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senate vote 2021-10-18#3

Edited by mackay staff

on 2021-12-17 11:47:12


  • Bills — Export Finance and Insurance Corporation Amendment (Equity Investments and Other Measures) Bill 2021; in Committee
  • Export Finance and Insurance Corporation Amendment (Equity Investments and Other Measures) Bill 2021 - in Committee - Freedom of Information


  • <p class="speaker">Dorinda Cox</p>
  • <p>I move Australian Greens amendment No. 2 on sheet 1406:</p>
  • The majority voted against an [amendment]( introduced by WA Senator [Dorinda Cox](, which means it failed.
  • Senator Cox [explained that](, "*This amendment seeks to remove the EFA's partial FOI exemption.*"
  • ### Amendment text
  • > *(2) Page 7, at the end of the Bill (after proposed Schedule 3), add:*
  • >
  • >> *Schedule 4 — Freedom of Information Act 1982*
  • >>
  • >> *Freedom of Information Act 1982*
  • >>
  • >> *1 Division 1 of Part II of Schedule 2 (item dealing with Export Finance and Insurance Corporation)*
  • >>
  • >>> *Omit "4 or".*
  • >>
  • >> *2 Application of amendments*
  • >>
  • >>> *The amendment made this Schedule does not apply to documents brought into existence before the commencement of this item.*
  • ### What does this bill do?
  • According to the [bills digest](
  • > *The purpose of the [Export Finance and Insurance Corporation Amendment (Equity Investments and Other Measures) Bill 2021](;query=Id%3A%22legislation%2Fbillhome%2Fr6749%22) (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.*
  • <p class="italic">(2) Page 7, at the end of the Bill (after proposed Schedule 3), add:</p>
  • <p class="italic">Schedule 4 &#8212; Freedom of Information Act 1982</p>
  • <p class="italic"> <i>Freedom of Information Act 1982</i></p>
  • <p class="italic">1 Division 1 of Part II of Schedule 2 (item dealing with Export Finance and Insurance Corporation)</p>
  • <p class="italic">Omit "4 or".</p>
  • <p class="italic">2 Application of amendments</p>
  • <p class="italic">The amendment made this Schedule does not apply to documents brought into existence before the commencement of this item.</p>
  • <p>This amendment seeks to remove the EFA's partial FOI exemption. This will increase the transparency and accountability, ensuring that the public can understand what projects are being funded by EFA. Just as the government seeks to hide the investments of the Future Fund, which poured money into Adani and the Myanmar military, it wants to hide where our public money is being invested overseas. The government is also seeking to exempt all national cabinet discussions from FOI. This is yet another move designed to hide decision-making from the public. This is a government addicted to secrecy, and this has to stop.</p>
  • <p class="speaker">Louise Pratt</p>
  • <p>I want to put Labor's position in relation to this further amendment. We have been engaging with stakeholders in this area, particularly about increasing transparency, and we note that the FOI Act provides partial exemptions for Commonwealth agencies. The government has argued that the existing exemption is important, providing certainty to Export Finance Australia customers and financial institutions so that they're assured their sensitive financial information, even including the fact that they might be seeking finance, is confidential. We have the view that we need to look more closely at this area. We will continue to work with stakeholders regarding the impact of the current FOI laws and exemptions on Export Finance Australia's financing practices and we are open to developing genuine standalone policy in this regard.</p>
  • <p>However, we also note that Australian exporters are facing significant difficulties at the moment because of the inability of the Prime Minister, Mr Morrison, to manage the relationship of Australia with China. Therefore, we don't believe the Senate should be put in a position where we hastily tack on an amendment in this area that risks significant unintended consequences for this critical export agency and the businesses it works with. We therefore oppose the amendment.</p>
  • <p class="speaker">Larissa Waters</p>
  • <p>Far from it being hastily tacked on, this is an amendment that would make sure that the investment decisions that are made by Efic are not exempt from freedom of information. This is just classic form from the government that want to hide anything, mostly because they're up to their necks in it and it's dodgy stuff that they want to hide. But it's not just us who have recommended this. The Productivity Commission have previously recommended that the FOI exemptions for Efic be removed. They noted, rightly so, that the FOI Act already has protections for national security and commercially sensitive data. There's no good reason for this additional shroud of secrecy to be applied to Efic, and that's exactly what this well-considered and succinctly drafted amendment would achieve. We need more transparency about government spending of public money in this place, not less. It's shocking that the opposition is once again siding with the government to let the government give money to and take an equity stake in fossil fuel projects, and is happy to let that continue to be concealed from freedom of information. I'm incredulous, sometimes, at the lack of opposition from this opposition.</p>
  • <p>I want to point out that the submission from Jubilee Australia Research Centre, ACF and ActionAid&#8212;a joint submission&#8212;to the Senate inquiry into this bill also objected to the lack of transparency around the investment activities of EFIC and called for the removal of EFIC's exemption. They made the valid point that limiting access to this information undermines efforts to audit the effectiveness of the fund or the projects it funds, or to even assess the return on investment for public money. It's like putting this money into a black box, and then no-one can ask any questions about it. And this government now wants an even bigger blank cheque to say, 'We want to be able to take equity stakes now, but, no, you can't ask anything under freedom of information about whether it's good value for money or whether there was any environmental or social assessment undertaken in a decision to fund this project.' It is a complete black-box process. It's an absolute farce, and that is exactly why we are moving to say: do as the Productivity Commission recommended and remove this FOI exemption. This is public money being spent. It should be made public. It's not a difficult concept.</p>
  • <p>I object to the notion that this was hastily tacked on. This is a fundamental principle. The expenditure of public money should be made public, and the deliberations of an agency which has been given a massively expanded jurisdiction should be subject to scrutiny by the public, considering it's their money. With that, I commend the amendment.</p>
  • <p class="speaker">Amanda Stoker</p>
  • <p>In my contribution on this amendment, I think it's important that I put on the record the answer to this question, which really goes to the heart of why the Greens have put this forward: why does EFA need a freedom-of-information exemption? I think that if I can answer that, members of this chamber will feel comfortable to not support this amendment.</p>
  • <p>The exemption that exists for EFA from freedom-of-information laws provides certainty to EFA's customers and other financial institutions that the sensitive information they provide as part of those deals will remain confidential. The exemption is partial and only applies to transactions EFA is handling. It doesn't apply in a broader sense to, for instance, its accountability to government. Removing this targeted exemption in the way that is proposed by this amendment would have an impact on EFA's ability to safeguard the legitimate interests in the financial or business sense of its customers, which would, in turn, have a negative impact on those businesses' ability to work with EFA. It becomes a bit of a self-defeating proposition.</p>
  • <p>I should also put on the record that it's not correct to assert that EFA doesn't provide transparency on transactions. EFA is required to disclose its participation in all transactions, no matter what industry that transaction touches upon, within eight weeks of the finalisation of that transaction. Those details include: the name of the client; the sector in which they operate; the goods or services involved; the overseas infrastructure involved; the country; the type of facility; and the value of the facility of the export or overseas infrastructure support.</p>
  • <p>EFA discloses its proposed involvement in transactions with the potential for significant environmental and/or social impacts, in addition to all the things I've set out, on its website prior to making a decision on the provision of finance, giving that extra layer of transparency should it be anything that might be a matter of a sensitive nature. I'd suggest that senators can feel assured that the exemption is limited only to what is necessary to give commercial efficacy to the transactions involved, and otherwise provides that there needs to be disclosure within eight weeks of finalisation of key information here in Australia.</p>
  • <p class="speaker">Rex Patrick</p>
  • <p>I rise to contribute to the discussion on the amendment. I will point out that I do a lot of FOIs, so I understand this space quite well. Everyone must understand that FOI has the unique characteristic of being the only tool that citizens have to directly engage in oversight and access information to be able to participate in debate. We in this chamber can ask questions on notice, seek orders for the production of documents and do Senate inquiries. We also have other institutions that conduct oversight, like the Auditor-General, who does a fantastic job. But the only method for citizens to be able to engage is through the use of FOI. They directly control that.</p>
  • <p>The FOI Act has a number of exemptions already in place. Section 45 is one of the business ones. There is also section 47, relating to commercial activities and so forth. There's a certain reality about FOI. If I were to make an FOI request of EFA right now, in the middle of a transaction, I can assure you I'd get a redacted return. I would probably go to the Information Commissioner, and it would be likely to take two years to come out the other side of that and then perhaps get to appeal to the AAT&#8212;a very lengthy process. So it's not as if FOI requests would generally seek to interfere with commercially sensitive transactions that are on foot, because of the way in which our system is quite broken.</p>
  • <p>Another point to make, just so senators understand this, is that you can make an FOI request and have it knocked back because of some sensitivity. Five years later, you can make the same FOI request and you might find that it doesn't get knocked back, because of the time that has passed since the original application was made. There's a requirement in law that FOI decisions be made on the basis of the circumstances at the time the decision is made, and often you will see, in FOI decisions that are published by the Information Commissioner or the AAT, that they've given consideration to the time that has elapsed since the information was first brought into existence, and often that gives rise to access to the documents.</p>
  • <p>So I just say that it's very difficult under the current regime to get access to information that is truly sensitive from a business perspective, but, even in circumstances where you might normally seek access to it, because of the time it takes to get through the FOI challenge, it's unlikely to be sensitive by the time you get to the point of getting it. At that point, you are dealing with a very experienced Information Commissioner or with the AAT, whose examination of any claims of commercial sensitivity is very deep and precise. For that reason, I don't think there is a requirement for additional exemptions or class exemptions to be put in place, and that's the basis upon which I will be supporting this amendment.</p>
  • <p class="speaker">Deborah O&#39;Neill</p>
  • <p>The question is that Greens amendment (2) on sheet 1406, moved by Senator Cox, be agreed to.</p>
  • <p></p>