Ruling confirms access to coal mine rehabilitation bank guarantees is in the public interest

Queensland’s Office of Information Commissioner makes a welcome judgement.

Queensland’s Office of Information Commissioner (OIC) has determined that the public has a legitimate interest in obtaining mining company bank guarantees provided to the State to meet rehabilitation expenses for Peabody’s Burton coal mine.

We applied to obtain these bank guarantees under Queensland’s Right To Information legislation. In 2016 companies operating coal mines are facing bankruptcy, analysts believe seaborne thermal coal is in structural decline and Queensland coal mines have been sold for as little as $1. In seeking the bank guarantees we asserted that knowing how much money is held for clean-up costs was a matter of public interest.

The OIC agreed.

In its decision on accessing bank guarantees for Peabody’s Burton mine the Commission stated:

The bank guarantee reflects the quantum of monies held by the State as security for performance of rehabilitation obligations, which may otherwise need to be met by the public. The information contained in the guarantee is, in my view, therefore information concerning the ‘affairs of government’, to which that public has a legitimate interest in obtaining access…

The OIC acknowledged that if bank guarantees were insufficient, the public would meet the shortfall in money required to clean up mines.

Disclosure of the guarantee will allow the public to apprise itself of this amount, and assess the adequacy of same – an important public interest, given that any shortfall would, as noted, ultimately be met by that public.

Further, the OIC acknowledged the release of the guarantees will hold government agencies accountable for their determinations about how much financial assurance to request.

Release of the bank guarantee will also serve to ensure the accountability of relevant agencies for their financial assurance determinations and decisions, to enhance the transparency of agency operations in this regard, and to contribute to informed community debate on the sufficiency of financial assurance. These are compelling public interest considerations, sufficient to tip the balance of the public interest in favour of disclosure in this case.

In deciding to provide access to guarantees for Burton, the OIC consulted two financial institutions. BNP Paribas provided a $28 million guarantee and did not object to its disclosure. A second institution, as yet unknown, objected on the basis that releasing the document may be a breach of confidentiality. The OIC decided that there was no breach of confidence, and in any event, there were overriding public interest considerations.

The OIC’s decision should help the public obtain bank guarantees in Queensland. Banks are on notice that their potential liabilities for particular mines can be made public and are urged to fully disclose their liabilities to shareholders.

We understand the Queensland government is undertaking a review of its financial assurance regime. Following this decision which disclosed banks’ identities and the amount of financial assurance for each mine, we encourage the government to maintain a public register website containing this information. Doing so will contribute to informed community debate in the public interest.

Read the OIC’s decision (PDF, 488KB)

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