Export Finance and Insurance Corporation Act 1991 – Declaration of Approved Causes of Loss 2022

The instrument introduces and rests on a small set of core concepts that are defined or used directly in the text. Two explicit definitions appear in s 5. "Act" is defined as the Export Finance and Insurance Corporation Act 1991, the enabling statute. "EFIC" is defined as the Export Finance and Insurance Corporation, the agency making the declaration. A third definitional entry in s 5 defines "war-like operation" and supplies an inclusive list of conduct and events that the instrument treats as war-like for present purposes: operations in the course of war including civil war, terrorism, riot, civil commotion, revolution, insurrection, rebellion or any similar uprising.

The central substantive concept is "approved causes of loss", which the instrument declares in s 6 for the purposes of Part 4 of the Act. The instrument does not attempt an exhaustive definition of that phrase; instead, it produces an enumerated list of types of events and government or judicial actions labelled (a) through (k). Those eleven items are the operative content of what EFIC regards as approved causes of loss for Part 4. They are:

• (a) expropriation, nationalisation or confiscation of property or any other right or benefit;
• (b) prevention or restriction of, or imposing requirements on, constructing, operating or dealing with property;
• (c) damage to, or loss of effective control over, property caused by a war-like operation;
• (d) inability to transfer money to another country or convert money to another currency and currency depreciation;
• (e) breach of contractual obligations;
• (f) inability to perform a contract due to external causes;
• (g) selective discrimination;
• (h) amending or removing (without replacement) or failing to issue any licence, permission, approval, right or benefit;
• (i) imposing requirements or impediments in relation to the acquisition or supply of goods and services (including tender processes), access to public resources or other business operations;
• (j) preventing or hindering the ability to benefit from the decisions of any court, tribunal, government or regulatory bodies or other authorities; and
• (k) a judicial or parliamentary act of taxation.

These items mix classic political-risk categories (expropriation, nationalisation, currency transfer or convertibility restrictions, war-like damage) with governance and administrative acts (licencing, tender impediments, selective discrimination, judicial or parliamentary taxation) and contractual risk (breach of contract, inability to perform due to external causes). The instrument does not supply sub-definitions for terms used within the list, such as "property", "selective discrimination", "external causes", "preventing or hindering", or "ability to benefit", so the list is the sole textual source for what is declared to be an approved cause.

Another structural concept is the instrument’s relationship to prior instruments: Schedule 1 contains an express repeal of the 2021 declaration (Schedule 1, item 1). The instrument therefore functions as the current declaration replacing the earlier instrument; the text repeats the core provisions multiple times in the file, but the operative provisions to note are the definitions (s 5), the approved causes (s 6) and the repeal of the 2021 declaration (Schedule 1).

Finally, the instrument’s legal basis is significant: it is made under subsection 21(1) of the Act (s 3). That identifies the statutory delegated power used to make the declaration, and it anchors the instrument’s authority to the Act. The instrument does not itself recite the contents of subsection 21(1) or Part 4 of the Act; it relies on those parts of the primary statute for the legal consequences of having "approved causes of loss" under Part 4.

The instrument is framed as a declaration made by EFIC that defines approved causes of loss for the purposes of Part 4 of the Act (s 6). The text does not itself enumerate the classes of third parties who will rely on or be affected by the declaration. Because the declaration is expressly made "for the purposes of Part 4 of the Act" (s 6), the set of persons or entities materially affected will be those who fall within the reach of Part 4 of the Act in practice. The instrument does not reproduce Part 4 or describe its scope, so it does not in itself identify particular beneficiaries, claimants, insureds, or counterparties.

The text does, however, supply the identity of the declarant: EFIC (s 5). EFIC is therefore the decision-maker that has recorded the list of approved causes. Entities that deal with EFIC under the Act , whether they are applicants for finance, insured exporters, or other counterparties referenced in the Act , will need to consider whether a loss event falls within one of the declared categories when Part 4 is engaged. The instrument does not modify private contract law directly; it simply records which causes EFIC treats as approved for the statutory instrumentality of Part 4.

Two practical inferences follow directly from the instrument’s wording and structure, strictly on the basis of the text. First, the revival of a declaration for 2022 and the express repeal of the 2021 declaration (Schedule 1, item 1) indicates that the set of approved causes is intended to be kept current by instruments of this type. Second, where a person or entity seeks to establish entitlement or to make a claim under Part 4, the list in s 6 will be the textual yardstick used by EFIC to identify whether the cause of loss relied upon is an "approved cause". The instrument does not state how EFIC will determine whether a particular factual matrix falls within a numbered item; that determination is not provided in the instrument.

The instrument contains a definition of "war-like operation" in s 5, which broadens the meaning of that phrase beyond a narrow military conflict to include terrorism, riot, civil commotion, revolution, insurrection, rebellion, or any similar uprising. Parties whose losses arise from such events will find the event category explicitly captured by (c) where the loss is "damage to, or loss of effective control over, property" caused by a war-like operation. Conversely, other clauses in s 6 (for example (d) on currency transfer and depreciation or (k) on judicial or parliamentary acts of taxation) do not define their terms further, leaving parties to treat the text as the primary source for whether a loss falls within those categories.

Because the instrument does not create or vary obligations under other statutes, and because it does not itself create administrative procedures or eligibility rules, the set of persons who are legally obliged to act or who obtain new rights under this instrument is not stated. The practical effect on different classes of private parties therefore depends on how Part 4 of the Act and EFIC’s operational procedures apply the declared causes to applications, insurance policies, or financing arrangements governed by the Act.

The instrument is declaratory in character and does not itself create explicit duties, obligations, procedural rights, or monetary entitlements in its text. It identifies "approved causes of loss" for the purposes of Part 4 of the Act (s 6), but it does not set out what EFIC or any other body must do when a cause applies, nor does it prescribe claimant rights, compensation formulas, limitation periods, evidentiary standards, documentation requirements, premium adjustments, or exclusions. The instrument relies on the Act and on Part 4 as the legal framework within which rights and duties will arise; the instrument’s function is to supply the list of causes EFIC recognises under that statutory framework.

Operationally, the instrument tells us who has the declaratory power and when it takes effect. EFIC is the declarant (s 3; s 5). The instrument commences "on the day after registration" (s 2). Those two statements are the principal procedural obligations embedded in the instrument itself: EFIC must, consistent with the Act, make the declaration; and once registered, the instrument takes effect the day after registration.

The instrument creates a textual basis for claimants and EFIC to refer to a fixed list of causes when Part 4 is invoked. That list is a necessary input to any statutory decision-making under Part 4, though the instrument does not spell out the decision-making process or standards. The absence of procedural detail means that the duties and rights that will actually affect third parties are created by reference to the Act and Part 4 rather than by this instrument itself.

A number of terms in s 6 are phrased so as to import variable factual inquiry. For example, (b) covers "prevention or restriction of, or imposing requirements on, constructing, operating or dealing with property". That wording suggests that duties or rights under Part 4 could be engaged by a governmental or other act that restricts, prevents, or conditions an activity in relation to property. The instrument does not elaborate on what level of prevention, restriction or requirement triggers entitlement under Part 4. Similarly, (f) on "inability to perform a contract due to external causes" is phrased in terms that will require a factual determination of causation and of what counts as "external causes".

Because the instrument is silent on procedural or remedial detail, entities seeking to understand rights and duties must consult the Act and Part 4 for how EFIC will exercise its functions, determine eligibility, quantify loss, and make payments or provide finance. The instrument’s immediate legal duty is minimal: once registered, the instrument exists as the operative declaration that EFIC and Part 4 will refer to. Any actual duties to pay or administrative obligations rest with the primary statute and EFIC’s exercising of its statutory powers, which are outside the text of this instrument.

The instrument contains no penal provisions, offences, administrative fines, or enforcement mechanisms. It does not establish investigatory powers, sanctioning regimes, or penalties for breaches. The text is confined to a declaratory function: to declare approved causes of loss for the purposes of Part 4 of the Act (s 6) and to repeal the prior declaration (Schedule 1, item 1). There is no express enforcement clause in the instrument, and no mention of inspection, audit, or sanction powers.

Because the instrument operates by reference to Part 4 of the Export Finance and Insurance Corporation Act 1991, any remedies, enforcement tools, or penalties that might be relevant to claims, compensation, dispute resolution, or recovery will derive from the Act itself or from other statutes or contractual arrangements, not from this instrument. The instrument does not identify procedures for contesting EFIC decisions, for lodging claims, or for appealing determinations, nor does it provide statutory timelines or standards of proof. All such procedural and enforcement matters must therefore be sought in Part 4 and the Act.

The instrument also contains no immigration, customs, criminal, tax enforcement, or administrative review provisions. Although item (k) in s 6 explicitly names "a judicial or parliamentary act of taxation" as an approved cause of loss, the instrument does not create tax liability or provide tax enforcement powers; it is simply declaring that such acts are among the causes EFIC treats as approved for Part 4 purposes.

Practically, the lack of enforcement or penalty language means that the instrument functions as a background definitional text rather than as a means of coercive implementation. Any enforcement or penalty consequences for regulated parties will be the result of EFIC’s decisions under the Act and the procedures set out in the primary statute or in any policies or contractual terms that EFIC may adopt consistent with the Act. Those materials are not reproduced in this instrument.

The instrument explicitly positions itself within the statutory architecture of the Export Finance and Insurance Corporation Act 1991. It is made under subsection 21(1) of that Act (s 3) and declares items to be "approved causes of loss for the purposes of Part 4 of the Act" (s 6). It therefore operates as a subordinate instrument that provides the content of "approved causes of loss" specifically for Part 4. The instrument does not reproduce any other provisions of the Act, nor does it amend the Act itself; its interaction with the Act is that of a delegated instrument filling in an element required or permitted by the primary statute.

Outside the Act, the instrument does not reference, amend or otherwise engage other Commonwealth, state or territory legislation. It does not purport to displace or vary tax law, property law, contract law, insolvency law, foreign exchange controls, or administrative law procedures. However, several of the declared causes of loss in s 6 are categories of events that intersect with those bodies of law in practice. For example:

• Item (a) refers to expropriation, nationalisation or confiscation of property or any other right or benefit, which conceptually intersects with property law, sovereign acts and compensation regimes in domestic or international law. The instrument does not define "property" or specify valuation or compensation rules.

• Item (d) addresses the inability to transfer money to another country or convert money to another currency and currency depreciation, which interacts in practice with foreign exchange controls, central bank measures, and commercial contract terms. The instrument provides no procedural mechanism for determining when currency blockage or depreciation qualifies as an approved cause for purposes of Part 4.

• Item (k) expressly names a "judicial or parliamentary act of taxation" as an approved cause. That creates a textual overlap between the declared categories and taxation acts. The instrument does not attempt to alter taxation law or dispute tax assessments, but it does treat taxation acts as a cause of loss that can be invoked under Part 4.

• Items (b), (h) and (i) involve regulatory and administrative acts , prevention or restriction on property use, amending or removing or failing to issue licences, and imposing requirements in tender processes or access to public resources. Those items engage administrative law and public procurement law in practice; again, the declaration does not alter those regimes but identifies such acts as causes of loss that EFIC may treat as "approved" in the Part 4 context.

The only expressly stated interaction with another instrument is the repeal of the Export Finance and Insurance Corporation Act 1991 - Declaration of Approved Causes of Loss 2021, dated 13 October 2021 (Schedule 1, item 1). The repeal replaces the earlier instrument with the 2022 declaration; the instrument does not otherwise amend any other subordinate instruments or primary statutes.

Readers should therefore treat this instrument as a definitional substitute within the Act’s delegated-instrument framework. Its substantive interplay with other laws will arise only when EFIC applies the declared causes in making decisions, assessing claims, or providing cover under Part 4. The instrument itself neither changes other laws nor prescribes how conflicts among legal regimes are to be resolved.

The instrument contains one express amendment-related action: the repeal of the earlier declaration made in 2021. Schedule 1, item 1 repeals the Export Finance and Insurance Corporation Act 1991 - Declaration of Approved Causes of Loss 2021, dated 13 October 2021. No other amendments to other instruments or to the Act are made by this instrument. The repetition in the circulated text indicates that the 2022 instrument replaces the 2021 instrument as the operative declaration of approved causes of loss for purposes of Part 4 of the Act.

The instrument itself is made under subsection 21(1) of the Act (s 3). The text does not provide a history of earlier declarations beyond the immediate 2021 instrument it repeals, and it does not provide any transitional provisions or savings clauses preserving rights or pending claims that arose under the 2021 declaration. The absence of transitional language means that, once the 2021 declaration is repealed by Schedule 1, the 2022 declaration is the active instrument from the point the 2022 instrument commences (s 2). The 2022 instrument’s commencement is "on the day after registration" (s 2); the instrument therefore takes effect without a complex staged timetable.

No amendment-by-reference is made to the Act itself. The instrument does not purport to amend or vary Part 4 or any other provision of the Act; it performs the specified delegable function of naming approved causes of loss pursuant to subsection 21(1).

Because the instrument replaces a prior declaration, practitioners should note that any reliance on the 2021 list should be re-examined in light of the 2022 text. The instrument contains no saving provision for acts, decisions, insurance claims, or applications made while the 2021 declaration was in force. Any such matters will require attention to whether Part 4 or EFIC policy provides alternative transitional arrangements; such materials, however, are not present in the instrument itself.

The instrument’s text records no litigation history and does not mention any court or tribunal decisions. It is a statutory declaration rather than an adjudicative or contested legal instrument. The document does not purport to resolve disputes or to summarise case law. As a piece of subordinate legislation, its content may be subject to judicial review, statutory appeal or other legal challenge in future if, for example, EFIC applies the declared causes to deny or accept claims under Part 4 and an affected party challenges that application. The instrument itself contains no record of past or pending litigation, and it does not create any adjudicative findings that could be directly appealed.

Because the instrument is purely textual and declaratory, any litigation history relevant to the meaning or application of these causes of loss will arise from subsequent disputes where courts or tribunals are asked to interpret whether particular events fall within the declared categories, or whether EFIC applied the declaration lawfully under the Act. The instrument does not provide guidance on appeals procedures, nor does it refer to dispute resolution mechanisms; those matters will be governed by the Act, EFIC policies, contractual terms, and administrative law principles, none of which are reproduced in this instrument.

Practitioners seeking to anticipate litigation points should therefore focus on how the terms used in the declaration, such as "selective discrimination", "external causes", "inability to transfer money", "damage to, or loss of effective control over, property caused by a war-like operation", and "a judicial or parliamentary act of taxation", are likely to be construed in the context of Part 4 determinations by EFIC and in subsequent judicial review or merits review proceedings. The instrument itself provides no precedent or case law; any litigation history will develop only after EFIC applies the declaration to concrete claims or decisions.

The instrument’s brevity and the broad language of several items create potential practical pitfalls that users should be aware of. These are textual points grounded directly in the instrument.

1. Broad and undefined terminology. Many key words are not defined in the instrument. The text does not define "property", "right or benefit", "selective discrimination", "external causes", "preventing or hindering", "ability to benefit", or what precisely constitutes "requirements or impediments" in relation to tender processes or access to public resources. The lack of definition means that factual claims will hinge on how EFIC and, if necessary, courts interpret those terms in relation to Part 4. The instrument supplies only one defined term beyond the Act and EFIC, namely "war-like operation" (s 5).

2. Scope of "war-like operation". The instrument expressly includes terrorism, riot, civil commotion, revolution, insurrection, rebellion or any similar uprising within the meaning of "war-like operation" (s 5). That inclusion is textually explicit, but the instrument does not state how to determine whether a particular event has the required character, nor does it say whether purely localised civil disturbances, criminal acts, or acts by private actors fall within the definition absent statutory or factual thresholds.

3. Currency and transfer clause conflation. Item (d) collapses two distinct phenomena into one bullet point , the inability to transfer money or convert currency, and currency depreciation. These are related but distinct commercial events. The instrument does not say whether simple exchange-rate volatility that reduces the value of receivables is equivalent to an inability to transfer or convert funds. Users will need to consult Part 4 and EFIC practice to see how those distinctions are handled.

4. Contractual breach and "external causes". Item (e) covers "breach of contractual obligations" and item (f) covers "inability to perform a contract due to external causes". The text does not clarify the boundary between a breach that arises from a private counterparty’s default and an inability to perform caused by an externality such as governmental action, force majeure events or currency controls. That boundary will matter for causation and for allocation of loss.

5. Interaction with tax acts. Item (k) includes "a judicial or parliamentary act of taxation". The instrument does not define the contours of that phrase. It does not say whether ordinary, non-discriminatory tax measures are coverable, or whether taxation acts must be arbitrary or confiscatory to qualify. The inclusion of judicial acts of taxation raises questions about whether court-ordered tax outcomes are intended to be treated as an approved cause.

6. Repeal without transitional provisions. Schedule 1 repeals the 2021 declaration (Schedule 1, item 1). The instrument does not provide transitional language preserving prior decisions or pending claims under the old instrument. Users with claims that arose under the 2021 text should not assume automatic continuity given the absence of a saving clause in this instrument.

7. Declaratory instrument only. The instrument does not provide procedural guidance, evidentiary standards, quantification rules, or any remedy mechanics. Parties should not assume that the listing alone guarantees payment or financing under the Act; rather, the list is an input to the statutory scheme in Part 4.

8. Multiple textual repetitions. The circulated source includes repeated blocks of the same text. Practitioners should ensure they refer to the registered instrument as published in the Federal Register of Legislation or EFIC’s official channels to avoid confusion from duplicative text versions.

9. No express application criteria. The instrument does not indicate thresholds, materiality tests, limitation periods, or any nexus tests linking a declared cause with a compensable loss under Part 4. Determination of such criteria will be left to EFIC’s exercise of functions under the Act.

10. Discretionary application left to EFIC and Part 4. The instrument furnishes categories but not the standards for application. The precise effect on an individual claim depends on how EFIC applies the categories in practice and how Part 4 allocates entitlements. Those procedural and substantive standards are not in the instrument.

These are not normative conclusions; they are textually grounded observations about where the instrument leaves questions open and where further inquiry is required in the Act, in EFIC guidance, or in any consequential administrative materials.

The instrument itself does not establish procedural duties or compliance regimes, but it identifies the specific causes of loss that EFIC declares to be approved for Part 4 (s 6). Compliance, in practical terms, means aligning any application, claim, or supporting documentation submitted under Part 4 with the categories set out in this declaration and with the Act’s procedures. Given the instrument’s limited scope, the following practical actions are drawn strictly from the instrument’s text and its immediate legal implications.

1. Map loss events to the declared categories. When preparing an application to EFIC or making a claim under the Act’s Part 4 processes, identify which of the s 6 categories the factual loss most closely fits. Use the exact language of the relevant paragraph(s) , for example, (a) expropriation, nationalisation or confiscation; (d) inability to transfer money or convert currency and currency depreciation; (j) preventing or hindering the ability to benefit from decisions of courts or regulatory bodies. Do not assume broader coverage beyond these categories because the instrument’s text is the definitive list for Part 4 purposes.

2. Gather focused evidence linked to the declared cause. Because the instrument supplies no procedural rules, claims should be supported by concrete factual evidence showing how the event meets the wording of the relevant item. For example, where (c) , damage to or loss of effective control over property caused by a war-like operation , is relied on, assemble contemporaneous incident reports, governmental proclamations, security incident logs, media reports and any official declarations indicating the war-like character of the event as defined in s 5.

3. Address causation precisely. Items such as (e) and (f) distinguish between breach of contract and inability to perform due to external causes. For each claim, draft a causation narrative that ties the loss directly to the declared cause rather than to secondary factors. Where external causes are asserted, identify the external event, its timing, and how it materially prevented performance.

4. Treat currency events carefully. Item (d) covers both transferability/convertibility and currency depreciation. If losses arise from exchange-rate movements, document the market conditions, central bank or regulatory measures restricting transfers, and any contractual terms that relate to currency convertibility. Distinguish between a legal prohibition on transfer and ordinary market-driven depreciation.

5. Keep administrative and licensing records. Because items (h) and (i) refer to amendments, removals or failures to issue licences and to impositions in tender processes and access to public resources, preserve communications with issuing bodies, procurement notices, tender documentation, and any evidence of discriminatory or obstructive administrative action.

6. Consider taxation events. If a judicial or parliamentary act of taxation is relied on under (k), preserve legislative instruments, statutory instruments, tax assessments, court judgments, and related correspondence that demonstrate how the act of taxation created a loss in the relevant circumstances.

7. Time your submissions to instrument commencement. The instrument commences on the day after registration (s 2). Ensure that applications or claims squarely reference the operative declaration in force at the time the loss is asserted. Where a loss straddles the repeal date for the 2021 declaration and commencement of the 2022 declaration, note that this instrument contains no transitional saving; parties should therefore check EFIC policy or Part 4 for guidance on treatment of such cases.

8. Obtain EFIC policy or procedural documents. This instrument provides the declaratory list only. For practical processing steps, forms, evidentiary requirements, timelines, and any premium or co-payment arrangements, apply to EFIC’s operational guidance or to the text of the Act. The instrument does not supply those details.

9. Seek precise legal advice where ambiguity exists. Several phrases in the instrument are open-ended (for example, "selective discrimination", "external causes", "ability to benefit"). Before lodging a claim, obtain advice tailored to the particular facts, to ensure the evidence is framed in terms that align with EFIC’s declared categories.

10. Monitor EFIC announcements and the Federal Register. The instrument repeals the 2021 declaration (Schedule 1, item 1). Entities that previously relied on the 2021 instrument should ensure their claims or ongoing matters are updated to reflect the 2022 text. Confirm the registered instrument text and any EFIC commentary or policy guidance supplementing it.

These actions are pragmatic steps grounded in the instrument’s content. They do not create new statutory rights or duties beyond what the Act and Part 4 provide. For procedural certainty and quantification of entitlements, parties must consult the Act itself and EFIC’s implementing policies or decisions, which will determine how the declared causes operate in practice.