CPB Contractors Pty Ltd & Ors v Cole & Anor [2026] QCATA 40

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: CPB Contractors Pty Ltd & Ors v Cole & Anor [2026] QCATA 40 PARTIES: CPB CONTRACTORS PTY LTD (first applicant) BAM INTERNATIONAL AUSTRALIA PTY LTD (second applicant) GHELLA PTY LTD (third applicant) UGL ENGINEERING PTY LTD (fourth applicant) CPB BAM GHELLA UGL – UNINCORPORATED JOINT VENTURE (fifth applicant) v KATE COLE OAM (first respondent) DEPARTMENT OF STATE DEVELOPMENT, INFRASTRUCTURE AND PLANNING (OFFICE OF INDUSTRIAL RELATIONS) (second respondent) APPLICATION NO/S: APL382-24 MATTER TYPE: Appeals DELIVERED ON: 17 April 2026 HEARING DATE: 8 September 2025 HEARD AT: Brisbane DECISION OF: Judicial Member Rinaudo AM Member Berry ORDERS: IT IS THE DECISION OF THE APPEAL TRIBUNAL THAT: The appeal is dismissed. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where Office of Industrial Relations allowed public access to reports concerning Cross River Rail project – where appellant companies in joint venture responsible for design and construction of Cross River Rail appealed decision to allow access to documents -- 1 of 31 -- 2 – where appellants contend Information Commissioner erred in characterising purpose for release of documents, in construing Sch 3 of the Right to Information Act 2009 (Qld) by taking public interest into account, and in finding grounds to believe disclosure would make the reports ‘exempt information’ under Sch 3 – relevant principles in making decision to release documents – whether impact on government function a relevant factor in determining whether duty of confidence should be imposed – whether public interest relevant consideration – whether sufficient evidence before Commissioner to establish publication would have endangered life or physical safety or resulted in serious act of harassment or intimidation – appeal dismissed Right to Information Act 2009 (Qld), s 3(1), s 47(3)(a), s 48, s 119(1), s 119(3), s 119(5)(a), Sch 3 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 25 Work Health and Safety Act 2011 (Qld) Work Health and Safety Regulation 2011 (Qld) Adani Mining Pty Ltd v Office of the Information Commissioner & Ors [2020] QCATA 52 Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987) 10 NSWLR 86 Australian Workers’ Union and Queensland Treasury; Ardent Leisure Limited (Third Party) [2016] QICmr (28 July 2016 Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 Esso Australia Resources Ltd & Ors v Plowman & Ors (1995) 183 CLR 10 Johns v Australian Securities Commission (1993) 178 CLR 408 Minister for Immigration and Citizenship v Kumar (2009) 238 CLR 448 Park v Office of Information Commissioner [2021] QCATA 109 Purrer v Office of the Information Commissioner [2021] QCATA 92 Ramsay Health Care Ltd v Information Commissioner & Anor [2019] QCATA 66 Re B and Brisbane North Regional Health Authority (1994) 1 QAR 279 Re Lobo and Department of Immigration and Citizenship (2011) 124 ALD 238 Seeney and Department of State Development; Berri Limited (Third Party) (2004) 6 QAR 354 Seven Network (Operations) Limited and Safe Food Production Queensland, Unreported, Queensland Information Commissioner, 10 February 2012 -- 2 of 31 -- 3 Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services & Health (1990) 22 FCR 73 Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services & Health (1991) 28 FCR 291 Walker Group Holdings Pty Ltd v Queensland Information Commissioner [2021] QCATA 30 APPEARANCES & REPRESENTATION: Applicant: Hohl, J, instructed by Corrs Chambers Westgarth First Respondent: Black, M, instructed by Maurice Blackburn Lawyers Second Respondent: Pincott, C, instructed by Crown Law REASONS FOR DECISION Background [1] CPB Contractors Pty Ltd, BAM International Australia Pty Ltd, Ghella Pty Ltd and UGL Engineering Pty Ltd (‘Applicants’) together comprise a joint venture responsible for design and construction of infrastructure that forms part of the Queensland government’s “Cross River Rail” project. [2] Ms Kate Cole (‘First Respondent’) is a PhD student conducting research into the work environment of tunnel workers in Australia, and specifically, their exposure to respirable crystalline silica. [3] Workplace Health and Safety Queensland (‘WHSQ’) is Queensland’s work health and safety regulator under the Work Health and Safety Act 2011 (Qld) (‘WHS Act’), and is part of the Office of Industrial Relations (‘Second Respondent’). [4] On 11 August 2023, the First Respondent applied to the Second Respondent for access under the Right to Information Act 2009 (Qld) (‘RTI Act’) to information including air monitoring reports on the Cross River Rail project, spanning a particular period. [5] The Second Respondent identified information responsive to the application (‘Reports’). Following consultation with entities including the Applicants, who objected to disclosure of the Reports, the Second Respondent decided, under the RTI Act, to refuse access to the Reports. [6] The First Respondent applied to the Office of the Information Commissioner for a review of that decision. [7] On 26 November 2024, the Information Commissioner set aside the Second Respondent’s decision to refuse access. The Information Commissioner relevantly found that the Reports were not exempt information under the RTI Act, and that there were no grounds upon which to refuse access to the Reports under that Act (‘Decision’). [8] This is an appeal from that Decision. -- 3 of 31 -- 4 Nature of the Appeal [9] Pursuant to s 25 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Tribunal’s appeal jurisdiction in this matter is that conferred on it by the RTI Act (the enabling Act). [10] Section 119(1) of the RTI Act provides that a participant in an external review (by the Information Commissioner) may appeal to the appeal tribunal against the Information Commissioner’s decision. The appeal tribunal has jurisdiction to hear and decide the appeal.1 [11] The appeal may only be on a question of law.2 [12] In Park v Office of Information Commissioner, DJ McGill SC considered the meaning of the “question of law” for the purposes of an Information Commissioner appeal:3 The appellant has appealed to the Tribunal from the decision of the first respondent, as he is entitled to under the [RTI] Act s 119. By that section, the appeal is only on a question of law, and may only be by way of a rehearing. The appeal provided by s 119, because it is confined to a question of law, is in the nature of judicial review. The appeal does not provide a mechanism for reconsidering any issue of fact decided by the [Information Commissioner], except on the narrow ground that, as a matter of law, the decision on the issue was not open on the material before the [Information Commissioner]. The only issue is whether an error of law was made by the first respondent… (citations omitted) [13] In Purrer v Office of the Information Commissioner, Daubney J said:4 The prescription that an appeal such as the present may “only” be on a question of law is notable. In a cognate context concerning appeals from this Appeal Tribunal to the Court of Appeal, the limitation in s 150(3)(a) of the [QCAT Act] that such an appeal may be made “only on a question of law” has been given full force, with the question of law defined precisely, and not extending to a mixed question of fact and law. The Appeal [14] The Applicants contend that there are four errors of law in the Decision. [15] Two of those purported errors arise from the part of the Decision concerning the equitable obligation of confidence under Schedule 3, item 8 of the RTI Act. [16] The other two arise from the part of the Decision concerning law enforcement or public safety information under Schedule 3, items 10(1)(c) and (d) of the RTI Act. The first alleged error [17] The Applicants contended that the Information Commissioner erred in law in characterising the purpose for which the relevant information was provided and 1 RTI Act, s 119(5)(a). 2 RTI Act, s 119(3). 3 [2021] QCATA 109, [3]. 4 [2021] QCATA 92, [34], citing Pivovarova v Michelsen [2019] QCA 256 and Lee v Crime and Corruption Commission; Crime and Corruption Commission v Lee [2020] QCA 201. -- 4 of 31 -- 5 received, as part of determining whether the relevant information was subject to an equitable obligation of confidence. [18] This error is said to arise from the part of the Decision in which the Information Commissioner considered whether the Reports were exempt information under Sch 3, item 8 of the RTI Act. The Decision [19] The Information Commissioner applied the well-established four element ‘test’ to determine whether the information was subject to an equitable obligation of confidence, which requires that:5 (a) the information in question must be identified with specificity; (b) it must have the necessary quality of confidence; (c) it must have been received in circumstances importing an obligation of confidence; and (d) there must be an actual or threatened misuse of the information. [20] The Information Commissioner found the first two elements to be satisfied.6 Given her conclusion on the third element, the Information Commissioner did not address the fourth element. Accordingly, the focus of this part of the Decision was the third element. [21] With respect to the circumstances in which the Reports were supplied, the Information Commissioner considered that there was no evidence of any communications that could give rise to an express obligation of confidence.7 There was no evidence to suggest, at the time the Reports were provided, that either of the relevant parties had specifically turned its mind to their confidentiality or otherwise, or to any particular conditions attaching to their supply and receipt.8 [22] The parties had not relied on any particular practices, discussions, warnings or promises given or requested about confidentiality, nor any particular steps taken to preserve or emphasise the secrecy of the Reports, or special care taken to restrict their disclosure.9 Rather, the Information Commission considered that the Reports appeared to have been supplied in an informal, ad hoc manner throughout the relevant stages of the project, using various modes of communication.10 [23] There was also no contractual obligation of confidence.11 [24] The Information Commissioner found that the relationship between WHSQ was governed by statute, with the Applicants being a “duty holder” and WHSQ being the “regulator” under the WHS Act, and with each having duties and obligations pursuant to that legislation.12 She found that the Reports were commissioned by the Applicants 5 Decision, [36]. 6 Decision, [37]. 7 Decision, [41]. 8 Decision, [41]. 9 Decision, [45]. 10 Decision, [45]. 11 Decision, [34]. 12 Decision, [49]. -- 5 of 31 -- 6 and provided voluntarily to WHSQ to assist WHSQ to discharge its regulatory function to monitor and, if necessary, enforce, the Applicants’ compliance with their obligations under the Work Health and Safety Regulation 2011 (Qld) (‘WHS Regulation’).13 [25] The Information Commissioner found that, given WHSQ’s functions as a regulator under the WHS Act, WHSQ’s purpose in receiving the Reports was broader than that of the Applicants.14 She considered that “it should reasonably have been within the contemplation of the parties that disclosure by WHSQ of the data contained in the Reports might be necessary to discharge some functions and to aid in achieving the primary object of the WHS Act…”.15 [26] Ultimately, the Information Commissioner was not satisfied that the third element had been established.16 She was not satisfied that the relevant circumstances that attended the supply of the Reports were “sufficient to impose an equitable obligation of confidence on [the Second Respondent] in respect of the Reports”.17 Contentions on appeal [27] The Applicants submitted that the Information Commissioner erred in her reasoning to this conclusion by not properly taking into account the purpose for which the Reports had been provided and received.18 [28] The Applicants accepted that the Information Commissioner’s finding that the Reports were commissioned by the Applicants and provided voluntarily to WHSQ to assist WHSQ to discharge its regulatory function with respect to the Applicants was a fair characterisation of the purpose for which the Reports were provided and received.19 [29] However, the Applicants contended that the Information Commissioner did not properly take that characterisation into account in determining whether or not the third element was established. Instead, it was submitted, the Information Commissioner “distorted” that characterisation by reference to two considerations:20 (a) firstly, the fact that the Reports were provided to WHSQ voluntarily; and (b) secondly, the fact that the recipient of the Reports, WHSQ, was a regulator. [30] The Applicants contended that the manner in which the Information Commissioner had regard to those two considerations, and/or the concomitant disregard for the purpose for which the Reports were provided, involved errors of law.21 Voluntary provision of the Reports [31] In the proceedings before the Information Commissioner, the Applicants had argued that the Reports were provided to WHSQ for the limited purpose of demonstrating 13 Decision, [49]. 14 Decision, [62]. 15 Decision, [65]. 16 Decision, [71]. 17 Decision, [69]. 18 Applicants’ Submissions dated 21 May 2025 (‘AS’), [13]. 19 AS, [14]-[15]. 20 AS, [15]. 21 AS, [16]. -- 6 of 31 -- 7 compliance with its obligations under WHS Regulation, and that both the Applicants and WHSQ had reasonably understood that the Reports could not be used or disclosed for any other purpose.22 In this context, the Information Commissioner cited the Applicants’ reliance on the following statement of principle in Johns v Australian Securities Commission (‘Johns’):23 A statute which confers a power to obtain information for a purpose defines, expressly or impliedly, the purpose for which the information when obtained can be used or disclosed. The statute imposes on the person who obtains information in exercise of the power a duty not to disclose the information obtained except for that purpose. If it were otherwise, the definition of the particular purpose would impose no limit on the use or disclosure of the information. The person obtaining information in exercise of such a statutory power must therefore treat the information obtained as confidential whether or not the information is otherwise of a confidential nature. Where and so far as a duty of non-disclosure or non-use is imposed by the statute, the duty is closely analogous to a duty imposed by equity on a person who receives information of a confidential nature in circumstances importing a duty of confidence. [32] Shortly after this, the Information Commissioner stated:24 I do not accept that the principle expressed in Johns necessarily applies in circumstances where information is provided voluntarily. Johns dealt specifically with the exercise of a power to compel the production of information under section 19 of the Australian Securities Commission Act 1989 (Cth), that is, the power to compel persons to appear for examination on oath and to answer questions. Furthermore, the court found that a person who obtained information in the exercise of the compulsory power contained in section 19 came under a statutory (not equitable) duty of confidence with respect to the information. It was therefore important to ascertain the purposes, under the legislation, for which the information could legitimately be used or disclosed. [33] Whilst accepting that the principle in Johns was incapable of immediate application to the case before the Information Commissioner, the Applicants submitted that her reference to ‘the principle in Johns’ was a reference to the equivalent, in a statutory context, of the separately established principle in equity which recognises the importance of a limited purpose behind the provision and receipt of information to the identification of the existence and scope of an obligation of confidence.25 [34] The Applicants submitted that the Information Commissioner erred in concluding that this principle does not ‘necessarily’ apply in circumstances where the information is provided voluntarily.26 There was, it was submitted, ample authority for the proposition that the voluntary provision of information is not inconsistent with the information being received for a limited purpose, such that it is provided subject to an equitable obligation of confidence.27 The Applicants contended that the fact that the 22 Decision, [58]-[59]. 23 (1993) 178 CLR 408, 424. See Decision, [58]. 24 Decision, [61]. 25 AS, [19]-[20]. 26 AS, [20]. 27 AS, [20]. -- 7 of 31 -- 8 Reports were provided voluntarily ought not to have weighed against a finding that they were received in circumstances importing an obligation of confidence.28 [35] In her Decision, the Information Commissioner set out the principles relevant to determining whether the information had been communicated and received in circumstances importing an obligation of confidence. She identified that in order to fulfil this requirement, the “recipient should be fixed with an enforceable obligation of conscience not to use the confidential information in a way that is not authorised by the confider of it”.29 [36] The Information Commissioner noted the relevance of what each party to the communication knew, or ought to have known.30 She explained that even where there was no express mention of confidentiality, participants in certain kinds of communications can generally assume they will be treated as confidential.31 She identified that it was necessary to consider and evaluate all of the relevant circumstances surrounding the supply of the information to determine whether those circumstances, as a whole, imparted an obligation of confidence.32 [37] The Information Commissioner also identified that the ‘limited purpose’ test must be applied against the competing interests of both parties to the communication, rather than simply from the confider’s point of view.33 [38] We do not understand the Information Commissioner to be concluding that the principle established in equity, which recognises the importance of ascertaining the purpose for which information was provided and received to determine the existence and scope of an obligation of confidence, is incapable of application in circumstances where information is provided voluntarily. [39] The Information Commissioner noted, in respect of the limited purpose test, the Applicants’ reliance on “the principle set out in Johns” to support their submission about the purpose of the supply of the Reports, and the respective understanding of the parties about their use and disclosure.34 It is in response to this that the Information Commissioner stated that she did not accept that the principle in Johns necessarily applied in circumstances where the information was provided voluntarily. She then continued to explain her reasoning in the remainder of the paragraph. [40] We understand the Information Commissioner to be responding to the Applicants’ submission that the Reports were given for a limited purpose, by reference to Johns. The Information Commissioner explained the distinction between the circumstances before her and that in Johns, namely that Johns dealt with statutory obligations of confidence for information compulsorily obtained, and, in that context, recognised the 28 AS, [20]. 29 Decision, [38], citing Re B and Brisbane North Regional Health Authority (1994) 1 QAR 279 (‘Re B’), [76] which in turn refers, in the following paragraph, to Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services & Health (1990) 22 FCR 73 (‘Smith Kline’) and Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services & Health (1991) 28 FCR 291 (‘Smith Kline - Appeal’). 30 Decision, [38]. 31 Decision, [38]. 32 Decision, [39], citing Re B, [84], which in turn referred to Smith Kline and Smith Kline - Appeal. The Information Commissioner also listed a number of circumstances which could be relevant, citing Smith Kline - Appeal and other authorities. 33 Decision, [62], citing Smith Kline - Appeal, 302-304. 34 Decision, [58]-[59]. -- 8 of 31 -- 9 importance of ascertaining statutory purposes under the legislation for which the information could legitimately be used or disclosed. The Information Commissioner appears to be indicating that the Applicants’ submission about the limited purpose of the provision of the Reports was not necessarily itself determinative of the relevant purpose in the circumstances before her. [41] The Information Commissioner recognised that the relevant limited purpose principles were those which applied with respect to equitable obligations of confidence, and the Information Commissioner specifically referred to the Smith Kline - Appeal in respect of those principles,35 before going on to apply those principles. The Information Commissioner was correct in her understanding of the context of Johns, and she identified authorities relevant to the application of the limited purpose test in the context of equitable obligations of confidence. Rather than disavowing the application of the limited purpose principles in circumstances where information is voluntarily supplied, the Information Commissioner distinguished the circumstances before her from the context in Johns, and identified the relevant principles in the context of equity, which she then applied to determine the purpose for which the information was disclosed. [42] The Applicants also submitted that rather than the voluntary supply of information weighing against the imposition of a limited purpose and a concomitant obligation in equity, it actually tended to promote the existence of such a purpose and such an obligation.36 [43] The authorities to which the Applicants referred are examples of where, on the circumstances of those cases, the consensual provision of confidential information was a factor which supported a finding as to a limited purpose and a concomitant equitable obligation. Here, given the Information Commissioner’s findings with respect to the circumstances in which the Reports were supplied and received, and the respective purposes of the parties, the authorities to which the Applicants referred would not oblige the Information Commissioner to treat the voluntary supply of information here in the manner for which the Applicants contend. WHSQ’s status as a regulator [44] With respect to the WHSQ’s status as a regulator, the Applicants identified the following extract from the Information Commissioner’s decision, where she stated:37 Where an entity is required to discharge a statutory obligation, and it supples (sic) information to a regulator to demonstrate to the regulator that the obligation has been discharged, I am not satisfied, as a general principle, that equity will intervene to hold the regulator conscience-bound not to disclose that information. I consider that the proper discharge of a regulatory role will often be incompatible with a finding that the regulator is subject to an obligation of confidence in respect of the supplied information… 35 Decision, [62] citing Smith Kline - Appeal, 302-304. 36 AS, [20], [25]. 37 AS, [21], citing [50] of the Decision. In the footnote to the second sentence in this extract, the Information Commissioner cited Seven Network (Operations) Limited and Safe Food Production Queensland, Unreported, Queensland Information Commissioner, 10 February 2012 and Australian Workers’ Union and Queensland Treasury; Ardent Leisure Limited (Third Party) [2016] QICmr (28 July 2016). -- 9 of 31 -- 10 (citations omitted) [45] The Applicants submitted that the Information Commissioner had identified a general principle that equity will not intervene to hold a regulator conscience-bound where information is provided to it by an entity subject to its oversight.38 The Applicants submitted that this general principle ran contrary to authority, and that the Information Commissioner had erred in law.39 [46] The Information Commissioner’s statement that the proper discharge of a regulatory role would “often” be incompatible with a finding of obligation of confidence is not an identification by her of a general principle that equity will not intervene to hold a regulator conscience-bound where information is provided to it by an entity subject to its oversight. Rather, we understand the Information Commissioner to be indicating that she is not satisfied that there is such a general principle. As submitted by the Respondent,40 this is made clear by the remainder of the relevant paragraph, and particularly this portion, which states:41 In such circumstances, it is necessary to examine the legislation that governs both the relationship between the parties, and the supply of the information, to determine the uses for which the parties should reasonably have expected the information might need to be put in order for the regulator to discharge its obligations on behalf of the public. Only if the proposed use goes beyond that which ought to have been within the reasonable contemplation of the parties pursuant to the legislation, will equity potentially intervene to protect the information… (emphasis added) [47] The Applicants submitted that the Information Commissioner’s preoccupation with the status of WHSQ as a regulator had led the Information Commissioner to three conclusions:42 (a) firstly, whilst the Applicants’ purpose in supplying the Reports to WHSQ was to demonstrate compliance with the WHS Regulation, WHSQ’s purpose in receiving the Reports was broader, given its functions as a regulator; (b) secondly, having regard to the broad functions of WHSQ under the WHS Act, ‘imposing a duty of confidence in respect of the Reports would unreasonably interfere with WHSQ’s ability to discharge those functions’; and (c) thirdly, it should reasonably have been within the contemplation of the parties that disclosure by WHSQ of the data contained in the Reports might be necessary to discharge some functions and to aid in achieving the primary object of the WHS Act. [48] With respect to the first and third conclusions, the Applicants submitted that they were affected by error. They contended that in circumstances where WHSQ had accepted information voluntarily, rather than compelling its production, and where the Second Respondent had submitted that the purpose for which the Reports were received was the same as the purpose for which the Applicants had provided them, it was incorrect 38 AS, [26]. 39 AS, [26]. 40 First Respondent’s Submissions dated 24 June 2025 (‘RS’), [35]-[36]. 41 Decision, [50]. 42 AS, [27]. -- 10 of 31 -- 11 for the Information Commissioner to assume the recipient’s purpose must be as broad as its functions as a regulator, solely on account of the recipient’s status as a regulator.43 Rather, the necessary preliminary inquiry was whether the information was provided and received only for a limited purpose.44 [49] As we have explained above, the Information Commissioner did not misapprehend the applicable principles in identifying the purpose for which the information was imparted and received. [50] The Information Commissioner identified that it was necessary to consider and evaluate all of the relevant circumstances surrounding the supply of the information to determine whether those circumstances, as a whole, imported an obligation of confidence.45 She set out a number of circumstances which could be relevant to this determination.46 [51] As identified above, the Information Commissioner considered, at a preliminary stage, the purpose for which the Reports were supplied and received. She noted the submissions of both the Applicants and the Second Respondent in support of a finding that the Reports were supplied subject to an implied obligation of confidence. However, the Information Commissioner identified that the parties did not point to any particular practices between them, nor to any discussions, warnings or promises given or requested about confidentiality. Nor did they identify any particular steps taken to preserve the secrecy of the Reports, or special care taken to restrict their disclosure. The Information Commissioner found that the Reports appeared to have been supplied in an informal, ad hoc manner throughout the project, using various modes of communication.47 She considered that there was no evidence to suggest, at the time the Reports were provided, that either of the parties had specifically turned its mind to their confidentiality or otherwise, or to any particular conditions attaching to their supply and receipt.48 [52] The Information Commissioner found, in accordance with the Applicants’ and the Second Respondent’s submissions, that the Reports were provided voluntarily by the Applicants to enable WHSQ, as regulator, to discharge its duty under the WHS Act to monitor and, if necessary, to take action, to enforce the Applicants’ compliance with the WHS Regulation.49 However, the Information Commissioner found that the purpose for which the Reports had been received by WHSQ could not have been this same limited purpose.50 WHSQ’s purpose in receiving the Reports was necessarily broader, given its functions as a regulator under the WHS Act.51 [53] As was submitted by the First Respondent, the Information Commissioner was not obliged to accept the submissions with respect to purpose, and in the context of her findings about the circumstances of the supply of the Reports, she did not do so.52 In light of those factual findings, as detailed above, it was reasonably open for her to 43 AS, [28], [30]. 44 AS, [28]. 45 Decision, [39], citing Re B, [84]. 46 Decision, [39]-[40], citing authorities including Smith Kline - Appeal and Ramsay. 47 Decision, [45]. 48 Decision, [41]. 49 Decision, [49]. 50 Decision, [62]. 51 Decision, [62]. 52 RS, [43(b)]. -- 11 of 31 -- 12 infer that the purpose was not confined to the purpose for which the parties submitted, and was to be informed by the statutory context in which WHSQ operated, including its functions as a regulator. [54] The Information Commissioner did not misapprehend or misconstrue the relevant principles. She considered the issue of the purpose for which the Reports were provided and received. It is apparent from her reasoning that she considered that the circumstances before her were such that, as identified in the Smith Kline – Appeal, it was not a case in which the Applicants’ purpose in providing the information was determinative of the proper result, and it was therefore appropriate to consider other relevant circumstances in order to ascertain whether the information was provided in circumstances such as to give rise to an equitable obligation of confidence. [55] With respect to the second conclusion, the Information Commissioner found that imposing a duty of confidence in respect of the Reports would unreasonably interfere with WHSQ’s ability to discharge its functions.53 The Applicants submitted that this could only be relevant to the existence of an equitable obligation of confidence if it was sufficiently apparent to the Applicants at the time they provided the Reports to WHSQ, and the Information Commissioner had made no finding that this was the case.54 The Applicants further submitted that the fact that an equitable obligation of confidence might otherwise restrict WHSQ’s use of the Reports to discharge its functions did not mean that the obligation could not exist; rather, that restriction must simply be accepted as a consequence of WHSQ accepting the voluntary provision of the Reports on a confidential basis, rather than compelling their disclosure.55 [56] This finding represents the Information Commissioner’s application of the principle enunciated in the Smith Kline - Appeal, and explained in Re B, that it is a relevant factor, in determining whether a duty of confidence should be imposed, that the imposition of such a duty would inhibit or interfere with a government agency’s discharge of functions carried on for the benefit of the public.56 That finding was reasonably open to the Information Commissioner. [57] For the reasons outlined above, we do not consider that the errors alleged by the Applicants have been made out. The second alleged error [58] The Applicants contended that the Information Commissioner erred in law by misconstruing Sch 3, item 8 of the RTI Act, and/or taking irrelevant considerations into account, by having regard to the public interest in determining whether the relevant information was subject to an equitable obligation of confidence. The Decision [59] As identified above, the focus of the Information Commissioner’s decision relating to the exemption under Sch 3, item 8 of the RTI Act was on the third element of the test for establishing an equitable obligation of confidence, namely, that the information must have been received in circumstances importing an obligation of confidence. The 53 Decision, [65]. 54 AS, [31]. 55 AS, [32]. 56 Decision, [64] quoting Re B, [92]-[93], which in turn cites Smith Kline – Appeal. -- 12 of 31 -- 13 Information Commissioner was ultimately not satisfied that the third requirement had been established. [60] The Information Commissioner set out the relevant principles applicable to the question of whether the information had been received in circumstances importing an obligation of confidence.57 The Information Commissioner referred to the decision in Ramsay Health Care Ltd v Information Commissioner & Anor (‘Ramsay’)58 for the proposition that one circumstance to be taken into account, when considering the matrix of relevant considerations attending the communication of the information, is the ‘public interest in having access to the particular information’.59 She identified that “in terms of public interest considerations, as Ramsay made clear, a relevant factor to take into account is the public interest in accessing the information, not whether it would be contrary to the public interest to disclose it. A public interest balancing test is not required”.60 [61] The Information Commissioner identified that, as Queensland’s work health and safety regulator under the WHS Act, WHSQ was accountable to the Queensland public for the discharge of its functions, including to ensure that the object of the WHS Act is achieved. The Information Commissioner had earlier identified some of WHSQ’s functions as including:61 (a) providing advice and information on work health and safety to duty holders and to the community; (b) to collect, analyse and publish statistics relating to work health and safety; (footnote re has previously contributed) (c) to promote and support education and training on matters relating to work health and safety; and (d) to engage in, promote and coordinate the sharing of information to achieve the object of the WHS Act. [62] The Information Commissioner had also earlier identified the object of the WHS Act, including that relating to ‘the protection of workers and other persons against harm to their health, safety and welfare through the elimination or minimisations of risks arising from work or from particular types of substances or plant’.62 [63] In the context of her discussion of public interest considerations, the Information Commissioner identified WHSQ’s particular statutory role and duties. She explained that as Queensland’s health and safety regulator, WHSQ deals with information to further the public interest in ensuring that the objects of the WHS Act are achieved.63 The Information Commissioner observed that WHSQ was accountable to the public 57 Decision, [38]-[40], [43]. 58 [2019] QCATA 66. 59 Decision, [40], citing Ramsay, [82]. 60 Decision, [56]. 61 Decision, [62], citing s 152 of the WHS Act. 62 Decision, [65], citing s 3(1) of the WHS Act. 63 Decision, [66]. -- 13 of 31 -- 14 for the discharge of its functions.64 In this case, this included functions and responsibilities relating to the Cross River Rail project.65 [64] The Information Commissioner referred to Ramsay for the proposition that ‘the public interest in obtaining access to the Reports is a factor to be taken into account when considering all of the circumstances surrounding the communication of the Reports’.66 The Information Commissioner referred to the First Respondent’s submissions before her, including those relating to ‘enabl[ing] the public to scrutinise the effectiveness of the measures put in place to minimise or eliminate risks to workers’ health and safety’ and to contribute to the transparency of WHSQ’s ‘oversight of the [Applicants] on behalf of the people of Queensland’.67 [65] The Information Commissioner was not satisfied that it had been established, through the relevant circumstances that attended the supply of the Reports, that those circumstances were sufficient to impose an equitable obligation of confidence.68 The Information Commissioner stated:69 In arguing for the existence of an equitable obligation of confidence, the JV and OIR rely almost entirely on the statutory framework of the WHS Act, and the presence in that legislation of a confidentiality provision, rather than any specific circumstances attending the manner in which the Reports were supplied. As noted, a breach of a statutory confidentiality provision does not give rise to an action in equity for breach of confidence. But in any event, the WHS Act permits disclosure of information to enable WHSQ to exercise a power or function under the WHS Act, which includes reporting on, and educating about, work health and safety risks, and ways in which duty- holders can minimise those risks into the future. Given this, and the functions and duties of WHSQ as the regulator more generally, I am not satisfied that the JV and WHSQ could reasonably have held an expectation of confidence regarding the Reports. I acknowledge that the Reports hold some sensitivity, but I would not place significant weight on this factor taking account of the fact that the identities of the tested workers are not in issue, and the information is now three to four years old, as well as the nature of the testing results more generally. When the additional significant weight of the public interest in accessing the Reports is added into the evaluation of this matrix of all of the relevant circumstances surrounding the supply of the Reports, I am not satisfied that the circumstances are sufficient to find that equity would intervene to hold OIR conscience-bound not to disclose the Reports to the applicant. I am therefore not satisfied that the third requirement for establishing the existence of an equitable obligation of confidence is satisfied… (emphasis added) 64 Decision, [66]. 65 Decision, [66]. 66 Decision, [67]. 67 Decision, [67]. 68 Decision, [69]. 69 Decision, [70]-[71]. -- 14 of 31 -- 15 Contentions on appeal [66] The Applicants’ submissions distinguished between two related senses in which the public interest may affect a determination as to whether a party is bound by an equitable obligation of confidence:70 (a) the first is a ‘public interest’ defence to disclosure of information; and (b) the second is the courts’ recognition that, where the government claims that an equitable obligation of confidence has arisen in relation to certain information, the ‘test’ for the existence of such an obligation in equity will incorporate an additional requirement that non-disclosure be in the ‘public interest’. [67] It was common ground in this appeal that the public interest in the first sense was not relevant in this case. [68] The Applicants sought to distinguish between ‘government information’, characterised as information of or about government that is typically generated by the government itself, and ‘third party information’, characterised as information merely provided to the government.71 The Applicants argued that where ‘government information’ was in issue, there was an additional element in the ‘test’ for an equitable obligation of confidence, namely, that the public interest must require that the publication of the information be restrained.72 [69] The rationale for this was that the equitable principle had been developed to protect private interests, and not the different interests of the government which acts in the public interest.73 It was argued that this rationale for the unique treatment of government information did not apply to third party information. The test for an equitable obligation of confidence for ‘third party information’ applied ordinary equitable principles, and did not involve this additional consideration of the public interest.74 [70] The Applicants argued that the public interest was not relevant in the first sense as a defence, and was not relevant in the second sense because the information in issue was not ‘government information’. It was argued that these were the only two senses in which the public interest could be relevant, and because neither was applicable, it was an error for the public interest to arise as a consideration at all.75 [71] The Applicants submitted that accordingly, the Information Commissioner’s resort to public interest considerations in her consideration of the third element of the test for an equitable obligation of confidence was wrong at law. It was submitted that public interest considerations were strictly irrelevant to the existence of an equitable obligation of confidence in this case, and ought not have been taken into account.76 The Applicants identified the Information Commissioner’s reliance on the decision of Ramsay, and argued that to the extent Ramsay had suggested that the public interest 70 AS, [34]-[37]. 71 AS, [38]; Applicants’ Submissions in Reply dated 2 July 2025 (‘ASR’), [17]. 72 AS, [37] referring to Mason J in Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 (‘John Fairfax’), 51-2 and Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987) 10 NSWLR 86 (‘Spycatcher Case’), 191 (McHugh JA). 73 AS, [36]-[38], referring to John Fairfax, 51-2. 74 AS, [39]. 75 Transcript of proceedings, 8 September 2025, P1-12 lines 7-10. 76 AS, [40]. -- 15 of 31 -- 16 must be considered in cases where an equitable obligation of confidence is asserted over ‘third party information’, it was incorrect.77 [72] The Applicants submitted, therefore, that the Information Commissioner’s error lay in her:78 (a) treating public interest as a factor relevant to the third element of the test for whether an equitable obligation of confidence was established; and (b) treating the Reports as government information, with associated public interest considerations, rather than third party information, for which public interest considerations were strictly irrelevant. Relevant principles John Fairfax and the Spycatcher Case [73] Equitable principles had been fashioned to protect the personal, private and proprietary rights of citizens, and not to protect the very different interests of the executive government.79 Equity can still protect government information, but it will “look at the matter through different spectacles”.80 When equity is applied to government confidences (that is, when the government seeks to enforce an obligation of confidence), it will be necessary to determine that claim by reference to the public interest.81 [74] The Applicants submitted that the rationale for reference to the public interest in the second sense was as explained by Mason J in John Fairfax as follows:82 The equitable principle has been fashioned to protect the personal, private and proprietary interests of the citizen, not to protect the very different interests of the executive government. It acts, or is supposed to act, not according to standards of private interest, but in the public interest. This is not to say that equity will not protect information in the hands of the government, but it is to say that when equity protects government information it will look at the matter through different spectacles. It may be sufficient detriment to the citizen that disclosure of information relating to his affairs will expose his actions to public discussion and criticism. But it can scarcely be a relevant detriment to the government that publication of material concerning its actions will merely expose it to public discussion and criticism. It is unacceptable in our democratic society that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticize government action. Accordingly, the court will determine the government’s claim to confidentiality by reference to the public interest. Unless disclosure is likely to injure the public interest, it will not be protected. 77 AS, [41]. 78 AS, [38]-[40]. 79 John Fairfax, 51-52. 80 John Fairfax, 51-52. 81 John Fairfax, 52. 82 AS, [36] quoting John Fairfax, 51-52. The prevailing view appears to be that detriment is not an additional fifth element to the test outlined above – see Daubney J’s analysis of this issue (in obiter dicta) in Ramsay at [92]-[96]. -- 16 of 31 -- 17 [75] In the Spycatcher Case, McHugh JA referred to the statement in John Fairfax that equity will protect the confidentiality of information imparted in confidence by governments, and observed:83 Courts of Equity will protect the confidentiality of information imparted in confidence by governments…Courts of Equity will also protect the confidentiality of information given by citizens to governments and their departments and agencies. But the relationship between the modern State and its citizens is so different in kind from that which exists between private citizens that rules worked out to govern the contractual, property, commercial and private confidences of citizens are not fully applicable where the plaintiff is a government or one of its agencies. Private citizens are entitled to protect or further their own interests, no matter how selfish they are in doing so. Consequently, the publication of confidential information which is detrimental to the private interest of a citizen is a legitimate concern of a court of Equity. But governments acts (sic), or at all events are constitutionally required to act, in the public interest. Information is held, received and imparted by governments, their departments and agencies to further the public interest. Public and not private interest, therefore, must be the criterion by which Equity determines whether it will protect information which a government or governmental body claims is confidential. (citations omitted) [76] Importantly, his Honour prefaced these observations by noting that when a question arises as to whether a person owes an obligation of confidence to a government in respect of information acquired in the course of his relationship with that government or a question arises as to whether a government or one of its departments or agencies owes an obligation of confidentiality to a citizen or employee, the equitable rules worked out in cases concerned with private relationships must be used with caution.84 [77] His Honour did not further explore the use of the equitable rules in circumstances where a government owes an obligation of confidence to a third party, because it did not arise on the facts of the particular case before him. [78] It should be noted at this point that both John Fairfax and the Spycatcher Case dealt with obligations of confidence in circumstances where the government was claiming the confidence over its own information. The RTI Act context [79] In circumstances where an obligation of confidence is owed to a third party by a government, about information in the hands of the government, it is not necessarily the case that the equitable rules derived from cases concerned with private relationships apply without modification. [80] The incorporation of particular general law concepts or principles into statute may sometimes produce some modification of the application of those general law doctrines.85 Concepts of general law may have been framed by judicial decisions 83 Spycatcher Case, 191. 84 Spycatcher Case, 190 (emphasis added). 85 Minister for Immigration and Citizenship v Kumar (2009) 238 CLR 448 (‘Kumar’), 455; Ramsay, [74]; Walker Group Holdings Pty Ltd v Queensland Information Commissioner [2021] QCATA 30 (‘Walker’), [29]-[31]. -- 17 of 31 -- 18 addressed to ends which do not precisely correspond to those of the statute, and “the translation from private to public law must accommodate the scope and purpose of the public law regime”.86 [81] In the current context, the issue of whether there is any modification to the principles relating to breach of confidence will be determined by reference to the scope and purpose of the RTI Act.87 The primary object of the RTI Act is the conferral of a right of access to information in the government’s possession or under the government’s control unless, on balance, it is contrary to the public interest to give the access.88 [82] Relevantly, an agency may refuse access to information to the extent it comprises exempt information under s 48.89 Exempt information means the information that is exempt information under Schedule 3.90 Schedule 3 sets out the types of information the disclosure of which the Parliament has considered would, on balance, be contrary to the public interest.91 [83] Item 8 of Schedule 3 of the RTI Act was said to “re-enact” s 46(1)(a) of the repealed Freedom of Information Act 1992 (Qld).92 Section 46(2) limited the operation of s 46(1)(a) to breaches of confidences owed to a person or body other than specified emanations of government.93 The wording of s 46(1)(a) was reasonably similar to that of s 45(1) of the Freedom of Information Act 1982 (Cth), following its amendment in 1991, which provided that a document was exempt if its disclosure under that Act would found an action, by a person other than the Commonwealth, for breach of confidence. [84] It is therefore apparent that the section is intended to operate (though not necessarily exclusively) in circumstances where information has been communicated to government in confidence by third parties outside of government.94 [85] It is therefore useful to consider the principles relating to breach of confidence in a situation where third parties seek to repose confidences in a government agency. Third parties providing information to a government agency [86] These principles were examined in detail by Gummow J at first instance, and the Full Court of the Federal Court on appeal, in the Smith Kline and Smith Kline - Appeal cases, in the context of a third party’s claim of an obligation of confidence with respect to information supplied by them to the government. [87] In Smith Kline, Gummow J considered the third element of the test for breach of confidence, namely, whether the information had been communicated in circumstances importing an obligation of confidence. [88] His Honour explained how the concept of the “public interest” identified by McHugh JA in the Spycatcher Case could be understood in the context of a third party’s claim 86 Kumar, 455. 87 Kumar, 455; Ramsay, [74]; Walker, [29]-[31]. 88 RTI Act, s 3(1)(a). 89 RTI Act, s 47(3)(a). 90 RTI Act, s 48(4). 91 RTI Act, s 48(2). 92 Explanatory Notes, Right to Information Bill 2009, 60. 93 Specifically, a person in the capacity of a Minister, their staff or consultant, an officer of an agency, or the State or an agency. 94 See, for example, Re B, [113]; Walker, [20]-[21], [26]. -- 18 of 31 -- 19 of an obligation of confidence with respect to information supplied by them to the government. His Honour stated that the circumstance that the disputants included an officer of the Commonwealth with attendant responsibilities under legislation (namely, the respondent Secretary) added “another dimension”.95 Gummow J identified that the “special considerations” that apply in such a case appeared in McHugh JA’s judgment in the Spycatcher Case. His Honour set out the passage of McHugh JA’s judgment (quoted above), and stated:96 The public interest to which McHugh JA referred as an aspect of government in this case is represented by the considerations to which, on a proper construction of the Regulations, the Secretary may or must have regard in exercising the discretions given him as the relevant decision maker. [89] In dismissing the appeal from Gummow J’s decision, the Full Court of the Federal Court referred to the “limited purpose” test (also referred to as “confider’s purpose”), and stated:97 In many circumstances, that suggested test will produce a proper result, but the circumstances in which confidential information is supplied will vary widely. To determine the existence of confidentiality and its scope, it may be relevant to consider whether the information was supplied gratuitously or for a consideration; whether there is any past practice of such a kind as to give rise to an understanding; how sensitive the information is; whether the confider has any interest in the purpose for which the information is to be used; whether the confider expressly warned the confide against a particular disclosure or use of the information – and, no doubt, many other matters. [90] Their Honours explained that the test of confider’s purpose will not ordinarily be appropriate where each party’s interest is quite different, and known to be so.98 They referred to an example of a person supplying information to the government for the purpose of obtaining a licence, who “would expect that the information would be kept against the day when it might be needed to serve the government’s legitimate interests”.99 The Full Court concluded this passage by referring to Gummow J’s reference to the Spycatcher Case, and themselves set out a similar extract of McHugh JA’s reasons in that case.100 [91] In this way, and in this context, the Full Court appeared to (at least implicitly) approve of Gummow J’s observations about the “special considerations” of the public interest that apply where the disputants included a government party, including the performance of statutory duties or responsibilities or functions. It indicates agreement with Gummow J’s point that the concept of “public interest” considerations, as expressed in the Spycatcher Case, could be considered relevant in the circumstances found in Smith Kline. More specifically, where third party information is provided to government, matters such as the statutory duties and responsibilities of government (including its officers), can be public interest considerations relevant to an assessment 95 Smith Kline, 96. 96 Smith Kline, 96-97. 97 Smith Kline - Appeal, 302-303. 98 Smith Kline - Appeal, 303. 99 Smith Kline - Appeal, 303. Those interests included, for example: to provide a record in case the decision is challenged as improper; to enable statistical information to be collected; or, acting directly against the interests of the confider, to compare the information supplied with the confider’s subsequent performance, in determining whether to cancel the licence. 100 Smith Kline - Appeal, 303. -- 19 of 31 -- 20 as to whether the circumstances in which information was communicated give rise to an obligation of confidence. Ramsay [92] In Ramsay, one of the grounds of appeal considered by Daubney J concerned the issue of whether the information in question was subject to an equitable obligation of confidence, and the argument turned on the Information Commissioner’s consideration of the third element, namely, whether the circumstances of the communication created an equitable obligation of confidence.101 His Honour referred to a number of authorities including John Fairfax, the Spycatcher Case, Smith Kline and the Smith Kline - Appeal in the context of the RTI Act. [93] Justice Daubney concluded that public interest considerations can comprise part of the circumstances to be considered in the context of the third element for an equitable obligation of confidence, namely, whether the information has been communicated in circumstances importing an obligation of confidence.102 [94] His Honour cited Information Commissioner Albietz’s reference, in Re B, to the observations in Smith Kline and the Smith Kline - Appeal, and agreed with the Information Commissioner’s conclusion that the “fundamental inquiry is aimed at determining, on an evaluation of the whole of the relevant circumstances in which the confidential information was imparted to the defendant, whether the defendants ought to be bound with an equitable obligation of confidence”.103 [95] Information Commissioner Albietz’s reasoning clearly appreciated the distinction between the circumstances considered in the Spycatcher Case (where the government sought to protect confidence over its own information) and circumstances where a third party claimed an obligation of confidence with respect to information supplied by them to the government. In the paragraph preceding that to which Daubney J referred, Information Commissioner Albietz discussed this distinction, and noted the importance of Smith Kline and the Smith Kline - Appeal in “draw[ing] attention to important considerations that arise in, and may be peculiar to, the situation where persons outside government seek to repose confidences in a government agency…”.104 [96] Daubney J also referred to Esso Australia Resources Ltd & Ors v Plowman & Ors (‘Esso’),105 where one of the issues considered was whether an obligation of confidence existed over documents produced or disclosed in a private arbitration, and where the parties included public utilities. The arguments of the parties included arguments directed towards equitable obligations of confidence, but the issue was not determined by the High Court.106 The circumstances in Esso represent a different context to the present case, but its relevance lies in its contribution to a general understanding of how obligations of confidence might be modified when dealing with statutory authorities or public utilities, and that the “public interest” can be relevant where one party to a transaction is a government entity. 101 Ramsay, [69]-[71]. 102 Ramsay, [82], [86]. 103 Ramsay, [79] referring to Re B, [84]. 104 Re B, [83]. 105 (1995) 183 CLR 10. 106 Esso, 24-25. -- 20 of 31 -- 21 [97] Although the issue did not specifically arise in that appeal, Mason CJ (with whom Dawson and McHugh JJ agreed) noted that there may be circumstances in which third parties and the public have a legitimate interest in knowing what has transpired in an arbitration, which would give rise to a “public interest” exception. Chief Justice Mason referred to the difference in the treatment of governmental secrets from personal and commercial secrets, and noted his own statements in John Fairfax about the “different spectacles” through which the disclosure of government information should be viewed, and the need for the government to prove that the public interest demands non-disclosure.107 His Honour considered that the approach in John Fairfax should also be adopted with respect to statutory authorities or public utilities.108 [98] Justice Toohey agreed with Mason CJ’s observation that there was a public interest “exception” to the principle that a party to an arbitration was under a duty not to disclose information obtained by reason of the arbitration, but noted that it was unnecessary to examine the boundaries of that exception.109 [99] The reasons of Brennan J also contain observations on the duty of public authorities to account to the public for the manner in which they perform their functions, including by giving information to the public directly, to a Minister, or to a government department or some other public authority.110 [100] In Ramsay, Daubney J did not consider their Honours’ use of the terminology of a public interest “exception” suggested that public interest considerations were, of themselves, determinative of the existence of an equitable obligation of confidence with respect to information held by a government.111 His Honour stated:112 To do so would effectively delete one of the settled elements of the test for ascertaining whether such an obligation exists (i.e., whether the subject information was received in circumstances which imported an obligation of confidence) and replace that with quite a different requirement (i.e., whether it is in the public interest that the information be subject to an obligation of confidence). Even acknowledging the necessity, in the present context, for the private law to be translated to accommodate the scope and purpose of the relevant public law regime, I think that removing a general element from the test and replacing it with this quite different requirement would be a step too far. [101] His Honour continued: To posit such a specific public interest requirement would fly in the face of repeated judicial acknowledgment that regard needs to be had to all of the circumstances in which the information was supplied to ascertain whether those circumstances as a whole imparted an obligation of confidence. In the case of information produced to and held by a government agency, it can be accepted that the public interest in having access to the particular information is one of the factors to be considered when ascertaining whether or not that information is held under an obligation of confidence. Indeed, it may be a factor to which considerable weight attaches. But it is not the sole determining factor. It needs 107 Esso, 31. 108 Esso, 32. 109 Esso, 48. 110 Esso, 37-38. 111 Ramsay, [81]. 112 Ramsay, [81]. -- 21 of 31 -- 22 to be weighed in the mix of all the relevant circumstances under which the information was imparted to ascertain whether the information is held subject to an equitable obligation of confidence. [102] We understand his Honour to be here concluding that public interest factors can form part of the circumstances to be considered in the context of the third element for an equitable obligation of confidence, namely, whether the information has been communicated in circumstances importing an obligation of confidence. Those public interest factors form part of “the matrix of relevant considerations that bear on construing the effect of the communication”.113 [103] His Honour also concluded that public interest considerations were not, of themselves, determinative of the existence of an equitable obligation of confidence with respect to information held by a government. That is, in the context of exempt information under the RTI Act, there is no separate public interest test (or element) which exists as additional to the test to determine the existence of an equitable obligation of confidence, nor which supplants or replaces the settled elements of that test. [104] The Applicants submitted that his Honour was in error in concluding that the public interest was relevant where information had been supplied in confidence to government by a third party.114 The Applicants referred to authorities including John Fairfax and the Spycatcher Case to argue that considerations of the public interest were only relevant in circumstances where the government was seeking to enforce an obligation of confidence with respect to its own information.115 [105] The Applicants further submitted that even assuming the public interest was relevant, it was unclear why it had been taken as a factor bearing on the third element of the test. It was submitted that, in line with authorities such as John Fairfax and the Spycatcher Case, it arose either as a defence (which was not relevant in the present context) or as an additional element to the test.116 [106] The Applicants also submitted that in referring to “information produced to and held by a government agency”, which he associated with considerations of the public interest, Daubney J had collapsed the distinction between the appropriate treatment of government information, over which a government entity sought to enforce an obligation of confidence, and third party information, over which the third party sought to enforce an obligation of confidence.117 [107] We do not accept those submissions, and do not consider that the Applicants have demonstrated error with respect to Daubney J’s conclusions in Ramsay. [108] The relevant principles from the cases considered by Daubney J in Ramsay are set out above. The relevance of the principles in John Fairfax and the Spycatcher Case was considered by Daubney J in the context of the RTI Act, and by reference to the High Court’s observations in Kumar. [109] It is apparent that the principles derived from John Fairfax and the Spycatcher Case do not apply to that context in the manner for which the Applicants contend. 113 Ramsay, [86]. 114 AS, [41]. 115 AS, [38]. 116 Transcript of proceedings, P1-25 lines 26-30. 117 Transcript of proceedings, P1-25 lines 36-42. -- 22 of 31 -- 23 [110] It can be readily accepted that those cases form part of the broad framework of principle relating to the way in which equitable obligations of confidence may be modified where one of the parties to the obligation includes the government. However, those cases dealt with circumstances in which the government was seeking to enforce an obligation of confidence over its own information. This is different to the general context of the RTI Act which, as explained above, is intended to operate (though not necessarily exclusively) in circumstances where information has been communicated to government in confidence by third parties outside of government. In our view, in this context, the authorities upon which the Applicants rely do not operate to restrict considerations of the public interest in the manner for which the Applicants contend. [111] The primary basis of Daubney J’s conclusions with respect to the relevance of public interest considerations to the third element is supported by the reasoning in Smith Kline and the Smith Kline - Appeal, to which his Honour refers. As identified above, these authorities identify the concept of public interest discussed in the Spycatcher Case, and contemplate that where third party information is provided to government, public interest considerations (such as the statutory duties and responsibilities of government) can be relevant to an assessment as to whether the circumstances in which information was communicated give rise to an obligation of confidence. [112] Justice Daubney considered these and other authorities in coming to the view that public interest considerations were not, of themselves, determinative of the relevant inquiry. His Honour explained that to hold otherwise would be to ignore the repeated judicial acknowledgement that regard needed to be had to all of the circumstances in which the information was supplied to ascertain whether those circumstances, as a whole, imparted an obligation of confidence. His Honour also referred to the observations of Mason CJ (who referred to his own observations in John Fairfax) and Toohey J in Esso, and observed that it would be “unsatisfactory” to articulate a separate test for the public interest in circumstances where the scope of any such test remained unclear in the general law. [113] Justice Daubney clearly appreciated the distinction between the circumstances considered in authorities such as the Spycatcher Case (where the government sought to protect confidence over its own information) and circumstances where a third party claimed an obligation of confidence with respect to information supplied by them to the government. [114] As noted above, his Honour expressly referred to Information Commissioner Albietz’s conclusions in Re B about the emphasis of the judgments in Smith Kline and the Smith Kline - Appeal, which immediately followed the paragraph in which Information Commissioner Albietz described those cases as “draw[ing] attention to important considerations that arise in, and may be peculiar to, the situation where persons outside government seek to repose confidences in a government agency…”.118 [115] His Honour referred to authorities including John Fairfax and the Spycatcher Case, and applied the relevant principals to the specific context of the RTI regime, in accordance with the considerations his Honour identified as arising from the decision in Kumar. That regime incorporates concepts from the general law (including the 118 Re B, [83]. -- 23 of 31 -- 24 elements for breach of confidence), into a legislative context directed to the protection of private interests of third parties who are owed an obligation of confidence by government recipients of third party information. [116] If information falls within the scope of an exemption in Schedule 3, Parliament has already determined where the balance of the public interest in disclosure lies – that is, it would harm the public interest. But that is not to exclude public interest considerations in circumstances where, outside of the context of the RTI Act (and here, under the general law), a consideration of the public interest is required to establish whether those circumstances are such as to fall within the Schedule 3 exemption. Here, it would not exclude public interest considerations where those considerations are relevant to determining whether the information is subject to an obligation of confidence. [117] We should note that when his Honour referred to an acceptance that “the public interest in having access to the particular information” as being relevant to ascertaining whether or not the information can be held under an obligation of confidence, we do not understand his Honour to be referring to a question of the public interest in a particular applicant having access to the information under the RTI Act. [118] As identified above, his Honour expressly disavows the adoption of either an overarching public interest test, or a public interest test as a separate element to the established test. Rather, in the context of his reasoning, we understand his Honour to be referring to any public interest factors in having access to the information in a general sense as being a relevant factor to be “weighed in the mix of all the relevant circumstances under which the information was imparted to ascertain whether the information is held subject to an equitable obligation of confidence”.119 As identified by the applicant in Ramsay, “the issue of public interest was identified as a discourse relevant to construing the meaning of the communication, amongst other variables…”.120 This could include, for example, the public interest relating to the statutory duties and responsibilities of government (such as in Smith Kline and the Smith Kline - Appeal), or matters of public accountability (such as in Esso). [119] The Applicants also submitted that his Honour had adopted the reasoning in the case of Seeney and Department of State Development; Berri Limited (Third Party) (‘Berri’),121 and had fallen into the same purported error;122 however, it is apparent that this is not so. His Honour only referred to Berri as part of the setting out of extracts of the Information Commissioner’s decision relevant to the appeal before his Honour. As identified above, the basis of his Honour’s conclusions was drawn from his Honour’s consideration of the relevant authorities and as set out in his reasons. [120] The Applicants also submitted that Daubney J had erred by effectively conflating the concept of public interest as used in the sense of a public interest defence to disclosure, with the discussion of the public interest factor as part of a ‘test’ for an equitable obligation of confidence in relation to government information.123 119 Ramsay, [82]. 120 Ramsay, [33]. 121 (2004) 6 QAR 354. 122 Transcript of proceedings, 8 September 2025, P1-19 line 24 – P1-20 line 44. 123 AS, [41]. -- 24 of 31 -- 25 [121] Daubney J noted that it was common ground between the parties in that case that the availability, or potential availability, of a defence to an action for breach of confidence is irrelevant to determination of the question under Sch 3, item 8 as to whether disclosure would “found” an action for breach of confidence.124 His Honour then stated: It is, however, clear on the Australian authorities that matters sometimes considered as part of a “public interest defence” are to be considered when the content of any equitable obligation of confidence is being considered and formulated. (citations omitted) [122] In support of this statement, his Honour cited part of Gummow J’s judgment in Smith Kline.125 Gummow J there referred to the apparent confusion arising from English jurisprudence about a “public interest” defence, and that the use of the terms “confidence” and “confidential” in authorities across a range of legal fields, including that of equitable obligations of confidence owed to government and between citizens, were not necessarily used in the same sense across the legal spectrum.126 Gummow J made the point that in considering whether an equitable obligation of confidence is established, “it is not a question of whether there is some “public interest” defence to the alleged breach of an obligation by the Secretary, but rather one of the content of any such obligation in its inception”.127 [123] It is clear that his Honour was aware of the distinction between the two “senses” in which the public interest is identified by the Applicants. Conclusions with respect to the Decision [124] As identified above, the Information Commissioner set out the relevant principles applicable to the question of whether the information had been received in circumstances importing an obligation of confidence.128 She referred to the decision in Ramsay for the proposition that one circumstance to be taken into account, when considering the matrix of relevant considerations attending the communication of the information, is the ‘public interest in having access to the particular information’.129 She identified that “in terms of public interest considerations, as Ramsay made clear, a relevant factor to take into account is the public interest in accessing the information, not whether it would be contrary to the public interest to disclose it. A public interest balancing test is not required”.130 [125] In the context of her discussion of public interest considerations, the Information Commissioner identified WHSQ’s particular statutory role and duties. She explained that as Queensland’s health and safety regulator, WHSQ deals with information to further the public interest in ensuring that the objects of the WHS Act are achieved.131 124 Ramsay, [72], citing Re Lobo and Department of Immigration and Citizenship (2011) 124 ALD 238 (‘Lobo’); Adani Mining Pty Ltd v Office of the Information Commissioner & Ors [2020] QCATA 52, [39] (citing Lobo and Ramsay). 125 (1990) FCR 73, 110. 126 Smith Kline, 111. 127 Smith Kline, 110. 128 Decision, [38]-[40] and [43]. 129 Decision, [40], citing Ramsay, [82]. 130 Decision, [56]. 131 Decision, [66]. -- 25 of 31 -- 26 The Information Commissioner observed that WHSQ was accountable to the public for the discharge of its functions.132 In this case, this included functions and responsibilities relating to the Cross River Rail project.133 [126] The Information Commissioner referred to the First Respondent’s submissions before her, including those relating to ‘enabl[ing] the public to scrutinise the effectiveness of the measures put in place to minimise or eliminate risks to workers’ health and safety’ and to contribute to the ‘transparency’ of WHSQ’s ‘oversight of the [Applicants] on behalf of the people of Queensland’. [127] In coming to her conclusion that the relevant circumstances that attended the supply of the Reports were not such as to give rise to an equitable obligation of confidence, the Information Commissioner took into account the public interest considerations which she had earlier identified.134 [128] In doing so, the Information Commissioner did not err in the manner for which the Applicants contend. Her identification of considerations of public interest as relevant, and her treatment of those considerations in her reasoning to her conclusion were in accordance with applicable principles, including as detailed in Ramsay. [129] As part of her conclusion on the issues of public interest, the Information Commissioner does say “…there is significant public interest in the [First Respondent] accessing the Reports”.135 As we have explained above, we do not consider that this is a consideration of a kind contemplated by Daubney J in Ramsay. However, on a fair reading, it is apparent that public interest considerations that the Information Commissioner considered relevant, and which informed her assessment of the circumstances in which information was communicated, were those of the statutory duties and responsibilities of WHSQ, and its public accountability, as a regulator, for fulfilling those duties and responsibilities. [130] We do not consider that this error has been established. The third and fourth alleged errors [131] As identified by the Applicants, the third and fourth alleged errors are, in effect, different ways of characterising the same issue.136 It is therefore convenient to deal with them together. [132] The Applicants submitted that the Information Commissioner found that, taking into account all of the relevant facts and circumstances, there was insufficient evidence to establish real and substantial grounds for believing that disclosure of the Reports under the RTI Act would result in endangerment, harassment or intimidation, such as to make the information in the Reports ‘exempt information’ under Sch 3, items 10(1)(c)-(d) of the RTI Act.137 132 Decision, [66]. 133 Decision, [66]. 134 Decision, [70]. 135 Decision, [68]. 136 AS, [4]. 137 AS, [42]. -- 26 of 31 -- 27 The Decision [133] The Information Commissioner identified that: (a) the phrase “could reasonably be expected” in Sch 3, item 10(1) meant the relevant expectation had to be reasonably based. What was required was “real and substantial grounds for expecting the relevant occurrence, which can be supported by evidence or cogent reasoning”, and the expectation “must arise as a result of disclosure of the specific information in issue, rather than from other circumstances”;138 (b) the evidence relied upon in support of a claim of exemption under item 10(1) “must establish real and substantial grounds for believing that disclosing the information will directly” endanger a person or result in a person being subjected to a serious act of harassment or intimidation;139 (c) there must be a causal link between the disclosure of the information and the expected conduct, and such a link “has been found to exist where there is evidence that such conduct occurred as a result of the release of similar information in the past”.140 [134] The Information Commissioner considered that a range of facts and circumstances were relevant to assessing that issue, including the fact that the tunnelling phase of the Cross River Rail project had concluded in December 2021, the data in the Reports concerned circumstances existing in 2020 and 2021, and what was disclosed by the data. She also identified that it was relevant to consider, in line with the principle she had earlier stated, “whether any evidence exists to indicate that the release of information of a similar nature in the past has given rise to instances of endangerment of life or physical safety, or to instances of serious acts of harassment or intimidation”.141 [135] The Information Commissioner explained that the Applicants “rely chiefly on acts of union aggression, harassment and intimidation against the [Applicants’] workers to support the application of Sch 3, items 10(1)(c) and (d)”, and proceeded to quote an extract of the Applicants’ submissions.142 The Information Commissioner identified that the evidence provided in support of the submission comprised links to numerous media reports about instances of union action in relation to Cross River Rail operations which involved various behaviours and conduct.143 She noted that the Applicants relied upon these examples of past behaviour as evidence that disclosure of the Reports could reasonably be expected to have the requisite effects provided for in Sch 3, items 10(1)(c) and (d).144 [136] The Information Commissioner accepted that union activity, relating to a variety of workplace issues, had been well documented over the past several years, including in the media.145 She accepted that at least some of that activity could reasonably be 138 Decision, [73]. 139 Decision, [74]-[75]. 140 Decision, [77]. 141 Decision, [82]. 142 Decision, [78]. 143 Decision, [79]. 144 Decision, [79]. 145 Decision, [80]. -- 27 of 31 -- 28 regarded as harassing or intimidatory in nature.146 However, the Information Commissioner identified that the issue for her to determine was “whether disclosure under the RTI Act of the specific information contained in the Reports could reasonably be expected” to endanger a person’s life or physical safety and/or result in a person being subjected to a serious act of harassment or intimidation.147 [137] The Applicants drew particular attention to the following reasoning of the Information Commissioner:148 [N]either [of the Applicants] has provided evidence that specifically links information about air quality testing with instances of the requisite behaviour [that is, endangerment of life or physical safety, or serious acts of harassment or intimidation]. The [Applicants] referred in its submission to threats having been made against its workplace health and safety officers, but did not provide evidence to indicate that any such behaviour was directly connected with the issue of air quality concerns for tunnel workers. It referenced an article appearing in the Brisbane Times on 28 June 2021 that reported that CRR workers had ‘downed tools’ between 18 and 21 June 2021 while the JV and CRRDA addressed issues involving dust emanating from the conveyor belt carrying tunnel spoil to the surface… The article indicates that industrial action in the form of a brief work stoppage was taken by workers over dust concerns, rather than describing any acts or behaviour that would fall within the scope of either of the exemption provisions. (Applicants’ emphasis added) [138] The Information Commissioner concluded that, taking into account all of the relevant facts and circumstances, she was “not satisfied that there is sufficient evidence before me to establish real and substantial grounds for believing that disclosure under the RTI Act of the data contained in the Reports” would have the requisite effects.149 Contentions on appeal [139] The Applicant submitted that the Information Commissioner appeared to have required direct evidence linking information about air quality testing, in particular, to instances of endangerment, harassment or intimidation, and had then had regard to the absence of such evidence in her conclusion that the Reports were not ‘exempt information’.150 [140] The Applicants submitted that this involved error, in that the Information Commissioner’s fixation on the absence of direct evidence led her to overlook the possibility that a link between information about air quality testing and the relevant conduct might instead be inferred (and that relevant inference could be safely drawn in the circumstances of this case).151 It was argued that the Information Commissioner’s misconstruction, or misapplication, of principles led her not to countenance properly (or at all) the possibility that the inference might be drawn.152 146 Decision, [80]. 147 Decision, [81]. 148 AS [42], quoting Decision, [83]-[84]. 149 Decision, [85]. 150 AS, [43]. 151 AS, [44]. 152 ARS, [45]. -- 28 of 31 -- 29 [141] The Applicants submitted that the Information Commissioner’s approach seemed to originate from earlier parts of the decision, where the Information Commissioner:153 (a) expresses the principle that ‘the expectation [of the endangerment, harassment or intimidation] must arise as a result of disclosure of the specific information in issue, rather than from other circumstances’; and (b) observes that the causal link between the disclosure of the information and the expected conduct ‘has been found to exist where there is evidence that such conduct occurred as a result of the release of similar information in the past’. [142] With respect to the first part, the Applicants submitted that the principle on which the Information Commissioner relied did not suggest that the perceived risk which founded the expectation must be proved to have materialised in the past after the disclosure of the information in issue (or similar information).154 It was not necessary that the evidence of the risk be direct evidence of the risk becoming manifest, as opposed to evidence from which the risk inherent in disclosure might be inferred.155 [143] With respect to the second part, the Applicants submitted that the authorities on which the Information Commissioner relied did not include a requirement that a party resisting disclosure must show that the conduct about which the concerns are maintained occurred as a result of the release of similar information in the past.156 Rather, the authorities suggest that that if a party can show as much, this will be treated as strong evidence in support of the conclusion that such conduct will occur as a result of the release of the information in the future.157 [144] The Applicants submitted that in this case, it was not possible for them to give evidence of this kind, because the relevant information had not been disclosed, so it could not be shown by direct empirical evidence that the disclosure of the information would axiomatically result in endangerment, harassment or intimidation.158 [145] The Applicants submitted that, taking these two matters together, the Information Commissioner had:159 (a) elevated to an undue extent the importance in this case of direct evidence that endangering, harassing or intimidatory conduct occurred as a result of the release of similar information in the past; (b) the weight that the Information Commissioner has placed on the need for evidence of a link between the information and the relevant conduct is the result of a misconstruction, or misapplication, of certain principles drawn from prior authorities; and (c) the Information Commissioner’s elevation of the importance of such evidence has led her not to draw (or take into account) an inference – which was otherwise 153 AS, [45]. 154 AS, [47]. 155 AS, [47]. 156 AS, [48]. 157 AS, [48]. 158 AS, [49]. 159 AS, [50]. -- 29 of 31 -- 30 available on the findings that she had made – linking information about air quality testing to endangering, harassing or intimidatory conduct. [146] The Applicants submitted that the Information Commissioner had erred in law by taking irrelevant considerations into account, and/or failing to take relevant considerations into account.160 The Applicants submitted that, in the alternative, the Information Commissioner’s approach to this point involved an error of law in that it was manifestly unreasonable.161 Conclusions with respect to the Decision [147] It is apparent from a fair reading of the Information Commissioner’s decision that she did not misapprehend or misconstrue the relevant principles in the manner for which the Applicant contends. [148] The context in which the Information Commissioner made the comments identified by the Applicant is outlined above. [149] This included the Information Commissioner identified the relevant principles, including that what was required was “real and substantial grounds for expecting the relevant occurrence, which can be supported by evidence or cogent reasoning”.162 [150] Each of the two parts of the reasoning identified by the Applicants sits in a paragraph which clarifies the context of those principles, and the principle itself is, as is acknowledged by the Applicant, supported by the authorities cited by the Information Commissioner.163 [151] The Information Commissioner considered that a range of facts and circumstances were relevant to assessing that issue, including in line with the principle she had earlier stated, “whether any evidence exists to indicate that the release of information of a similar nature in the past has given rise to instances of endangerment of life or physical safety, or to instances of serious acts of harassment or intimidation”.164 [152] The Information Commissioner noted that the Applicants “rely chiefly on acts of union aggression, harassment and intimidation against the [Applicants’] workers to support the application of Sch 3, items 10(1)(c) and (d)”, and the evidence provided comprised links to numerous media reports about instances of union action in relation to Cross River Rail operations which involved various past behaviours and conduct.165 [153] The Information Commissioner accepted that at least some of the activity in the media reports could reasonably be regarded as harassing or intimidatory in nature.166 However, the Information Commissioner identified that the issue for her to determine was “whether disclosure under the RTI Act of the specific information contained in the Reports could reasonably be expected” to endanger a person’s life or physical safety and/or result in a person being subjected to a serious act of harassment or intimidation.167 160 AS, [51]. 161 AS, [51]. 162 Decision, [73]. 163 AS, [47], [48]. 164 Decision, [82]. 165 Decision, [79]. 166 Decision, [80]. 167 Decision, [81]. -- 30 of 31 -- 31 [154] We agree with the submissions of the First Respondent that the Information Commissioner’s reasoning in the impugned paragraphs was an application of the principles she had earlier expressed, in the context of responding to the evidence before her, and the submissions made by the Applicants on the effect of that evidence.168 We do not consider that the Information Commissioner’s reasons demonstrate that she misapprehended that the Applicants were required to prove, by direct evidence, that the expectation of instances of endangerment, harassment or intimidation arises as a result of disclosure of the information (or similar information), rather than by evidence from which that might be inferred. Nor has the Information Commissioner misapprehended that the Applicants were required to demonstrate that the relevant conduct occurred as a result of the disclosure of the information (or similar information) in the past. Rather, she identified that this was one circumstance where the relevant causal link had been found to exist;169 however, she did not think this circumstance was present in the case before her. [155] The Information Commissioner concluded that, taking into account all of the relevant facts and circumstances, she was “not satisfied that there is sufficient evidence before me to establish real and substantial grounds for believing that disclosure under the RTI Act of the data contained in the Reports” would have the requisite effects.170 [156] We consider that the language used by the Information Commissioner was not indicative of her requiring direct evidence, in the manner for which the Applicant contends. It was used to indicate her consideration of the submissions made, and evidence before her, much of which appeared to take the form of media reports, and her state of satisfaction regarding that evidence. It is apparent that the Information Commissioner was aware, from the principles outlined in her reasons, that this did not necessarily require direct evidence of a causal connection, and it was possible, in principle, to infer such a connection. [157] We therefore consider the Information Commissioner has not erred in the manner asserted by the Applicant, and these grounds have not been made out. Orders [158] Accordingly, the Tribunal orders that the appeal is dismissed. 168 RS, [62]-[65]. 169 Decision, [77]. 170 Decision, [85]. -- 31 of 31 --