A Review of the National Indigenous Reform Agreement over the past decade: not in the public interest to share it with the public

                                                                ‘In nature’s infinite book of secrecy

A little I can read’

Antony and Cleopatra

Act One, scene 2

In December 2018, COAG established the Joint Council on Closing the Gap (link here).

The extract from correspondence from the NIAA is self-explanatory and relates to the status of a review of the National Indigenous Reform Agreement (NIRA) established by COAG in 2008.

The correspondence outlines the ostensible reasons for a decision to withhold release of a copy of the review in accordance with the Freedom of Information Act 1982. It does however provide a glimmer of insight into the processes of negotiation currently underway within the Joint Council. I hope to explore these issues in a subsequent post shortly.

The reliance on the Commonwealth state relations exemption appears to be incorrect as the review does not appear to fall within section 47B (b) of the FOI Act (see text below). The other ground of exemption depends on a balancing of the public interest. The factors listed as being against disclosure appear farfetched and to my mind tendentious. I invite readers to form their own opinion.

Taking a more global view, it is little wonder that the public at large is losing trust in government and politicians when government is not prepared to deal openly with the strengths and weaknesses of major strategic public policy frameworks. This is just one example.

[Extract from Correspondence from NIAA dated 24 October and emailed 28 October 2019]:

OFFICIAL

FOI/NIAA/1920/023/IR

FREEDOM OF INFORMATION ACT 1982

REQUEST BY: Michael Dillon

DECISION BY: Group Manager (name and position redacted)

NOTICE OF INTERNAL REVIEW DECISION

Dear Mr Dillon,

I refer to your email, dated 26 September 2019, to the National Indigenous Australians Agency (the NIAA) in which you sought an Internal Review under section 54 of the Freedom of Information Act 1982 (Cth) (the FOI Act), of the original access decision (the original decision) provided to you on 25 September 2019, in which you sought access to the following:

The most recent communique of the Joint Working Group on Closing the Gap (and which was recently published on the PMC web site (www.closingthegap.pmc.gov.au/jointcouncil) included the following text:

"The Joint Council considered a review of the National Indigenous Reform Agreement (NIRA), completed by the Partnership Working Group, and agreed to develop a new National Agreement on Closing the Gap, covering the next ten years, continuing the NIRA’s successful elements, strengthening others and addressing foundational areas that were previously excluded from consideration."

In accordance with the provisions of the FOI Act, I would like to request a copy of the final version of that review.

Authorised decision-maker

I am authorised to make this decision in accordance with arrangements approved by the Agency’s Chief Executive Officer (CEO) under section 23 of the FOI Act.

Matters Taken Into Account

In making my decision, I have had regard to the following:

• the FOI request;

• the document relevant to the FOI request;

• your correspondence of 26 September 2019;

• the FOI Act; and

• the Guidelines issued by the Australian Information Commissioner under section 93A of the Freedom of Information Act 1982 (FOI Guidelines).

Decision

I have decided to affirm the original decision to refuse access to the document, in full, on the basis that it contains information that is exempt under section 47B (Commonwealth-State relations) and section 47C (deliberative matter) of the FOI Act. The reasons for my decision are set out below.

Reasons

The requested document is a reflective assessment of the National Indigenous Reform Agreement (NIRA). The document contains input from all members of the Joint Council on Closing the Gap (the Joint Council). This is one of the key documents currently being used by the Joint Council to develop a new National Agreement on Closing the Gap (National Agreement).

Section 47B of the FOI Act – Commonwealth-State relations

Section 47B of the FOI Act provides that a document is conditionally exempt if disclosure of the document:

b) would divulge information or matter communicated in confidence by or on behalf of the Government of a State or an authority of a State, to the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth.

In your submission of 26 September 2019, you queried ‘whether there was a requisite expectation of confidentiality given all states and the NT as well as up to 40 plus constituent member organisations of the Peak Council, are all potentially privy to the contents of the review.’ In addition, you requested ‘further consideration to the issues of balancing the public interest against the interests of the Joint Council members in operating in secret, given that the review relates to an overarching policy framework put in place over ten years ago.’

The Joint Council consists of forty (40) members made up of representatives from the States and Territory Governments and peak Indigenous bodies. The requested document contains frank assessments of the success and failures of the Closing the Gap program, which were provided on the mutual understanding of confidence to the restricted members of Joint Council. I am therefore of the view that the requisite expectation of confidentiality is satisfied as the audience is limited to the Joint Council, being its 40 members.

Accordingly, I consider the requested document to be conditionally exempt under section 47B of the FOI Act. Where a document is assessed as conditionally exempt, access must be given subject to the public interest test detailed in section 11A(5) of the FOI Act.

Public interest

Section 11A(5) of the FOI Act provides that the requested document must be disclosed to the applicant unless its disclosure would, on balance, be contrary to the public interest.

In determining whether disclosure would be contrary to the public interest, the FOI Act requires a decision-maker to balance the public interest factors in favour of disclosure against the factors against disclosure.

Section 11B(4) of the FOI Act sets out the following factors that the decision-maker must not take into account when deciding whether access to the document would be contrary to the public interest:

• access to the document could result in embarrassment to the Commonwealth Government, or cause a loss in confidence in the Commonwealth Government;

• access to the document could result in any person misinterpreting or misunderstanding the document;

• the author of the documents was (or is) of high seniority in the agency to which the request for access to the document was made; or

• access to the document could result in confusion or unnecessary debate. I have not taken any of the above factors into account in making my decision.

My consideration of the public interest in relation to the application of section 47B of the FOI Act follows.

Factors favouring disclosure

I have considered the factors set out in section 11B of the FOI Act that may operate in favour of disclosure and acknowledge that disclosure of the request document may:

• promote the objects of the FOI Act;

• would inform a debate on a matter of public important; and

• promote effective oversight of public expenditure.

Public interest factors against disclosure

The factors against disclosure in relation to section 47B, in my view, are that disclosure:

• would inhibit the interests of good government and sound public administration;

• would restrict the candour and utility of future discussions;

• may impair the Commonwealth’s ability to obtain information for the purposes of assessing the delivery of Commonwealth programmes, namely all related Closing the Gap initiatives;

• could reasonably expect to harm the interests of a group of individuals, namely Aboriginal and Torres Strait Islander peoples. In particular, release could reasonably be expected to diminish the NIAA’s ability to manage its ongoing service delivery operations relating to Closing the Gap initiatives in an effective and efficient manner; and

• could reasonably expect to prejudice the management function of the NIAA. In particular, the NIAA’s ability to manage its functions in meeting the Government’s Closing the Gap agenda priorities, policies and programmes for Aboriginal and Torres Strait Islander peoples.

After careful consideration of all relevant factors, I have decided that the factors against disclosure of the requested document outweigh those favouring disclosure. I am of the view that disclosure of the request document would, on balance, be contrary to the public interest at this time.

I am therefore satisfied that the requested document is conditionally exempt under section 47B of the FOI Act.

Section 47C of the FOI Act – deliberative processes

Section 47C of the FOI Act provides that a document is conditionally exempt if its disclosure would disclose matter (deliberative matter) in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency, a Minister or the Government of the Commonwealth.

In order to determine whether a document is conditionally exempt, the FOI Guidelines explain at paragraph 6.58 that:

A deliberative process involves the exercise of judgement in developing and making a selection from different options: The action of deliberating, in common understanding, involves the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one's course of action. In short, the deliberative processes involved in the functions of an agency are its thinking processes – the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action.

In your correspondence of 26 September 2019 you contend that ‘further detailed consideration be given to whether this is in fact a deliberative comment; to whether factors in favour of release were adequately identified’.

Upon review of the document, I am satisfied that the document contains opinions, advice and recommendations provided for the purpose of consideration of the Joint Council in developing a new National Agreement. These assessments were provided to the Joint Council in confidence, to assist in their deliberations on the new National Agreement. The development of the National Agreement is still ongoing and the premature release of the requested document would substantially and adversely impact the effectiveness of the National Agreement and the future success of Closing the Gap initiatives.

I therefore consider the requested document to be conditionally exempt under section 47C of the FOI Act.

Public Interest

I have not taken any of the irrelevant factors listed above into account in making my decision.

Factors in favour of disclosure

The particular factors in favour of disclosure in this case are that disclosure would:

• promote the objects of the FOI Act;

• improve public over sight and scrutiny of government decision making; and

• promote effective oversight of public expenditure.

Factors against disclosure

The factors against disclosure in relation to section 47C of the FOI Act are, in my view, that disclosure:

• would inhibit the interests of good government and sound public administration;

• would restrict the candour and utility of future discussions relating to the ongoing development of the National Agreement;

• would restrict the candour, completeness and utility of future advice;

• may impair the Commonwealth’s ability to obtain information for the purposes of assessing the delivery of Commonwealth programmes, namely all related Closing the Gap initiatives;

• would reasonably expect to prejudice the management functions of the NIAA. In particular, the NIAA’s ability to manage its functions in meeting the Government’s Closing the Gap agenda priorities, policies and programmes for Aboriginal and Torres Strait Islander peoples.

After careful consideration of all relevant public interest factors I have decided that, on balance, the factors against disclosure outweigh those favouring disclosure. I am therefore of the view that disclosure of the requested document would, on balance, be contrary to the public interest at this time.

I am therefore satisfied that the requested document is exempt under section 47C of the FOI Act.

[Further content of the document related to review rights, complaint rights, contact details, and a signature block and date].                                     

Select Committee on the effectiveness of the Government’s northern Australia development agenda

On 4 July 2019 the Senate agreed to the establishment of the Select Committee on the effectiveness of the Australian Government’s Northern Australia agenda.

The committee is due to report on the last sitting day of 2020.

Information relating to the Select Committee including membership, the terms of reference and copies of submissions are available on the Committee’s web page.

A link to Committee home page can be found here

The Terms of Reference state:

That a select committee, to be known as the Select Committee on the effectiveness of the Australian Government’s Northern Australia agenda, be established to inquire into and report on the effectiveness of the objectives, design, implementation and evaluation of the Australian Government’s Northern Australia agenda, with particular reference to:

facilitation of public and private investment in infrastructure and economic development;

economic and social benefit arising from that investment for Northern Australians, in particular First Nations people;

funding models and policy measures that capture the full value of existing and emerging industries;

measures taken to develop an appropriately skilled workforce;

emerging national and international trends and their impact on the Northern Australia agenda; and

any related matters.

Submissions of particular relevance to Indigenous issues (link here) include:

#13 by Jon Altman and Francis Markham,

#58 by the Cape York Aboriginal Land Council,

#62 by the North Australia Indigenous Land and Sea Management Alliance (NAILSMA), and

#67 by Michael Dillon (the author of this blog).

Submission #80 by the Western Australian Government  is also worth reading, not least for the information it includes relating to the Indigenous Reference Group on Northern Australia (IRG) (see section (b) of the WA submission) where the WA government notes that the Commonwealth and relevant state and territory jurisdictions are developing a ‘Northern Australia Indigenous Development Accord’ aimed at capturing the extensive and collaborative work of the IRG’ and providing ‘a framework for Forum Government’s to align efforts to advance Indigenous economic development in northern Australia’. As far as I am aware, neither Minister Canavan nor Minister Ken Wyatt, nor their departments, have announced or discussed the proposed Accord. Certainly neither Minister’s departmental website provide any information on these proposals.

The key issue from my perspective will be to assess the extent to which the proposed Accord includes substantive policy initiatives, particularly in relation to land reform and native title, funding of PBCs, social and community housing in remote communities, and of course, access to public and private sector development finance for economic activities in remote communities. These are all issues I have argued for in previous blog posts. The WA submission goes on to advocate adjustments to the Investment Mandate of the NAIF to better support Indigenous economic (and hopefully social) investments in northern development. This is an issue that I have argued for over the past year or so in this blog and elsewhere.

To sum up, the Select Committee has the potential to both re-set the agenda in terms of Indigenous social and economic development in northern Australia, and to re-energise the Government’s current policy framework, which to my mind is big on rhetoric, but very short on substantive initiatives.

Progress at last: NAIF and Indigenous interests

The sun with one eye vieweth all the world

Henry VI, Part One, Act 1, scene 4

Given that I have been critical of the lack of Indigenous engagement with the North Australia Infrastructure Fund (NAIF) – see my previous post here – I was pleased to learn that the NAIF has recently approved a $12.5m loan to and Indigenous mining project. The project is based on an orebody known as Wonmunna (since renamed First Iron) purchased from Fortescue mining in 2018, and will involve the sale of iron ore to Fortescue Mining Group (FMG) and its transport to FMG’s Cloudstreet project under an agreement entered into in 2017 (link here).

On 19 September, Minister Canavan announced NAIF support for an Aboriginal owned mining project in the Pilbara (link here). The Australian Aboriginal Mining Corporation (AAMC) will operate the project, based on two small deposits close to the BHP’s Yandi and West Angelas mines and the Rio Tinto Yandicoogina and Area C mines in the Pilbara. See the map in this National Indigenous Times article on the project (link here).

AAMC is privately owned by 21 shareholders. AAMC has 51% beneficial Aboriginal ownership with Aboriginal owned Carey Mining owning 25% and traditional owners of the areas to be mined apparently making up some or all of the balance of Indigenous owned equity (link here). Carey Mining is the largest shareholder in AAMC. It is owned and managed by Daniel Tucker, who is also the Chair of AAMC. Tucker is also a member of the Prime Minister’s Indigenous Advisory Council.

The AAMC media release (link here) provides the most detailed information on the overall project. The NAIF funding will be complemented by a $14.6m facility from Westpac, and the balance of capital required will be obtained through an equity raising exercise.

On its face, this is all good news and represents a positive step forward for Indigenous interests in the Pilbara and more generally.

It also represents a small window into a much larger political, economic and policy realm where private interests and public sector policies (especially Indigenous related policies) intersect and interact. Much of what is occurring in this domain is cloaked by the limited public information available in relation to private sector and commercial activity and contractual agreements (particularly where the interests involved are not publicly listed corporate entities). Thus, it is clear that Indigenous interests have been major financial beneficiaries in the resource development boom in the Pilbara (and other parts of WA and Qld) over the past two decades. However, policymakers and indeed the public at large, have very little information regarding the quantum of funds flowing to Indigenous interests, the nature of the non-financial provisions in the agreements that are being entered into, and indeed the fairness and probity of the negotiation processes that have taken place and are underway.

Of course, it is arguable that these are not matters for government, and the market ought to be allowed to do its job. The counter argument is that these outcomes are a direct result of the operation of Commonwealth (and to a lesser extent, state) legislation, in particular the Native Title Act, and governments have a responsibility to ensure that the outcomes of legislation are consistent with broader societal expectations. 

Indeed, if we were to conceptualise the role of government as a manager of societal risks, then, one might make an argument for much greater transparency by both commercial and Indigenous interests in relation to the outcomes of their negotiations over land use and resource development. Potential risks include unforeseen adverse environmental consequences, the implications of mines not being effectively remediated after their closure, and the implications of high levels of income and wealth inequality within Indigenous communities, to mention just a few potential examples.  Unfortunately, governments tend not to see themselves as societal risk managers, but rather operate within ideological frames focussed on ‘development’ or ‘jobs’. While economic development, growth and jobs are worthwhile objectives, they ought not to be pursued at all costs, without a clear assessment of the societal risks embedded within.

In the present case of the AAMC First Iron project, a range of questions remain unanswered. While one Indigenous shareholder has been identified, the balance of the Indigenous ownership remains shrouded in mystery. In the absence of this information, it is not possible to be entirely confident that Indigenous interests ‘control’ the policies and decisions of AAMC (notwithstanding its name and the majority beneficial ownership). A second set of unanswered questions relate to AAMC’s relationship with FMG, which itself has a somewhat chequered history of involvement with Indigenous interests (link here and here). It seems likely that at least from FMG’s perspective, the arrangements with AAMC are more than commercial and play into the complex commercial competition between the major miners (BHP, Rio, and FMG) in the Pilbara. Of course, this is not necessarily a negative factor for Indigenous interests, but it makes assessing the merits of the AAMC project that much more opaque.

Finally, while the decision by NAIF to assist an Indigenous commercial project is welcome, it is worth bearing in mind the scale of this decision. NAIF has $5bn available for lending, so the $12.5m loan represents around 0.25 percent of its funds. There remains a long way to go if NAIF can be said to be addressing the infrastructure needs of northern Indigenous communities equitably. This decision is at least a start.

Stepping back to a more panoramic viewpoint, this decision represents just one rather narrow and opaque window into the complex and heterogeneous ways in which mainstream interests and institutions engage and interact with Indigenous Australia. In an environment where governments are increasingly focussed on Indigenous policy narratives built around the economic development opportunities of Indigenous communities and citizens, the sheer opacity of this window is emblematic of a deeper structural problem. Policymakers (and commercial interests) spruik individual events (such as the NAIF loan and the start up of the First Iron mine) as policy successes without themselves having any idea or understanding of the totality of the social, cultural and economic consequences both positive and negative of these events. 

The normal approach of policymakers to managing this policy ignorance is to initiate an inquiry or review when a serious problem emerges. A better, more proactive, and potentially preventative approach would be to focus policy resources on increasing the transparency around commercial activities. This is particularly justified for those interests receiving publicly sourced financial assistance whether in the form of tax expenditures or write-offs, and concessional NAIF loans and the like. To take just one example, it is extraordinary that taxpayers do not have low cost or free access to the publicly available corporate records held by ASIC. In relation to NAIF, there is a range of matters that might usefully be placed on the public record once decisions have been taken (I made a number of specific suggestions in an as yet unpublished submission to this Senate Inquiry: link here).

Where commerce and policy intersects, sunlight is invariably a cheap and effective contributor to managing societal risk!