Let’s
talk of graves, of worms, and epitaphs,
Make
dust our paper, and with rainy eyes
Write
sorrow on the bosom of the earth.
Richard II, Act three, Scene two.
The NIAA has
provided answers to a series of Questions on Notice lodged By Senator David
Pocock following the last Estimates Hearings in November 2024 (link
here). The questions related to the ongoing situation on Groote Eylandt,
the status of various issues within the Anindilyakwa Land Council and the NIAA’s
actions throughout this rather sorry and complex saga.
Given that
there appears to be few external parties taking an interest in these issues
(apart of course from the ongoing NACC investigation which may not report for
months), I feel it is incumbent upon me to provide some commentary if only for
the record. For the larger context, I recommend readers look at my previous
post and in particular, the article I co-authored with Bill Gray in the
Mandarin (link
here).
In this post, I
have focussed on those answers which I consider to be inadequate. In a subsequent
post, I will address the issues raised by the answer to Question #8.
I have italicised
the questions and the NIAA answers and indented my comments in relation to each
answer.
Senator
Pocock Question #1
Will the
Minister initiate an independent, comprehensive, forensic audit into the
administration and operations of the ALC and of those Aboriginal Corporations
that received funding determined by the ALC, so that the new Board of the ALC can
move ahead in confidence to regain the trust of the Anindilyakwa community and
other key stakeholders, and achieve the standard of governance that will ensure
the ALC can properly represent its people and achieve its mission? If not, why
not?
NIAA Answer
#1
The former
Minister for Indigenous Australians, the Hon Linda Burney MP referred concerns
regarding Anindilyakwa Land Council (ALC) governance and operations to the
National Indigenous Australians Agency (NIAA) for review and action as
required. In response, the NIAA commissioned an independent review of the ALC’s
responses to the Australian National Audit Office (ANAO) governance audit and
has subsequently been overseeing the ALC’s actions to improve its governance,
transparency and accountability.
The NIAA has
and will continue to refer all relevant matters to law enforcement and other
agencies as required.
Comment
mcd #1
A
preliminary and more general point: The NIAA is under the direct control of the
Minister. Both she and her agency have regulatory responsibility for the ALC
(and for the Registrar of Aboriginal Corporations who is the regulator for
CATSI Corporations who are the beneficiaries of section 64(3) payments). Any
shortcomings of the NIAA are ultimately the responsibility of the Minister. Any
failure to answer questions asked are a failure of the Minister as well as her
agency.
The
Minister/NIAA have not answered the question regarding the forensic audit. The
so-called ‘independent’ review commissioned from BellchambersBarrett was constrained
in its terms of reference and focussed only on the formal ANAO recommendations
and not on the wider issues which were identified by the ANAO in its fine-grained
analysis. The NIAA and the ALC were involved in finalising the BellchambersBarrett
Report, and for this reason it was clearly not independent. The answer refuses
to contemplate an independent forensic review and fails to provide any
assurance that this is covered off in some other way. The deeper question this
raises is why? Why won’t the Minister initiate the action required to get to
the bottom of what has transpired on Groote? Why doesn’t she want to the public
to know?
Senator Pocock
Question #3
Can the
Minister confirm that the conflicts of interest identified by the ANAO in May
2023 and again more recently in the BellchambersBarrett review of August 2024,
have now been addressed to the satisfaction of the Minister and NIAA? If not, what are the issues still
outstanding?
NIAA Answer
#3
The ALC has
developed a schedule of activity to address the ANAO and Bellchambers Barrett
recommendations, including those associated with conflicts of interest
management. The NIAA has been overseeing the ALC’s performance of those
activities and is satisfied that implementation of acceptable arrangements for
conflict of interest management will be progressive over the forthcoming
months. The conflicts of interest noted in relation to the former ALC Chief
Executive Officer (CEO) have been resolved following the termination of Mr Hewitt
and his removal from positions in all associated entities. The current ALC
Board Chair does not hold any of the positions that gave rise to the conflict
of interest concerns in relation to the former Board Chair.
Comment
mcd #3
The
question has not been answered. The answer makes clear that the Minister is not
yet in a position to be satisfied (“acceptable arrangements for conflict-of-interest
management will be progressive…”), yet they have not gone on to identify the
issues that remain in progress.
The
unqualified assertion that the termination of Mr Hewitt and the election of a new
Chair addresses the conflicts of the past is problematic. It ignores the
complex web of influence previously exercised by the former CEO and his spouse,
and the inevitable expectations on Groote that the benefits flowing form those
prior arrangements will continue. The current status and oversight of the
various positions and financial interests previously held by Mr Hewitt’s spouse
remain completely obscure.
One
important but unintentional revelation of this answer is the reference to Mr
Hewitt’s ‘removal from positions in all associated entities.’ How was
this achieved? Did the Minister and NIAA give Mr Hewitt and his spouse some
kind of ultimatum to resign (and if so what was the quid pro quo) or did
the ALC direct the ‘associated entities’ to dismiss him, thus confirming that
they in fact exercise control over these entities? The public interest requires
that clarification and answers to these questions be provided.
Senator
Pocock Question #4
Has the
Minister/NIAA approved any arrangements for the management of the conflicts of
interest that were identified in the ANAO and Bellchambers Barrett reports? If
so, will the Minister please table those arrangements.
NIAA Answer
#4
Formal
approval of the ALC’s conflict of interest arrangements is the responsibility
of the ALC Board in consultation with the ALC Audit Committee and ALC
management.
Comment
mcd #4
The
implication is that the Minister and NIAA have not approved any arrangements
for the management of conflicts of interest. The ALC has been riven with actual
and potential conflicts of interest for at least six years; this Blog has previously
identified and discussed many of them. Without ministerial engagement and
approval of the actions being put in place, there is no guiderail in place to prevent
the re-emergence of conflicted influence over decision-making in the future. Moreover,
without a forensic audit, it is unclear whether the pre-existing conflicts of
interest led to misallocation of funding and resources (with detrimental
impacts on individuals and corporations on Groote), and whether there is
remedial action required to rectify such misallocations. The laissez-faire
approach of the Minister and NIAA is patently inadequate and represents in my
view a serious lapse of ministerial responsibility. The minister has numerous
and far-reaching powers under ALRA to play a direct role in the ALC’s
administration for however long it takes to establish a new set of watertight
operational procedures.
Senator
Pocock Question #5
Can the
Minister confirm that the Aboriginal residents of Groote Eylandt have not been
subject to predatory commercial behaviour and financial losses arising from the
actions of the former CEO, his spouse and the former Chairman of the ALC? If
not, what action is she taking to ascertain the extent of the potential losses
to the community?
NIAA Answer
#5
As
previously noted, the former Minister referred concerns regarding ALC to the
NIAA for review and action as required. The NIAA has and will continue to refer
all relevant matters to law enforcement and other agencies as required.
Comment
mcd #5
One
obvious problem with this answer is that not all commercially predatory
behaviour will be illegal or corrupt. If it is the case that legal and non-corrupt
predatory behaviour has occurred, the question becomes: is the Minister
prepared to allow the officers and staff of agencies within her portfolio to
engage in such behaviour, and more directly, why was she not prepared to take
action within her regulatory powers when she became aware of such activities
rather than hiding behind the convoluted and time-consuming processes of law
enforcement agencies?
Given
the deliberate policy of minimising the disclosure of relevant information, we
do not know if the issue of potential predatory commercial behaviour was even
of concern to the Minister or her predecessors, nor whether it is of concern to
her today.
What
were the concerns that she referred to the NIAA and onwards to law enforcement?
When were those concerns formally referred to the various agencies? Which
agencies received referral? How long transpired between the Minister and her
agency becoming aware of the concerns and referrals being made? Why won’t she
indicate the general nature of those concerns? I am sure the people who are the
subject of any investigations understand that investigations are underway. Why
keep the public in the dark? What has the Government got to hide?
The
bottom line is that the answer to this question is deliberately designed to
hide crucial accountability information. This is not in the public interest.
Senator
Pocock Question #6
According to
the ALC website, in the period 2019 – 2023, the ALC distributed $361m of s64(3)
monies to various corporations and organisations on Groote Eylandt. Can the
Minister/NIAA confirm that these distributions were determined by the ALC in
compliance with the provisions of the ALRA, including s23(3) & s23 AA of
the Act?
NIAA Answer
#6
Distributions
were determined by the ALC in compliance with the provisions of the Aboriginal
Land Rights (Northern Territory) Act 1976 (ALRA).
Comment
mcd #6
This
answer exudes unwarranted confidence. In my view it is both misleading and wrong.
Section 23AA requires the ALC to undertake its functions inter alia, in
a fair manner. The ANAO identified a series of payments to corporations where
the ALC CEO played a major role in the application and/or was on the Board or
had a conflict. The obverse of this favouritism is unfairness to the
traditional owners who might otherwise have been beneficiaries.
The
ALC’s effective control of associated corporations (in my view implicitly
acknowledged in the actions taken by the NIAA to have Mr Hewitt vacate all his
positions on associated entities) is itself an effective breach of the
legislative requirement that land councils pay 64(3) payments to (independent) corporations
and not to an entity it controls.
The
provision (s.23(1)(ea)) that allows land councils to assist local corporations
has a rider that such assistance must not cause the land council ‘to incur
financial liability or enable it to receive financial benefit’. The ANAO found
instances where the ALC could not demonstrate that this was the case. More
substantively, where a land council effectively controls a corporation, then
the liabilities of the corporation are those of the land council. This
inevitably leads to a breach of section 23(1)(ea).
In
a grave error of judgment, the NIAA and Minister appear to have lost sight of both
the first and second Laws of Holes (link
here). They should stop digging, and the Aboriginal citizens on Groote are
still in a deep hole.
Conclusion
The answers to
the questions above are in my view deliberately obfuscatory, are incomplete and
by failing to provide the full story have the effect of misleading the Senate.
In some cases, they are just wrong. This is a continuation of the approach
adopted from the first day the ANAO tabled its performance audit in May 2023, which
is best described as a policy of ‘nothing to see here!’ At best, this involves
putting the political interests of the Government above the public interest. At
its worst, it is much more serious than that. It erodes trust in Government and
diminishes the quality of our democracy.
The failure to
get to the bottom of what has transpired on Groote (not all of which will
necessarily meet the definition of corruption, or criminal behaviour) will lead
to ongoing and deep-seated disadvantage to the Aboriginal population of Groote
Eylandt and may have wider implications for the viability of the core
institutions established by the Commonwealth’s NT land rights legislation. These
disadvantages will certainly be political, and financial, but most importantly
they will also have social consequences for the fabric of community life on
Groote. This is the tragedy that is unfolding.
21 February
2025
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