to exporting businesses, then potential opportunities in higher risk overseas markets would remain untapped.

Critics of export credit agencies include neoliberal economists and climate change activists. Neoliberal economists argue that export credit agencies play a harmful role in the economy because they dispense corporate welfare to some corporations at the expense of the taxpayers.[15] These critics believe that, in a free-market economy, the loans and services provided by export credit agencies should be done by private banks rather than a government agency.

Most of the government-run export credit agencies (including EFA) claim that they fill a ‘market gap’ by providing loans and services to businesses only when private financing is unavailable.[16] Critics believe this is another way of saying that export credit agencies offer loans to companies that private banks have chosen not to offer due to risk and volatility.[17] As such, critics believe the investment or loan decisions taken by export credit agencies are likely to be wasteful and risky,[18] and ‘discourages host governments from adopting market reforms necessary to genuinely attract private capital’.[19]

Furthermore, some climate change activists are critical of export credit agencies for providing finance to fossil fuel projects. For example, non-profit organisation Jubilee Australia claims that EFA provided up to $1.7 billion in financing to the fossil fuel sector – compared to $20.0 million for renewable energy projects – between 2009 and 2020.[20] This is in contrast to the practices of the ‘Big Four’ banks in Australia (Westpac, ANZ, NAB, and CBA), which have all pledged their support to the United Nations Paris Agreement on Climate Change and made commitments to transition away from what they perceive as environmentally polluting and commercially unviable projects.[21]

Committee consideration

Senate Foreign Affairs, Defence and Trade Legislation Committee

The Bill was referred to the Senate Foreign Affairs, Defence and Trade Legislation Committee (the FADT Committee) for inquiry.[22] The FADT Committee published its final report on 20 August 2021 and the majority of senators on the FADT Committee recommended that the Bill be passed.[23] The final report said:

In broadening its financing powers to include equity, EFA will be able to make investments in a greater range of infrastructure projects, and at an earlier stage of development. Notably, equity investments will be reserved for exceptional circumstances.

The Committee therefore supports providing EFA with a new overseas equity investment power and a stand-alone guarantee power in order to expand its range of capabilities and bring it into alignment with international and domestic peers.[24] [emphasis added]

Dissenting comments

Senator Larissa Waters, on behalf of the Australian Greens, made dissenting comments to the final report.[25]

The Greens made three recommendations:

• the Government delays introduction of the Bill until the independent review of infrastructure investment operations and the review of the Environmental and Social Review Policy have concluded
• the Government amends the Bill to expressly prohibit EFA investment, including refinancing and equity investment, in fossil fuel projects
• EFA’s exemption from the Freedom of Information Act 1982 (FOI Act) be repealed to increase transparency around EFA investment activity.[26]

Senate Standing Committee for the Scrutiny of Bills

The Scrutiny of Bills Committee had no comment on the Bill.[27]

Policy position of non-government parties/independents

Australian Labor Party

The Australian Labor Party expressed support for the Bill.[28] During the second reading debate on the Bill the Shadow Minister for Trade and Resources, Ms Madeleine King, said:

More opportunities to export Australian goods and services to the world means stronger Australian industries, and that means more jobs for more Australians. The current lack of an equity investment power restricts Export Finance Australia to a narrower range of transactions. An equity investment power will complement its existing suite of financing powers, comprised of loans, guarantees, bonds and insurance.[29]

Independents

Ms Zali Steggall and Dr Helen Haines proposed amendments to the Bill that mostly align with the recommendations made by the Greens in their dissenting comments (discussed above). The proposed amendments sought to restrict EFA’s ability to finance fossil fuel projects and partially revoke EFA’s exemption from the operation of the FOI Act.[30]

The proposed amendments were not passed.[31]

Position of major interest groups

Non-government organisations (NGOs)

Jubilee Australia Research Centre, the Australian Conservation Foundation, and ActionAid Australia provided a joint submission on the Bill to the FADT Committee.[32] The three organisations recommended the Bill should be amended to place a greater emphasis on climate change.

Specifically, the NGOs recommended that the Bill should contain provisions to:

• prohibit EFA from financing fossil fuel projects
• require EFA to ‘perform its functions in a way that contributes to Australia’s implementation of the Paris Agreement’
• require EFA to ‘consider whether a project to be financed (including where the financing is an equity investment) delivers benefits for the recipient nation’
• amend the FOI Act to revoke EFA’s partial exemption
• ensure EFA strengthens its environmental and social review policy and procedures.[33]

The Department of Foreign Affairs and Trade (DFAT) and EFA responded to the recommendations of the NGOs via a supplementary submission to the FADT Committee.[34]

Financial implications

The Government considers that the Bill will have no direct financial impact.[35] However, the Bill has the potential to affect the Commonwealth’s fiscal position, depending on the outcome of equity investments that EFA will undertake.

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[36]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights had no comment on the Bill.[37]

Key issues and provisions

Schedule 1—Equity investments

Items 1 to 3, 8, 11 and 13-14 of Schedule 1 of the Bill amend the EFIC Act to provide that where there is a reference in the Act to a loan or the lending of money by EFA, it is to be read to include the power to make equity investments.

The effect of these changes is to allow EFA to make equity investments under the EFIC Act.

Mr Dan Tehan, the Minister for Trade, Tourism and Investment, said in a media release:

This reform will align Australia with other countries, like the USA, China, Japan, Canada and South Korea, which are already making equity investments in our region to support their development and commercial objectives.

While used sparingly, this power will give EFA more flexibility to support important infrastructure investments in the Indo-Pacific or export-linked projects in Australia.[38]

According to DFAT and EFA, EFA’s new power to make equity investments will be constrained to ensure that ‘EFA is not crowding out private finance, but instead filling a gap in the market’.[39]

Specifically, these constraints are:

• equity investments will be limited to the National Interest Account (in other words, the Australian Government – not EFA – will make the final decision on equity investments)
• equity investments will be limited to a minority interest unless there is a compelling reason otherwise
• equity investments should be $20 million or higher unless there is a compelling reason otherwise
• EFA will only bring forward proposals where other financing options are unavailable or inadequate
• EFA will ensure equity investments have appropriate exit arrangements and target commercial rates of return
• EFA will encourage participation from the private sector and like-minded Governments and multilateral bodies.[40]

However not all the constraints are reflected in the provisions of the Bill. For example, the Bill does not require EFA to make equity investments over $20 million or limit its equity investments to a minority interest in businesses. DFAT and EFA have noted that certain constraints will be imposed ‘through a direction from the Minister for Trade, Tourism and Investment and an updated Statement of Expectations to EFA’.[41]

Items 10 and 12 of Schedule 1 of the Bill amend the EFIC Act to prescribe that EFA’s equity investments can only be made on its National Interest Account, and not on its Commercial Account.[45] This likely affects the types of projects EFA will finance.

EFA uses two accounts to provide finance to businesses. Under the Commercial Account the agency is able to provide finance to businesses without having to obtain permission from the Minister (currently the Minister for Trade, Tourism and Investment). Under the National Interest Account EFA may be directed by the Minister to providing finance to businesses if the Minister is satisfied that it is in Australia’s national interest.[46] Equity investment decisions under the National Interest Account will be subject to existing national interest criteria under Part 5 of the EFIC Act.

Decisions under the Commercial Account are the responsibility of the EFA Board. The agency acts as a for-profit organisation and bear all risks and losses on the Commercial Account.[47]

Decisions under the National Interest Account are the responsibility of the Australian Government and subject to ministerial oversight. The Commonwealth bears all risks and losses on the National Interest Account.[48]

Item 18 of Schedule 1 of the Bill prescribes that the EFA Board must ensure EFA’s capital and reserves are sufficient to meet potential losses in equity investment transactions. However, item 19 of the Bill amends paragraph 56(2)(b) to clarify that the EFA Board should not include equity investments made in the national interest (under Part 5 of the Act) as part of its consideration when determining whether EFA has adequate capital and reserves.

If the Bill is passed, it may potentially increase the exposure on EFA’s National Interest Account.[50]

Schedule 2—Guarantees for overseas infrastructure development

Item 1 of Schedule 2 of the Bill repeals and replaces section 18A of the EFIC Act to allow EFA to make standalone guarantees to lenders for the purpose of supporting overseas infrastructure development.[51] The new power will not apply to loans provided in the form of an equity investment.

Table 1 below indicates that financial guarantees are a key service EFA provides to exporting businesses.

Table 1: Export Finance Australia’s transaction by facility type, data as at 21 November 2018

Source: Australian National Audit Office ANAO, Effectiveness of the Export Finance and Insurance Corporation, Audit report, 44, 2018–19, ANAO, Canberra, 2019, p. 16.

Concluding comments

If passed, the Bill will give EFA new powers to make equity investments and provide standalone guarantees for overseas infrastructure transactions. The Government argues EFA’s new powers will support Australia’s Pacific Step-up.[52] Some commentators have suggested that EFA’s new powers will be used to counteract Chinese geopolitical influence in the Asia-Pacific region.[53] Critics of the Bill believe it should be amended to restrict EFA from making investments in fossil fuel projects at home and abroad.[54]