Australia: Should we be talking about money? Balancing the need for financial secrecy in resource plays and the desire for government transparency


  • Government lawyers and advisers and all stakeholders in the Queensland resources sector.


  • The changes proposed in the Mineral and Energy Resources (Financial Provisioning) Bill 2018 will change more than just the financial assurance scheme in Queensland.


  • Consider the confidentiality protections you have in place for sensitive information and be aware of the benefits of risks associated with FOI/RTI regimes.

By the end of this calendar year, we can expect to see members of the Queensland Parliament debating the introduction of the Mineral and Energy Resources (Financial Provisioning) Bill 2018 (Qld) (FA Bill). While it is widely known that the FA Bill aims to overhaul the financial assurance (FA) and progressive rehabilitation regime in Queensland, the Bill also seeks to amend the Right to Information Act 2009 (Qld) (RTI Act) to prevent the disclosure of documents provided under this proposed FA scheme.

Exemptions from FOI provisions are not unusual, and appear in the Freedom of Information Act 1992 (Cth) (FOI Act), the RTI Act and like legislation throughout Australia.

The proposed FA scheme

In an attempt to improve the management of future financial risks to the State where a proponent fails to comply with their environmental management and rehabilitation obligations, the State introduced the FA Bill earlier this year.

We provided an overview of the previous FA Bill when it was introduced in 2017. In summary, the FA Bill seeks to implement a financial provisioning scheme (Scheme) that provides the Queensland Government with access to a pooled fund (Fund) to assist in rehabilitating mines that are not in compliance with rehabilitation obligations. Contributions by proponents to this Fund will be informed by the risk category allocated to the relevant project.

The FA Bill proposes that a scheme manager be appointed, with that manager empowered to determine the risk category for each project, and thus the contribution to the Fund. Relevant here, submissions from proponents to the scheme manager may require the disclosure of financial and business information.

To allay concerns that these sensitive documents will become publicly available, the FA Bill includes a proposed amendment to the RTI Act to provide certain exemptions and exclusions in relation to documents disclosed pursuant to the FA Bill.

Amendments to the Qld RTI Act

While there are only a few amendments proposed to the RTI Act, it does limit the operation of the RTI Act in respect of the proposed Scheme quite significantly.

The FA Bill proposes to insert two mechanisms which would effectively prevent access being given to certain documents relating to the FA scheme, by legislating that:

  • documents created, or received, by the scheme manager under Part 3 of the FA Bill are exempt;1 and
  • the scheme manager appointed to manage the Scheme under the proposed FA Bill is not an entity to which the RTI Act applies.2

While an exemption in the nature of that summarised above in relation to documents will not always result in access to information being denied – a Minister or agency can choose to give access notwithstanding that information is 'exempt' – the proposed exclusion of the scheme manager would effectively mean that the public (including competitors and environmental activists), and indeed other government agencies, would not have a right of access to any information in the scheme manager's (or other Queensland Government Department's) possession or control.

The proposed amendments to the RTI Act had been drafted into the FA Bill to respond to concerns of industry stakeholders about the potential for sensitive financial and business information being available for disclosure, in circumstances where that information might not ordinarily be publicly available.

Is there cause for concern?

During the FA Bill's consultation period, very few of the submissions addressed the associated amendments proposed to the RTI Act, with most submissions focussing on the proposed amendments to the FA regime.

Of those submissions received, some stakeholders support the amendments as they seek to address the confidentiality concerns the industry has expressed. It was also suggested by government participants that the requirement (elseshere in the FA Bill) for the scheme manager to publish an annual report that includes information on actuarial investigations of the scheme, and its overall effectiveness, provides sufficient information for the public at large.

Conversely, other stakeholders:

  • highlight the importance of public scrutiny of risk assessments and financial assurance, for transparency and government accountability;
  • consider that information held by the government is a public resource and that the amendments are inconsistent with the intentions of the RTI Act; and
  • consider the proposed amendments to be too broad and will capture more information than is required to adequately protect sensistive financial and business information (i.e. will prevent the disclosure of FA amounts contributed to the Fund).

Notably, some submissions express the view that the RTI Act provides sufficient mechanisms to prevent the disclosure of confidential information and, therefore, the blanket exclusion proposed by the FA Bill is unnecessary. The RTI Act already contains both exemptions and exclusions whereby certain documents, entities, and information are either exempt from disclosure (unless the exemption is overruled by the agency), or wholly excluded from the operation of the RTI Act and therefore cannot be disclosed in response to a RTI request. Most of the exemptions and exclusions under the RTI Act, as it currently stands, are aimed at protecting the privacy of documents for which disclosure would not be in the public's interest – for example, documents relating to state or national security or information that would breach confidentiality (or legal professional privilege) if disclosed.

Although not addressed in any of the submissions, concerns over exclusions from the provisions of the RTI Act should not ignore other means by which access to information can be achieved. For example, persons aggrieved by administrative decisions – including decisions of the scheme manager – would be entitled to seek access to documents by way of discovery in judicial review proceedings under the various judicial and administrative review regimes in Australia. Admittedly, this does not provide the low cost access to information afforded by freedom of information regimes.

Consistency between the Commonwealth, States and Territories

No other government in Australia provides an express and blanket prohibition on the disclosure of information obtained by the relevant government agency in the assessment of the financial commitment required to rehabilitate the mine site. This is not to say that any information provided in respect of determining a proponent's financial and rehabilitation obligation is publicly accessible. Rather, some but not necessarily all such information would likely be captured by other general exemptions.

For example:

  • in the Northern Territory, under the Information Act 2002, sensitive information is exempt, however where legislation imposes levies on a proponent's FA amount3 , the total amount held by the the Territory is published for the public to access;
  • in Tasmania, under the Right to Information Act 2009, information obtained in confidence and information relating to business affairs of a third party (including information potentially provided for the purposes of assessing security deposits for mining activities)4 is exempt; and
  • in South Australia, under the Freedom of Information Act 1991, documents consisting of sensitive business information (e.g. trade secret) or that is otherwise of commercial value is exempt, subject to conditions.

Similar general exemptions operate in the other States in Australia, including Queensland and New South Wales. Accordingly, many consider that Queensland is taking extra precautions that are unnecessary, and may not be aligned with the purposes of the freedom of information regime both within Queensland, in the other States and Territories and in the Commonwealth.

While both government and stakeholders within and outside industry expressed a range of views in relation to the proposed exemption in the Qld RTI Act, it cannot be assumed that proponents will universally press for exemptions to public scrutiny. Indeed, in the context of controversy over the Northern Territory government's allocation and use of funds received by way of its legacy mine levy last year, the NT Minerals Council publicly stated its preference for information to be publicly available.5

Compliance with policy objectives

The freedom of information regimes around Australia are designed to promote transparency and government accountability by providing the public with a means to access information held by the government. Although the regimes differ from jurisdiction to jurisdiction, it is a universal tenet of the regime that it should be providing the public with better access to information held by government agencies, and this in turn will promote better decision-making by government agencies and engender greater public confidence in government institutions.

The proposed amendments to Qld's RTI Act, though subject specific, arguably run contrary to the prevailing trends. There are currently on foot proposed amendments to the FOI Act to improve access and transparency. The Freedom of Information Legislation Amendment (Improving Access and Transparency) Bill 2018 (Cth) has been introduced and is aimed at:

  • implementing measures to make the government more transparent and accountable;
  • assisting the public, and the media, to access information under the law;
  • addressing delays, lengthy review processes, and large legal expenses incurred in opposing the release of information.

These objectives are to be achieved through various amendments to processes that have been identified as delaying and obstructing the process for obtaining a response to an FOI request, or a review of an FOI decision. Changes include, for example:

  • a provision allowing FOI review applicants to elect for their review to bypass the Information Commissionerand proceed straight to the Administrative Appeals Tribunal if there has been a delay in the decision making process;
  • preventing agencies from making submissions to FOI decision reviews that have not been advanced by the agency, such that switching exemptions (effectively, remaking a decision) part way through a review will no longer occur.

While not specifically relevant to the type of information to which the amendments to the Qld RTI Act relate, it is indicative of a definitive policy objective whereby access to information should not be restricted unless it is not within public interest for that information to be disclosed.

Since the FA Bill was introduced in February, the Queensland Government has been seeking to pass the Bill before the end of this calendar year. Although the second reading of the FA Bill has been frequently delayed, we expect to see the Bill considered before the end of the year. It remains to be seen whether there will be any significant objections to the proposed amendments to the RTI Act and, if there is, how Parliament will seek to balance the needs of the public against the commercial needs of proponents under the proposed Scheme.


1Amendment to Schedule 1 of the RTI Act.

2 Amendment to Schedule 2 of the RTI Act.

3 Mining Management Act (NT)

4Mineral Resources Development Act 1995 (Tas)

5 S Everingham, 'Concerns taxes collected by NT Government to clean up ex-mines not used for intended purpose', ABC News, (accessed 10 October 2018)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions